HomeMy WebLinkAboutC2020-380 - 8/25/2020 - Approved HOME GRANT AGREEMENT
between the
CITY OF CORPUS CHRISTI,TEXAS
and
WAYFORWARD
and
FISH POND LIVING AT CORPUS CHRISTI, LP
STATE OF TEXAS §
COUNTY OF NUECES §
This HOME GRANT AGREEMENT(hereinafter"AGREEMENT") is hereby made and entered
into to be effective as of the 1st day of November, 2020, by and between the CITY OF CORPUS
CHRISTI,TEXAS(hereinafter the "City"), a Texas Home Rule Municipal Corporation, acting by and
through its City Manager or the City Manager's authorized designee, WAYFORWARD a Texas
nonprofit corporation (hereinafter "BORROWER"), FISHPOND LIVING AT CORPUS CHRISTI, LP
("OWNER")
The parties to this Agreement have severally and collectively agreed and by the execution
of this Agreement are bound to the mutual obligations and to the performance and
accomplishments of the tasks described in this Agreement.
WHERAS, the Owner is the owner of that certain project known as "FishPond Living at
Corpus Christi" (the "PROJECT"), which will consist of 111 units senior affordable housing and 1
employee occupied unit; and
WHEREAS,the general partner of the OWNER is FISH POND CORPUS CHRISTI MANAGER,
LLC a Texas limited liability company, (the "GP") for which the members are Alan Stalcup, David
Fournier and WAYFORWARD a Texas nonprofit corporation; and
WHEREAS, the CITY has received certain funds from the U.S. Department of Housing and
Urban Development ("HUD") under Title II of the National Affordable Housing Act of 1990, (P.L.
101-625) for utilization in connection with its HOME Investment Partnerships Program
(hereinafter "HOME Program"); and
SCANNED
WHEREAS, the CITY has adopted a budget for such funds and has included therein the
expenditure of $350,000 of FY 2019 HOME funds in the form of a subsidy loan to BORROWER
with 0.00% simple interest for a 20-year term with payments, if any, amortized over 40 years
(hereinafter,the "Loan"); and
WHEREAS, BORROWER shall loan the proceeds of the Loan to OWNER (the"Subordinate
Loan"), to be used by OWNER for the construction and development (collectively, hereinafter,
"construction") of the "Project") upon the terms and conditions agreed upon between Borrower
and Owner; and
WHEREAS, no payment of principal and/or interest shall be payable under the Loan unless
(and subject to the next sentence and the expiration of all applicable notice and cure periods) an
Event of Default (as defined in the Deed of Trust) has occurred and is continuing (beyond the
expiration of all applicable notice,grace and cure periods) under(a)this Agreement, (b)the terms
of the Note or any of other Loan Documents, or (c) the Restrictive Covenant of Affordability;
provided, however, the CITY, in its reasonable discretion, may waive in full or in part any
requirement of this sentence. Upon the Maturity Date (as defined in the Note), if no material
Event of Default has occurred and is continuing, the amount of the Loan which remains unpaid
shall be deemed paid by BORROWER. For the avoidance of doubt, there shall be no deemed
payment under the Subordinate Loan; and
WHEREAS, as a part of the implementation and management of the Project by OWNER,
it is proposed that the Loan be made to BORROWER, who then may loan the proceeds to the
Owner; and
WHEREAS, as consideration for BORROWER making the loan to OWNER, OWNER shall
execute a covenant ("Restrictive Covenant of Affordability"), to bind the Property for a period
of twenty (20) years, to the terms set out in this Agreement and in the sample of the Restrictive
Covenant of Affordability that is attached to this Agreement as Exhibit B. The executed
Restrictive Covenant of Affordability will then replace the sample Exhibit B attached to this
Agreement. The text of the executed Restrictive Covenant of Affordability is then, by agreement
of the parties, incorporated into this Agreement by reference, and the executed Restrictive
Covenant of Affordability will be recorded in the Real Property Records of Nueces County,Texas.
NOW THEREFORE, the parties hereto severally and collectively agree, and by the
execution hereof are bound, to the mutual obligations herein contained and to the performance
and accomplishment of the tasks hereinafter described:
I.TERM
1.1 This Agreement commences on the date of execution by the CITY and terminates on the
on the Maturity Date(as defined in the Note), unless otherwise specifically provided by the terms
of this Agreement, with terms of repayment set forth in the Note.
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1.2 The completion date for construction work for the Project, which for purposes of this
Agreement and the other Loan Documents shall be evidenced by the issuance of certificates of
occupancy(or the jurisdictional equivalent) for the buildings located on the Property, shall be no
later than December 31, 2022.
1.3 The recital paragraphs and statements above preceding this Term section are hereby
incorporated into and made a part of this Agreement and the parties acknowledge that all such
paragraphs and statements are true.
II. SCOPE OF WORK
2.1 The Project will consist of the construction of 112 one (1) bedroom senior community
housing unit development, of which 64 units will have Project Based Rental Assistance and 48
tenants of the current project, which is being replaced by the Project, will receive Tenant
Protection Vouchers from HUD. HOME funds provided under this Agreement will be utilized for
the construction of four (4) HOME-assisted floating units. Designation of the HOME-assisted
units shall be as follows: three (1) one-bedroom units. HOME subsidy does not exceed the limits
provided at §234 of the National Housing Act.
III. DEFINITIONS
3.1 For purposes of this Agreement, in addition to the definitions and references set forth
throughout this AGREEMENT, the following terms shall have the meanings indicated:
Affordable: In the context of the 111 "Affordable" units, "Affordable" means the unit is
set aside for households with incomes of 60% or less of the applicable area median
income.
Business Day: Every day of the week, except all Saturdays, Sundays and those scheduled
holidays officially adopted and approved by the CITY's City Council for its employees.
Construction Loan — The loan from the Senior Lender to OWNER in the amount of
$[ 11,300,000.00 ], and which will be governed and secured by the
Construction Loan Documents.
Construction Loan Documents: The documents governing, securing and/or evidencing
the Construction Loan, including the Promissory Note dated on or about even date
herewith in the original principal sum of $[ 11,300,000.00 ] executed by
OWNER for the benefit of Senior Lender. OWNER agrees to provide a copy of the
Construction Loan Documents upon request from the CITY.
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Environmental Law: Any federal, state, or local law, statute, ordinance, or regulation,
pertaining to health, industrial hygiene, or the environmental conditions on, under, or
about the Property, including without limitation, the following, as now or hereafter
amended, Comprehensive Environmental Response, Compensation, and Liability Act of
1980 ("CERCLA"),42 U.S.C.A. §9601 et seq.; Resource, Conservation and Recovery Act, 24
U.S.C.A. §6901 et seq. as amended by the Superfund Amendments and Reauthorization
Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613; the Toxic Substances Control Act, 15
U.S.C.A. §2601 et seq.; Emergency Planning and Community Right to Know Act of 1986,
42 U.S.C.A. §1101 et seq.; Clean Water Act ("CWA"), 33 U.S.C.A. §1251 et seq., Clean Air
Act, 42 U.S.C.A. §7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C.A. §1251 et
seq.; and any corresponding state laws or ordinances including but not limited to the
Texas Water Code §26.001 et seq.; Texas Health & Safety Code §361.001 et seq.; Texas
Solid Waste Disposal Act, Tex. Rev. Civ. Stat. Ann. Art. 4477-7; and regulations, rules,
guidelines, or standards promulgated pursuant to such laws, statute and regulations, as
such statutes, regulations, rules, guidelines, and standards are amended from time to
time.
Environmental Report: Phase I Environmental Site Assessment (ESA) Report dated
November 26,2019, prepared by this Phase Engineering, Inc., PEI Project No: 201908082.
Governmental Authority: Any and all courts, boards, agencies, commissions, offices or
authorities of any nature whatsoever for any governmental unit (federal, state, county,
district, municipal, city or otherwise) whether now or hereafter in existence, having
jurisdiction over the applicable matter.
Hazardous Materials: Any flammables, explosives, radioactive materials, asbestos,
petroleum products or other hazardous waste, including, without limitation, substances
defined as "hazardous substances," "hazardous materials" or "toxic substances" in any
Environmental Law; excluding however, standard prepackaged household items and
supplies and materials necessary for the construction and operation of the Property.
Improvements: The improvements now or hereafter located on the Property and being
generally described as the construction of an 112 one (1) bedroom senior community
housing unit development located in Corpus Christi, Nueces County,Texas.
Leases: Any and all leases, subleases, licenses, concessions or other agreements (written
or oral, now or hereafter in effect)which grant a possessory interest in and to, or the right
to use, all or any part of the Property, together with all security and other deposits made
in connection therewith, and all other agreements, such as engineer's contracts, utility
contracts, maintenance agreements and service contracts, which in any way relate to the
design, use, occupancy, operation, maintenance, enjoyment or ownership of the
Property, save and except any and all leases, subleases or other agreements pursuant to
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which OWNER is granted a possessory interest in the Property and easement agreements
filed of record prior to the Deed of Trust.
Legal Requirements: All laws, ordinances, statutes, codes, rules, regulations, orders and
decrees of the United States, the state, the county, the city, or any other political
subdivision in which the Property is located, and any other political subdivision, agency
or instrumentality exercising jurisdiction over either of the BORROWER PARTIES or the
Property, including, without limitation, the following (to the extent applicable to the
Property): the Civil Rights Act of 1964 (42 U.S.C. 2000(d); Equal Opportunity in Housing
(Executive Order 11063, as amended by Executive Order 12259); Executive Order 11246;
Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.); Equal Credit Opportunity Act (15
U.S.C. 1691 et seq.); Fair Credit Reporting Act (15 U.S.C. 1681 et seq.); Fair Housing Act
(42 U.S.C. 3601 et seq.); the Americans with Disabilities Act of 1990 (P.L. 101-336; Section
504 of the Rehabilitation Act of 1973 (29 U.S.C. 794); Architectural Barriers Act of 1968
(42 U.S.C. 4151 et seq.); Federal Drug Free Workplace Act of 1988 and the regulations
promulgated thereunder including, without limitation, 54 CFR Part 4956, Section 3 of the
Housing and Urban Development Act of 1968; Executive Orders 11625, 12432 and 12138,
as amended; the Copeland "Anti-Kickback" Act (18 U.S.C. § 874 et seq.); Sections 103 and
107 of the Work Hours and Safety Standards Act. (40 U.S.C. § 327 et seq.); the Uniform
Relocation Assistance and Real Property Acquisition Policies Act(42 U.S.C. §4201 etseq.);
the Housing and Community Development Act of 1974;the National Environmental Policy
Act (42 U.S.C. § 4321 et seq.); ("NEPA"); the Lead-Based Paint Poisoning Prevention Act
(42 U.S.C. § 4321 et seq.); the State of Texas Senate Bill 1356; Title 8, and Chapter 92 of
the Texas Property Code; Solid Waste Disposal Act TEX. HEALTH &SAFETY CODE Ann. Ch.
361; Comprehensive Municipal Solid Waste Management, Resource Recovery, and
Conservation Act;TEX. HEALTH &SAFETY CODE Ann. Ch. 363; County Solid Waste Control
Act; TEX. HEALTH & SAFETY CODE Ann. Ch. 364; Texas Clean Air Act, TEX. HEALTH AND
SAFETY CODE Ann. Ch.; and Hazardous Communication Act, TEXAS HEALTH AND SAFETY
CODE Ann. Ch. 502; and such Governmental Requirements as may be amended from time
to time or superseded and all of their implementing regulations, as may be amended.
Loan Documents: (i) this AGREEMENT, (ii) the "HOME Promissory Note" (the "Note"), (iii)
the "Deed of Trust" (the "Deed of Trust"), (iv) the "Assignment of Leases and Rentals"
(the "Assignment"), (v) the Restrictive Covenant of Affordability, (vi) the Certification
Regarding Lobbying for Agreements, Grants, Loans and Cooperative Agreements of even
date herewith executed by Borrower (the "Certification"), (vii) the Collateral Assignment
of Note, Liens and Loan Documents (the "Collateral Assignment"), and (viii) any and all
other documents now or hereafter executed by the BORROWER PARTIES to evidence or
secure the payment of the Indebtedness or the performance of the Obligations.
Obligations: Any and all of the covenants, conditions, warranties, representations and
other obligations (other than to repay the Indebtedness) made or undertaken by the
BORROWER PARTIES for the benefit of the CITY as set forth in any of the Loan Documents.
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Plans: Any and all contracts and agreements, written or oral, between Architect and
OWNER , together with the final plans, specifications, shop drawings and other technical
descriptions prepared for the construction of the Improvements, and all amendments and
modifications thereof.
Property: Defined hereinabove.
("TDHCA").
Senior Lending Terms: Senior Lenders: Sterling Bank and Texas Department of Housing and
Community Affairs Senior Lender has made a loan to Borrower in the original principal
amount of$11,300,000 ("Senior Loan") upon the terms and conditions of a Construction
Loan Agreement dated as of the date hereof("Construction Loan Agreement") among
Senior Lender and OWNER in connection with the Mortgaged Property. The Senior Loan
is secured by a Deed of Trust, Collateral Assignment of Rents, Security Agreement and
Financing Statement dated as of the date hereof("Senior Mortgage") encumbering the
Land, the Improvements and related personal and other property described and defined in
the Senior Mortgage as the "Mortgaged Property."
C. TDHCA has made or is making a loan to OWNER in the original principal amount of
$10,000,000.00 ("Bond Loan"). The Bond Loan is or will be secured by a Subordinate
Multifamily Deed of Trust, Security Agreement and Fixture Filing dated as of November
1,2020("Bond Mortgage")encumbering all or a portion of the Mortgaged Property. The
Bond Mortgage and TDHCA's rights,title and interest in the Bond Loan(except for certain
Reserved Rights, as defined in the hereinafter defined Bond Indenture) have been or are
being assigned at closing on the Bond Loan to the Bond Trustee pursuant to that certain
(i) Trust Indenture dated as of November 1, 2020 (the "Bond Indenture") between
TDHCA and Bond Trustee; and (ii) Assignment of Security Instrument dated as of
November 1„2020 executed by TDHCA in favor of Bond Trustee.
D. TDHCA has also made or is making a loan to OWNER in the original principal amount of
$4,000,000.00 ("TCAP Loan" and together with the Bond Loan, the "Subordinate
Loan"). The TCAP Loan is or will be secured by a Deed of Trust, Collateral Assignment
of Rents, Security Agreement and Financing Statement dated as of November 1, 2020
("TCAP Mortgage"and together with the Bond Mortgage,the"Subordinate Mortgage")
encumbering all or a portion of the Mortgaged Property.
E. The Senior Mortgage will be recorded in the land records of Nueces County, Texas
("Recording Office"). The Subordinate Mortgage will be recorded in the Recording
Office following the recording of the Senior Mortgage.
Tax Credit means the low income housing tax credit pursuant to Section 42 of the Code
which is anticipated to be available to the Partnership.
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TCAP Loan: Loan in the amount of$4,000,000.00 from TDHCA with a term of 15 years,
beginning on the first day of the 24 month after the Loan Closing Date
TDHCA: Texas Department of Housing and Community Affairs, together with its
successors and assigns.
Subordination Agreements: The City Deed of Trust and Collateral Assignment will be
subordinate to all of the Senior Loans.
IV. REPRESENTATIVES
4.1 Unless written notification by OWNER to the contrary is received and approved by the
CITY, the President of WAYFORWARD shall be the party designated representative responsible
for the management of all contractual matters pertaining to this AGREEMENT.
4.2 The CITY, acting through staff designated by the City Manager or the City Manager's
authorized designee, is responsible for the administration of this AGREEMENT.
4.3 Communications between the CITY and the BORROWER PARTIES shall be directed to the
designated representatives of each as set forth in paragraphs numbered 4.1 and 4.2 hereinabove.
V. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS
5.1 The BORROWER understands that funds provided to it pursuant to this AGREEMENT are
funds which have been made available to the CITY by the federal government under the HOME
Investment Partnerships Program (Final Rule) and in accordance with the CITY's HUD-approved
Grant Application and with other specific assurances made and executed by CITY. The
BORROWER , therefore, assures and certifies that they will comply, in all material respects, with
the requirements of the HOME Investment Partnerships Program (Final Rule) and with all
regulations promulgated thereunder,codified at Title 24 of the Code of Federal Regulations. The
BORROWER understands , however, that the HOME Investment Partnerships Program (Final
Rule) in no way is meant to constitute a complete compilation of all duties imposed upon the
BORROWER by law or administrative ruling, or to narrow the standards which the BORROWER
PARTIES must follow. Accordingly, The BORROWER understand that if the regulations and
issuances promulgated pursuant to the HOME Investment Partnerships Program (Final Rule) are
amended or revised, it shall comply with them, if required, or otherwise promptly notify the CITY
pursuant to the provisions of this AGREEMENT.
5.2 The BORROWER understands that summaries of certain compliance requirements
mandated by applicable laws or regulations are available from the CITY, and that the BORROWER
must at all times remain in compliance therewith; the BORROWER further understands that said
summaries are intended only as such and in no way are meant to constitute a complete
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compilation of all duties imposed upon the BORROWER by law or administrative ruling, or to
narrow the standards which the BORROWER understand must follow.
5.3 OWNER will inform all contractors and subcontractors receiving funds in connection with
this Project that they shall comply with any and all applicable federal and state laws, rules and
regulations and that provisions mandating compliance with all applicable federal and state laws,
rules, and regulations will be included as part of every contract awarded in connection with this
Project.
5.4 The BORROWER shall observe and comply with all Legal Requirements in all material
respects.
VI. BORROWER'S and/or OWNER'S WARRANTIES AND REPRESENTATIONS
6.1 Responsibility. The OWNER shall be solely responsible for all aspects of their business
and conduct in connection with the construction of the Property, including without limitation:
(A) The quality and suitability of the Plans;
(B) Supervision of the construction of the Improvements;
(C) The qualifications, financial condition and performance of all architects,
engineers, contractors, subcontractors, material suppliers, consultants, and property
managers;
(D) Conformance of construction of the Improvements to all Legal Requirements and
to the requirements of this Agreement; and
(E) The quality and suitability of all materials and workmanship.
(F) The performance of the Project, of all services and activities set forth in this
AGREEMENT.
6.2 Performance. The BORROWER and OWNER hereby accept responsibility for the
performance, in a satisfactory and efficient manner as determined by the CITY, in its reasonable
determination and/or discretion, of all services and activities set forth in this AGREEMENT.
6.3 Legal Authority. All action on the BORROWER'S part requisite for the due authorization,
creation, issuance, execution and delivery of this AGREEMENT and the other Loan Documents
has been duly and effectively taken. More specifically, the BORROWER possesses the legal
authority, pursuant to any proper, appropriate and official motion, resolution or action passed
or taken, to enter into this AGREEMENT and the Loan Documents and to perform the
responsibilities herein required,and each of the Loan Documents entered into by the BORROWER
understands constitutes a legal and binding obligation of, and is valid and enforceable against,
the BORROWER and the Property (as the case may be) in accordance with the terms thereof.
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6.4 President Authority. The BORROWER represent, warrant, assure and guaranty that the
individual, herein the President of WAYFORWARD executing this AGREEMENT has full legal
authority to execute this AGREEMENT on behalf of each of the BORROWER parties, as applicable,
and to bind the BORROWER parties, as applicable, to all terms, performances and provisions
herein contained.
6.5 Documentation of Authority. The BORROWER has delivered to the CITY duly executed
documentation creating and lawfully establishing each of the BORROWER including evidence of
any required filing with the Secretary of State of the State of Texas.
6.6 Dispute as to Legal Authority. In the event that a dispute arises as to the legal authority
to enter into this AGREEMENT of either the BORROWER or the person signing on behalf of the
BORROWER , and same is not dismissed within ninety (90) days, the CITY shall have the right, at
its option,to either temporarily suspend or permanently terminate this AGREEMENT. Should the
CITY suspend or permanently terminate this AGREEMENT pursuant to this paragraph, however,
OWNER shall be liable to the CITY for any money it has received from the CITY (pursuant to the
Loan to BORROWER) for performance of any of the provisions hereof.
6.7 Claims. Except as may be otherwise set forth on any exhibit attached hereto, there are
no claims, demands, suits, proceedings, causes of action or other actions (hereinafter collectively
referred to as "claims") of a material nature pending or, to the knowledge of the BORROWER,
threatened against or affecting the BORROWER or the Property, or involving the validity or
enforceability of the Deed of Trust, the Collateral Assignment, or the priority of the liens and
security interests created therein; and no event has occurred (including specifically the
BORROWER' execution of the respective Loan Documents, and BORROWER's consummation of
the Loan) which will violate, be in conflict with, result in the breach of or constitute (with due
notice or lapse of time, or both) a default under any Legal Requirement or result in the creation
or imposition of any lien,charge or encumbrance of any nature whatsoever on the Property other
than the liens and security interests created by or expressly permitted under the Loan
Documents.
6.8 Notice of Claims. In the event that any material claims are made or brought against the
BORROWER or the Property, OWNER shall give written notice thereof to the CITY within five (5)
business days after itself being notified. OWN ER's notice to the CITY shall state the date OWNER
received written notice of the claim; the names and addresses of those instituting or threatening
to institute the claim, the basis of the claim; and the name(s) of any others against whom the
claim is being made or threatened. Written notice pursuant to this Article shall be delivered in
accordance with the terms of Section 38.2 of this AGREEMENT.
6.9 Compliance with Legal Requirements.
(A) OWNER has (or will have when required) (i) received all requisite building permits
and approvals required for the commencement of construction of the Project, (ii) filed
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and/or recorded all requisite plats and other instruments, and (iii) complied or ensured
the compliance with all Legal Requirements required to be met prior to commencement
of the construction work done in connection with the Project.
(B) The HOME-assisted units to be constructed in accordance with this AGREEMENT
must, at a minimum, meet or exceed the requirements of the Texas Property Code
relating to security devices and other applicable requirements for residential tenancies
and will adhere to the City of Corpus Christi Building Code, and all other required property
standards in accordance with 24 C.F.R. § 92.251.
6.10 Notice to Proceed. Within sixty(60)days following the date of the closing of the purchase
of the Property, OWNER must receive a "Notice to Proceed" from Senior Lender and the CITY
prior to the start of any construction activities and/or prior to disbursements of funding for
eligible costs, other than amounts funded at the closing of the purchase of the Property.
6.11 Streets, Easement, Utilities and Services. All streets, easements, utilities and related
services necessary for the construction of the Improvements and the operation thereof for their
intended purpose are (or will be when required) available to the boundaries of the Land,
including, without limitation, potable water, storm and sanitary sewer, gas, electric, telephone
and garbage removal.
VII. ENVIRONMENTAL LAW REQUIREMENTS
7.1 Based upon the Environmental Report, OWNER warrants that, to the best of OWNER's
knowledge, the Property has not been the site of any activity that would violate any past or
present Legal Requirements, including, without limitation, any Environmental Law, except as
disclosed in the Environmental Report. Specifically, without limitation, except as disclosed in the
Environmental Report, (i) no solid waste, as that term is defined in the Texas Solid Waste Disposal
Act, and no petroleum or petroleum products have been handled on the Property such that they
may have leaked or spilled on to the Property or contaminated the Property, (ii) there is no on-
site contamination resulting from activities on the Property or adjacent tracts, (iii)there is no off-
site contamination resulting from activities on the Property, (iv) the Property contains no
Hazardous Materials, and (v) there are no underground storage tanks located in, on or under the
Property.
VIII. MAINTENANCE OF EFFORT
8.1 OWNER agrees that the funds and resources provided to it under the terms of this
AGREEMENT shall in no way be substituted for funds and resources provided from other sources,
nor shall such funds and resources in any way serve to reduce the funds, resources, services, or
other benefits which would have been available to, or provided through, OWNER had this
AGREEMENT not been executed.
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IX. PERFORMANCE BY BORROWER
9.1 The BORROWER, in accordance and compliance with the terms, provisions and
requirements of this AGREEMENT, shall manage, perform and provide all of the activities and
services required of the applicable BORROWER PARTY under this AGREEMENT in connection with
the Project to the CITY's satisfaction, in its reasonable determination and/or discretion. The
funds available for utilization hereunder shall be expended only in accordance with the terms of
this AGREEMENT for construction of four(4) HOME-assisted units. OWNER shall submit a Project
budget and construction schedule ("Construction Schedule") within ten (10) days of start of
construction activities, to replace the Preliminary Budget and Construction Schedule at Exhibit
A.
X. DRAW REQUESTS
10.1 Provided no Event of Default (as defined in the Deed of Trust) has occurred and remains
uncured, the CITY will deliver funding reimbursement to BORROWER, which will in turn deliver
such funds to OWNER, to be used by OWNER to construct the Project, up to Three Hundred Fifty
Thousand and 00/100 Dollars ($350,000), upon request of the BORROWER as work in place is
completed and construction work has been verified by the CITY. The CITY shall retain 10%of the
funds, until construction of the Project is complete, which estimated to be at the same time as
Draw 3 below. Upon completion of Project construction, the CITY will deliver the remainder to
BORROWER, which will in turn deliver such funds to OWNER, together with the remaining
undisbursed proceeds of the Loan.
10.2 OWNER will submit draws for reimbursement of eligible expenses, approval which the
CITY hereby approves; provided, however, all draw requests must be submitted within the term of
this Agreement:
Draw 1 - 33.4%
Draw 2 - 33.3%
Draw 3 - 33.3%
XI. FURTHER REPRESENTATIONS, WARRANTIES AND COVENANTS
11.1 Except as otherwise provided in the Permitted Exceptions (as defined in the Deed of
Trust), prior to and during the period of time that payment may be made hereunder and so long
as any payments remain unliquidated, OWNER covenants that it shall not, without the prior
written consent of the CITY's Manager or the City Manager's authorized designee, such consent
not to be unreasonably delayed, withheld or conditioned:
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I
(A) Further mortgage, pledge, or otherwise encumber or cause to be encumbered any
of the assets of OWNER owned or hereafter acquired by it, except for pursuant to the
Senior Loan Documents and the Loan Documents, as well as the Permanent Financing
and any refinancing thereof, and the CITY expressly permits such refinancings;
(B) Sell, convey, or lease all or any substantial part of OWNER's assets other than for
residential use; or
11.2 Each of the foregoing representations, warranties and covenants shall be continuing and
deemed repeated each time BORROWER submits a new request for disbursement of proceeds of
the Loan in accordance with the terms, provisions and requirements of this AGREEMENT.
XII. EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION
12.1 The BORROWER shall comply with all applicable local, state and federal equal
employment opportunity and affirmative action rules, regulations and laws.
XIII. NONDISCRIMINATION
13.1 The BORROWER covenants that it, or its agents, employees or anyone under its control,
will not discriminate against any individual or group on account of race, color, sex, age, religion,
national origin, handicap or familial status, in employment practices or in the use of or admission
to the Property, which said discrimination The BORROWER acknowledge is prohibited.
XIV. CONFLICT OF INTEREST
14.1 The BORROWER covenant that neither it nor any member of its governing body or of its
staff presently has any interest, direct or indirect, which would conflict in any manner or degree
with the performance of services required to be performed under this AGREEMENT. The
BORROWER further covenant that in the performance of this AGREEMENT, no persons having
such interest shall be employed or appointed as a member of its governing body or of its staff.
14.2 The BORROWER further covenant that no member of its governing body or of its staff
shall possess any interest in, or use their position for, a purpose that is or gives the appearance
of being motivated by desire for private gain for themselves or others, particularly those with
which they have family, business, or other ties.
14.3 No member of the CITY's governing body or of its staff who exercises any function or
responsibility in the review or approval of the undertaking or carrying out of this AGREEMENT
shall:
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(A) Participate in any decision relating to this AGREEMENT, which may affect his or
her personal interest or the interest of any corporation, partnership, or association in
which he or she has a direct or indirect interest; or
(B) Have any direct or indirect interest in this AGREEMENT or the proceeds thereof.
XV. CERTIFICATION REGARDING DEBARMENT, SUSPENSION,
PROPOSED DEBARMENT, AND OTHER RESPONSIBILITY MATTERS
15.1 The BORROWER shall comply with non-procurement, debarment and suspension
standards set forth in 2 CFR Part 180, Subpart C, as required by 2 CFR Part 2424, and shall not
employ, award a contract to, or fund any person that has been debarred, suspended, proposed
for debarment or placed on ineligibility status by HUD or the Department.
15.2 The BORROWER certify, and the CITY relies thereon in execution of this AGREEMENT,that
neither of the BORROWER, nor any of their Principals, are presently debarred, suspended,
proposed for debarment, or declared ineligible, or voluntarily excluded for the award, proposed
for debarment, or declared ineligible, or voluntarily excluded for the award of contracts by any
Federal governmental agency or department.
15.3 "Principals," for the purposes of this certification, means officers, directors, owners,
partners, and persons having primary management or supervisory responsibilities within a
business entity (e.g., general manager, plant manager, head of subsidiary, division, or business
segment, and similar positions).
15.4 OWNER shall provide prompt written notice to the CITY, in accordance with the
AGREEMENT if, at any time during the term of this AGREEMENT, including any renewals hereof,
OWNER learns that the BORROWER' certification was erroneous when made or has become
erroneous by reason of changed circumstances.
15.5 The BORROWER certification in this Section XV is a material representation of fact upon
which the CITY has relied in entering into this AGREEMENT. Should the CITY determine, at any
time during this AGREEMENT, including any renewals hereof, that this certification is false, or
should it become false due to changed circumstances, the CITY may terminate this AGREEMENT
in accordance with the Termination provision herein.
XVI. SUB-CONTRACTING
All of the work is being done on a MASTER SUBCONTRACT
16.1 Any other clause of this AGREEMENT to the contrary notwithstanding, none of the work
or services covered by this AGREEMENT shall be sub-contracted without the prior written
approval of the CITY. Any work or services approved for sub-contracting hereunder, however,
shall be sub-contracted only by written contract or agreement and, unless specific waiver is
FY19 HOME Wayforward Page 13 of 55
granted in writing by the CITY, shall be subject by its terms to each and every provision of this
AGREEMENT. Compliance by sub-contractors with this AGREEMENT shall be the responsibility of
OWNER. Notwithstanding the foregoing, the CITY acknowledges that OWNER will enter into (a)
a construction contract with a general contractor, which will in turn enter into a subcontract with
a subcontractor, (b) a development agreement with a developer, (c) a supportive services
agreement with a supportive services provider, (d) a property management agreement with a
property manager, and (e) a compliance management agreement with a compliance agent, for
each such party to provide services with respect to the construction and operation of the Project.
Such sub-contractors are expressly permitted,and it is acknowledged that the general contractor,
the developer, the supportive services provider, the property manager, and the compliance
agent will be permitted to sub-contract certain services under their respective contracts.
16.2 OWNER agrees that no sub-contract approved pursuant to this AGREEMENT shall provide
for payment on a "cost plus a percentage of cost" basis.
16.3 Despite the CITY's approval of a sub-contract, the CITY shall in no event be obligated to
any third party, including any sub-contractor of OWNER,for performance of work or services, nor
shall the CITY funds ever be used for payment of work or services performed prior to the date of
AGREEMENT execution or extending beyond the date of AGREEMENT expiration.
XVII. RECORDS AND REPORTS, and MONITORING AND INSPECTION
17.1 Records and Reports.
(A) Any and all information, reports, papers and other data (including, without
limitation, any and all balance sheets, statements of income or loss, reconciliation of
surplus and financial data of any other kind) heretofore furnished, or to be furnished, to
the CITY by or on behalf of the BORROWER are,or when delivered will be,true and correct
in all material respects; all financial data has been, or when delivered will have been,
prepared in accordance with generally accepted accounting principles consistently
applied and fully and accurately present, or will present, the financial condition of the
subjects thereof as of the dates thereof; and,with respect to the financial data heretofore
furnished, no materially adverse change has occurred in the financial condition reflected
therein since the dates thereof.
(B) Maintenance of records shall be in compliance with all terms, provisions and
requirements of this Agreement and with all applicable federal and state regulations
establishing standards for financial management; and the record system shall contain
sufficient documentation to provide in detail full support of each expenditure. The
BORROWER agree to retain, for the period of time and under the conditions specified in
writing by the CITY, all books, records, documents, reports, and written accounting
policies and procedures pertaining to the Project and expenditures of funds under this
Agreement, and as in accordance with 24 CFR 92.508(c)(1)(4).
FY19 HOME Wayforward Page 14 of 55
(C) At any reasonable time and as often as the CITY may deem necessary in its
reasonable determination, The BORROWER shall make all of its records available to the
CITY, HUD,or any of their agents or authorized representatives, and shall permit the CITY,
HUD, or any of their agents or authorized representatives to audit, examine, and make
excerpts and/or copies of same. The BORROWER' records shall include, but shall not be
limited to, the following: books, records, accounting data and other documents of The
BORROWER that relate in any way to the Property, including without limiting the
generality of the foregoing, all permits, licenses, consents and approvals of all
Governmental Authorities having jurisdiction over Borrower or the Property. The
BORROWER shall furnish the CITY with convenient facilities for the foregoing purpose.
(D) At a minimum, quarterly performance records and reports shall be submitted to
the CITY by OWNER on or before the fifteenth (15th) calendar day of January, April,July
and October with each report reflecting the previous quarter. During construction of the
Project, the quarterly report shall contain details related to construction progress.
Following completion of the Project, such report shall contain details related to the
financial performance (including leasing activity and an income statement regarding the
Project). The form of such report must meet the approval of the CITY, and OWNER agrees
to make any and all changes to such form as may be recommended by the CITY, as well
as provide additional information in connection with such reports as may be requested
by the CITY,both in the CITY's reasonable determination. The CITY agrees to accept copies
of any monthly reports that may be submitted to Senior Lender or OWNER's investor
limited partner in satisfaction of this requirement.
17.2 Monitoring and Inspection.
(A) The CITY, through its officers, agents or employees, shall, with reasonable prior
notice delivered to OWNER, have the right to enter upon the Property and perform on-
site monitoring and inspection to determine that OWNER's performance is in conformity
with the Plans and all the requirements of the AGREEMENT during regular business hours.
(B) With reasonable notice to OWNER, and in accordance with the leases affecting
the Property, OWNER agrees that the CITY and HUD may, at the CITY's and HUD's sole
discretion, carry out monitoring and evaluation activities so as to ensure compliance by
BORROWER.
(C) The BORROWER agree to cooperate with the CITY in the development,
implementation and maintenance of record-keeping systems and to provide the CITY with
any data determined by the CITY in reasonable determination and/or discretion, to be
necessary for its effective fulfillment of its monitoring and evaluation responsibilities.
(D) The BORROWER agree that it will cooperate with the CITY and HUD in such a way
so as not to obstruct or delay the CITY or HUD in its monitoring of the BORROWER'
FY19 HOME Wayforward Page 15 of 55
performance and that the BORROWER will designate one of its staff to coordinate the
monitoring process as requested by the CITY and/or HUD staff.
(E) After each official monitoring visit, the CITY shall provide OWNER with a written
report of monitoring findings.
17.3 Copies of any fiscal, management, or audit reports related to the Property delivered to
OWNER by any of OWNER's funding or regulatory bodies that contain materially adverse findings
shall be submitted by OWNER to the CITY's Director of Grant Monitoring or designate within five
(5) business days of receipt thereof by OWNER.
17.4 It is expressly understood and agreed that the CITY shall have no duty to supervise or to
inspect the construction activities or any books and records, and that any such inspection shall
be for the sole purpose of determining whether or not the obligations of OWNER are being
properly discharged and to preserving the CITY's rights hereunder. If the CITY or its agent acting
on its behalf inspects the construction activities or any books and records,the CITY shall have no
liability or obligation to OWNER or any third party arising out of such inspection. the CITY's failure
to inspect the construction activities or any part thereof or any books and records shall not
constitute a waiver of any of the CITY's rights hereunder. Neither OWNER nor any third party
shall be entitled to rely upon any such inspection or review.
XVIII. AUDITS, BONDING AND INSURANCE
18.1 Audits.
(A) Unless otherwise directed by the CITY, the BORROWER shall arrange for the
performance of an annual financial and compliance audit of funds received and
performances rendered under this AGREEMENT, subject of the following conditions and
limitations:
(i) the BORROWER shall have an audit made in accordance with 24 CFR 92.506 or
OMB Circular A-133 for any of its fiscal years included within the AGREEMENT period
specified in Section II of this AGREEMENT in which OWNER receives more than
$500,000 in federal financial assistance provided by a federal agency in the form of
grants, agreements, loans, loan guarantees, property, cooperative agreements,
interest subsidies, insurance or direct appropriations, but federal financial assistance
does not include direct federal cash assistance to individuals or low-income housing
credits. The term includes awards of federal financial assistance received directly
from federal agencies, or indirectly through other units of state and local government.
(ii) Intentionally omitted.
FY19 HOME Wayforward Page 16 of 55
(iii) Notwithstanding provisions of this AGREEMENT to the contrary, the BORROWER
may utilize funds budgeted under this AGREEMENT to pay for that portion of the cost
of such audit services properly allocable to the activities funded by the CITY under this
AGREEMENT; provided, however, that the CITY shall not make payment for the cost
of such audit services until the CITY has received such audit report from the
BORROWER.
(iv) Unless otherwise specifically authorized by the CITY in writing, the BORROWER
shall submit the report of such audit to the CITY within thirty (30) days after the
applicable BORROWER PARTY'S receipt of the completed audit, but no later than one
(1) year after the end of each federal fiscal period included within the period of this
AGREEMENT. Audits performed under subsection A of this Section are subject to
review and resolution by the CITY or its authorized representative.
(v) As part of its audit, OWNER shall verify expenditures according to the Budget and
Construction Schedule attached and incorporated as Exhibit A.
(B) Notwithstanding subsection A of this Section 18, the CITY reserves the right to
conduct an annual financial and compliance audit of funds received and performances
rendered under this AGREEMENT. The BORROWER agree to permit the CITY or its
authorized agent or representative to audit The BORROWER' records and to make copies
of any documents, materials, or information necessary to facilitate such audit. Should an
audit not be required by sub-section A of this Section 18.1, The BORROWER shall provide
an annual audit to the CITY of funds received in performance of this AGREEMENT.
(C) OWNER understands and agrees that it shall be liable to the CITY for any costs
disallowed pursuant to financial and compliance audit(s) of funds received under this
AGREEMENT. OWNER further understands and agrees that reimbursement to the CITY
of such disallowed costs shall be paid by OWNER from funds which were not provided or
otherwise made available to the BORROWER under this AGREEMENT.
(D) The BORROWER shall take all necessary actions to facilitate the performance of
such audit or audits conducted pursuant to this Section 18 as the CITY may require of the
BORROWER.
18.2 Bonding and Insurance.
(A) OWNER shall observe sound business practices with respect to providing such
bonding and insurance as would provide adequate coverage for activities under this
AGREEMENT; provided, however, that the foregoing provision of this paragraph shall in
no way be construed or deemed to limit or diminish the insurance requirements set forth
in the other Loan Documents with which OWNER must comply and maintain.
FY19 HOME Wayforward Page 17 of 55
(i) Liability Insurance. At least ten (10) days prior to start of construction, OWNER
shall provide a Certificate of Insurance evidencing the required insurance coverage
set forth in the attached and incorporated Exhibit E.
(ii) Fire and Extended Coverage. OWNER shall have in force throughout the term of
this Agreement and throughout the affordability period fire and extended coverage
insurance in an amount sufficient to cover the replacement cost (HOME funds
invested) in the Project. The insurance policy shall name the CITY as a loss payee using
a standard loss payee clause. A certificate to that effect must be provided to the CITY
prior to the commencement of construction of the Project.
(iii) Notice to the CITY. OWNER shall require its insurance policies to provide that the
Director of Grant Monitoring of the CITY shall be given thirty(30)days advance written
notice by the insurer prior to cancellation, nonrenewal, or material change of the
insurance policies required by this Section. The insurer utilized by OWNER is subject
to approval of the CITY. Failure to maintain such insurance will be cause for the CITY
to take control of the Project HOME funds and will cancel any claim that the
BORROWER may have to draw HOME funds under this Agreement unless and until
such failure is cured.
(iv) Right to Re-evaluate and Adjust Limits. The CITY, through its Director of Grant
Monitoring or his designee, retains the right to, in the Director's reasonable
discretion, re-evaluate the insurance requirements and adjust the coverage limits, up
or down, upon thirty (30) days written notice to OWNER. Insurance coverage limits
may not be adjusted more frequently than once per year.
(B) Upon signing this AGREEMENT, and annually thereafter for the duration of the
Note, in addition to any other requirements and obligations of the BORROWER in the
other Loan Documents, OWNER shall provide the CITY: (1) proof of timely(i.e. before past
due)payment in full of all taxes assessed against the Property,and (2)evidence of OWNER
current payment status on all loans in connection with the Property and the Project.
(C) Premiums chargeable for any and all insurance referred to in this Article will be
paid by OWNER, at its own expense, unless otherwise authorized in writing by the CITY,
and such insurance shall be kept in force during and throughout the term of this
AGREEMENT.
(D) OWNER must provide to the CITY certificates evidencing renewals or
replacements of the policies of said insurance prior to the expiration or cancellation of
any such policies. Additionally, OWNER shall provide the CITY evidence of the payment
of all premiums therefor.
FY19 HOME Wayforward Page 18 of 55
(E) Actual losses not covered by insurance as required by this Article shall not be
allowable costs under this AGREEMENT, and shall therefore remain the sole responsibility
of OWNER.
XIX. INDEMNIFICATION
19.1 OWNER covenants and agrees to FULLY INDEMNIFY and HOLD HARMLESS, the CITY and
the elected officials, employees, officers, directors, volunteers, agents and representatives of
the CITY, individually or collectively, from and against any and all costs, claims, liens, damages,
losses, expenses, fees, fines, penalties, proceedings, actions, demands, causes of action,
liability and suits of any kind and nature, including but not limited to, personal or bodily injury,
death and property damage, made upon the CITY, directly or indirectly arising out of, resulting
from or related to the OWNER activities under this AGREEMENT, including any acts or
omissions of the OWNER, any agent, officer, director, representative, employee, consultant,
contractor or subcontractor of the OWNER, and their respective officers, agents, employees,
directors and representatives while in the exercise or performance of the rights or duties under
this AGREEMENT, all without, however, waiving any governmental immunity available to the
CITY under Texas law and without waiving any defenses of the parties under Texas law. IT IS
FURTHER COVENANTED AND AGREED THAT SUCH INDEMNITY SHALL APPLY EVEN WHERE SUCH
COSTS, CLAIMS, LIENS, DAMAGES, LOSSES, EXPENSES, FEES, FINES, PENALTIES, ACTIONS,
DEMANDS, CAUSES OF ACTION, LIABILITY AND/OR SUITS ARISE IN ANY PART FROM THE
NEGLIGENCE OF THE CITY, THE ELECTED OFFICIALS, EMPLOYEES, OFFICERS, DIRECTORS,
VOLUNTEERS, AGENTS, AND REPRESENTATIVES OF THE CITY, UNDER THIS AGREEMENT. The
provisions of this INDEMNIFICATION are solely for the benefit of the parties hereto and not
intended to create or grant any rights, contractual or otherwise, to any other person or entity
not mentioned herein. OWNER shall promptly advise the CITY in writing of any claim or
demand against the CITY or the OWNER known to OWNER related to or arising out of the
OWNER activities under this AGREEMENT and shall see to the investigation and defense of such
claim or demand at OWNER's cost. The CITY shall have the right, at its option and at its own
expense,to participate in such defense without relieving the OWNER of any of their obligations
under this paragraph.
19.2 It is the EXPRESS INTENT of the parties to this AGREEMENT that the INDEMNITY
provided for in this Article is an INDEMNITY extended by OWNER and BORROWER to
INDEMNIFY, PROTECT, and HOLD HARMLESS the CITY from the consequences of the CITY's
OWN NEGLIGENCE, provided however, that the INDEMNITY provided for in this Article SHALL
APPLY only when the NEGLIGENT ACT of the CITY is a CONTRIBUTORY OR CONCURRENT CAUSE
of the resultant injury, death, or damage, and shall have no application when the negligent act
of the CITY (or any of its elected officials, employees, officers, directors,volunteers, agents,
FY19 HOME Wayforward Page 19 of 55
and representatives) gross negligence and/or willful misconduct. OWNER and/or BORROWER
further AGREES TO DEFEND, AT ITS OWN EXPENSE and ON BEHALF OF THE CITY AND IN THE
NAME OF THE CITY,any claim or litigation brought against the CITY and their respective elected
officials, employees, officers, directors, volunteers, agents, and representatives, in connection
with any such injury, death, or damage for which this INDEMNITY shall apply, as set forth
above.
19.3 It is expressly understood and agreed that the OWNER and BORROWER are and shall
be deemed to be independent contractors and operators responsible to all parties for their
respective acts or omissions and that the CITY shall in no way be responsible therefor.
XX. PUBLICITY
20.1 In any news release, sign, (other than permanent signage on the Property), brochure, or
other advertising medium disseminating information prepared or distributed by or for OWNER,
mention shall be made of HUD funded the CITY participation having made the Project possible.
20.2 OWNER will have affirmative marketing procedures to market units to persons in the
housing market area without regard to race, color, national origin, sex, religion, familial status,
or disability. The affirmative marketing requirements apply and must be followed throughout
the affordability period.
XXI. PUBLICATIONS
21.1 All published materials and written reports submitted to the CITY pursuant to this
AGREEMENT shall be originally developed unless otherwise specifically provided for herein. If
material not originally developed is included in a report, however, said material shall have its
source identified, either in the body of the report or by footnote, regardless of whether the
material is in a verbatim or extensive paraphrase format.
21.2 All published materials submitted to the CITY pursuant to this Project shall include the
11 following reference on the front cover or title page:
"This document was prepared in accordance with the City of
Corpus Christi's HOME Investment Partnerships Program, with
funding received from the United States Department of Housing
and Urban Development."
FY19 HOME Wayforward Page 20 of 55
XXII. RIGHTS TO PROPOSAL AND CONTRACTUAL MATERIAL
22.1 Copies of all finished or unfinished reports, documents, data, studies, surveys, charts,
drawings, maps, models, photographs, designs, plans, schedules, or other appended
documentation to any proposal or contract, and any responses, inquiries, correspondence and
related material submitted to the CITY by the BORROWER, shall, upon receipt, become the
property of the CITY, unless otherwise specified.
XXIII. FUNDING APPLICATIONS
23.1 OWNER agrees to notify the CITY each time OWNER is preparing or submitting any
application for funding (other than as set forth in the Permitted Exceptions and/or OWNER's
partnership agreement) after the date hereof. When so preparing or submitting such an
application, the following procedures shall be adhered to by OWNER:
(A)When the funding application is in the planning stages,a description of the funds being
applied for and of the proposed use for the funds shall be submitted by OWNER to the
CITY;
(B) Upon award or notice of award, whichever is sooner, OWNER shall notify the CITY of
the award or notice thereof, and of the effect, if any, of such funding on the funds and
programs agreed to hereunder. Such notice shall be submitted by OWNER to the CITY, in
writing, within ten (10) business days of receipt of the award or notice thereof, together
with copies of the applicable budget, personnel complement, program description, and
contract; and
(C) Except pursuant to prior written consent of the CITY, the BORROWER shall not
use, either directly or indirectly, resources provided hereunder to prepare applications
for other federal, other public or private funds, nor shall said resources be used, directly
or indirectly, as contributions.
XXIV. NOTICE AND CURE
24.1 Notwithstanding anything to the contrary set forth herein or in any of the other Loan
Documents, if the CITY has determined that the OWNER or BORROWER have failed to comply
with any of the terms and/or conditions of this AGREEMENT and/or any of the terms of any of
the other Loan Documents, the CITY shall deliver notice thereof to the OWNER and BORROWER
of such determination, and the BORROWER and OWNER shall have (a) a minimum of ten (10)
days to cure monetary violations or defaults, and (b) a minimum of thirty (30) days to cure non-
monetary violations or defaults (or such longer period as may be set forth herein or in any of the
other Loan Documents) prior to enforcing any of it remedies set forth herein or in any of the
other Loan Documents. The CITY hereby agrees that any cure of any default made or offered by
OWNER or BORROWER or any affiliate of the OWNER or BORROWER or their respective
FY19 HOME Wayforward Page 21 of 55
successors or assigns shall be deemed to be a cure by the OWNER or BORROWER and shall be
accepted or rejected on the same basis as if made or tendered by the OWNER or BORROWER.
XXV. SUSPENSION OF FUNDING
25.1 Upon reasonable determination by the CITY of the BORROWER'S failure to timely and
properly perform pursuant to the provisions of this AGREEMENT beyond all applicable notice and
cure periods, or of any of the other Loan Documents beyond all applicable notice and cure
periods, the CITY, without limiting or waiving any rights it may otherwise have, may, at its
discretion, withhold any, all and further payments of HOME program funds to BORROWER.
25.2 The period of funding suspension shall be of such duration as the CITY reasonably deems
appropriate to accomplish corrective action, but in no event shall it exceed thirty (30) calendar
days. Upon expiration of the suspension period:
(A) Should the CITY determine that the default or deficiency has been cured, the
BORROWER may, at the CITY's option, be restored to full compliance status and paid all
eligible funds withheld during the suspension period; or
(B) Should the CITY determine continued non-compliance, the provisions of Article
XXVI hereunder may be effectuated.
XXVI. TERMINATION
26.1 "Termination" of this AGREEMENT shall mean termination by expiration of the
AGREEMENT term or earlier termination pursuant to any of the provisions hereof.
26.2 The CITY may terminate this AGREEMENT for any of the following reasons:
(A) Neglect or failure by the BORROWER to perform or observe any of the terms,
conditions, covenants or guarantees of 1) this AGREEMENT, 2) any of the other Loan
Documents, or 3) any other valid, written contract or amendment between the CITY and
the BORROWER with respect to the Property, beyond all applicable notice and cure
periods (which shall be deemed to include the notice and cure periods set forth in Section
24.1, which is applicable to all of the Loan Documents);
(B) Reserved;
(C) Reserved;
(D) Reserved;
FY19 HOME Wayforward Page 22 of 55
(E) Appointment of a trustee, receiver or liquidator for all or a material part of either
BORROWER PARTY's property, or institution of bankruptcy, reorganization,
rearrangement of or liquidation proceedings by or against either BORROWER PARTY, and
the same is not dismissed within ninety (90) days;
(F) The entry by a court of competent jurisdiction of a final order providing for the
modification or alteration of the rights of either BORROWER PARTY's creditors;
(G) Inability by the BORROWER to conform to changes in local, state and federal rules,
regulations and laws as required under this AGREEMENT and all Legal Requirements,
which inability has or is reasonably expected to have a material adverse effect on the
Project, within thirty (30) after receipt of notice from the CITY of the BORROWER' failure
to conform; and
(H) Violation by the BORROWER of any rule, regulation or law to which BORROWER is
bound or shall be bound under the terms of this AGREEMENT, which violation has or is
reasonably expected to have a material adverse effect on the Project and is not cured
within any applicable cure period.
26.3 The BORROWER may terminate this AGREEMENT for any of the following reasons:
(A) Cessation of outside funding upon which OWNER depends for performance
hereunder; OWNER may opt, however, within the limitations of this AGREEMENT and
with the written approval of the CITY,to seek an alternative funding source, provided that
the termination of funding by the initial outside source was not occasioned by a breach
by the BORROWER of this Agreement or as defined in a contract between OWNER and
the funding source in question;
(B) Upon the dissolution of the OWNER organization, provided such dissolution was
not occasioned by a breach of this AGREEMENT; or
(C) The CITY fails to fund the Loan in accordance with the terms of the Loan
Documents, and such failure is not cured within thirty (30) days after the BORROWER'
delivery of notice thereof to the CITY.
26.4 Upon a decision to terminate by the CITY or OWNER, written notice of such, and the
effective date thereof, shall be immediately provided to the other party.
26.5 Upon receipt of notice to terminate in accordance with the terms of this Agreement, the
BORROWER shall cancel, withdraw, or otherwise terminate any and all outstanding orders and
subcontracts, which relate to the performance of this AGREEMENT. To this effect, the CITY shall
not be liable to the BORROWER or their creditors for any expense, encumbrances or obligations
whatsoever incurred after the date of termination or which was not canceled, withdrawn or
otherwise terminated by the BORROWER in accordance with the provisions of this paragraph.
FY19 HOME Wayforward Page 23 of 55
26.6 Upon receipt of notice to terminate in accordance with the terms of this Agreement,
copies of all finished or unfinished documents, data, studies, surveys, charts, drawings, maps,
models, photographs, designs, plans, schedules, or other appended documentation to any
proposal or contract, prepared by or on behalf of the BORROWER under this AGREEMENT shall,
if requested by the CITY, and in accordance with Article XXVII hereof, be delivered by the
BORROWER to the CITY in a timely and expeditious manner.
26.7 Within thirty (30) calendar days after receipt of notice to terminate in accordance with
the terms of this Agreement, the BORROWER shall submit a statement to the CITY, indicating in
detail the services performed under this AGREEMENT prior to the effective date of termination.
26.8 Any termination of this AGREEMENT as herein provided shall not relieve OWNER from the
payment of any sum(s) that shall then be due and payable or become due and payable BY the
BORROWER to the CITY hereunder or as provided for at law or in equity,or any claim for damages
then or theretofore accruing against the BORROWER hereunder or by law or in equity, and any
such termination shall not prevent the CITY from enforcing the payment of any such sum(s) or
claim for damages from OWNER. Instead, all rights, options, and remedies of the CITY contained
in this AGREEMENT shall be construed and held to be cumulative and no one of them shall be
exclusive of the other, and the CITY shall have the right to pursue any one or all of such remedies
or any such other remedy or relief which may be provided by law or in equity whether or not
stated in this AGREEMENT.
26.9 Should this AGREEMENT be terminated by the CITY or OWNER for any reason permitted
by the terms of this Agreement, if the work required hereunder of the BORROWER is not fully
completed to the reasonable satisfaction of the CITY in accordance with the terms of this
AGREEMENT, the BORROWER shall refund any and all sums of money paid by the CITY to
BORROWER within ten (10) business days of the CITY's written request therefor.
26.10 Upon termination of this AGREEMENT by the CITY under paragraph number 26.2(A)
hereof, OWNER shall be barred from future contracts with the CITY absent the express written
consent of the General Manager, or his designate, to contract with the CITY.
XXVII. SPECIAL CONDITIONS
27.1 Federal Drug Free Workplace Act. the BORROWER shall comply with the Federal Drug
Free Workplace Act of 1988 and the regulations promulgated thereunder including, without
limitation, 2 CFR Part 182.
27.2 National Flood Protection Act. The Improvements will be constructed in compliance with
elevation requirements that meet or exceed the National Flood Protection Act, and any local
requirements.
FY19 HOME Wayforward Page 24 of 55
27.3 Byrd Amendment: Prohibition for Influencing Federal Entities. To the best of the
BORROWER' knowledge, the BORROWER have complied with all restrictions, certifications and
disclosure requirements contained in the Byrd Amendment to the fiscal 1990 appropriations
measures for the United States Department of the Interior (P.L. 101-121) and any guidelines and
rules issued by any federal entity in connection therewith, if applicable.
27.4 Procurement. OWNER shall ensure that all professional and contractual services in
connection with Project implementation shall be procured in accordance with 24 CFR 570, 2 CFR
200, The Common Rule, Procurement, Competitive Standards and all other federal laws and
regulations to the extent applicable to the Project.
27.5 CITY Authorization. The BORROWER understand and acknowledge that the CITY shall not
be liable for any cost, or portion thereof, which is or was incurred in connection with an activity
of the BORROWER where prior written authorization from the CITY is required for the activity
and such authorization was not first procured, or the CITY has requested that the BORROWER
furnish data concerning an activity prior to proceeding further therewith and the BORROWER
nonetheless process without first submitting the data and receiving approval thereof.
27.6 Davis-Bacon. the BORROWER understands and agrees that Davis-Bacon Wage and Hour
Requirements shall apply to HOME funded projects when, in accordance with 24 CFR 92.354,
twelve (12) or more units are rehabilitated or newly constructed. The CITY acknowledges that
this Project has less than twelve (12) HOME-assisted units and these requirements are not
applicable in this instance.
27.7 Protect Completion Report. OWNER shall accurately complete a Project Completion
Report (HUD form 40097) upon completion of each Project activity, and forward the original
completed form to the CITY within ninety (90) calendar days after OWNER's receipt of the final
remittance of AGREEMENT funds by the CITY for such Project activity. OWNER understands and
acknowledges that new Project Set-up Reports will not be processed by the CITY if there are any
outstanding Project Completion Reports due.
27.8 Compliance. OWNER shall ensure that all HOME-assisted units constructed with
assistance made available to the BORROWER by the CITY under this AGREEMENT shall comply
with the provisions set forth herein this AGREEMENT as to all federal laws, rules and regulations
including, but not limited to the following:
(A) The HOME Investment Partnerships Act at Title II of the Cranston-Gonzalez
National Affordable Housing Act, as amended,42 U.S.C. 12701, et seq., and implementing
regulations contained in 24 CFR Part 92;
(B) The HOME Program Guidelines and Application Package;
(C) The "Other Federal Requirements" as herein referred to and attached as Exhibit
F;
FY19 HOME Wayforward Page 25 of 55
(D) The "Certification Regarding Lobbying" as herein referred to, attached and
executed as Exhibit G.
27.9 Site Specific Environmental Review Records. OWNER shall complete all Site Specific
Environmental Review Records for each property/parcel of this Project and submit such records
to the CITY. The CITY must approve in writing such records prior to any Project activity cost being
incurred. The CITY hereby acknowledges that such approval has been given.
27.10 Local Vendors. To the greatest extent feasible, agreements for work to be performed in
connection with this Project shall be awarded to business concerns including, but not limited to,
individuals or firms doing business in the field of planning, consulting, design, architecture,
building construction, maintenance, or repair, that are located in or owned in substantial part by
persons residing in the same metropolitan area or non-metropolitan county as this Project.
27.11 HUD HOME Income Guidelines. OWNER understands and agrees that all HOME-assisted
units in the Project herein, shall only be leased to and occupied by households that are eligible
as low-income families, in accordance with HUD HOME Income Guidelines.
27.12 HOME Units. OWNER understands and agrees that all of the HOME-assisted units in the
Project shall be floating units. One hundred percent (100%) of HOME-assisted units will be high
HOME rent as is provided in Exhibit H.
27.13 Tenant Selection Policy. OWNER shall adopt written tenant selection policies and criteria,
such as a written waiting list, as required by 24 CFR 92.253(d).
27.14 Rent Limitations. OWNER understands that the rents for HOME-assisted rental housing
units are restricted by the Rent Standard established in 24 CFR 92.252 (a)(1). The standard
establishes one set of maximum HOME Program Rents for HOME-assisted units occupied by low-
income households and another set for units occupied by very low-income households.
27.15 Tenant Leases. OWNER understands that the lease between BORROWER and the tenant
in a HOME-assisted unit must:
(A) Be written;
(B) Be for a term of at least one year, unless there is mutual agreement between the
tenant and OWNER for a different term, 24 CFR 92.253(a);
(C) Include termination provisions, 24 CFR 92.253(c);
(D) Specify allowable HOME rents, 24 CFR 92.252(f)(3);
(E) Identify Federally prohibited lease clauses outlined at 24 CFR 92.253(b);
FY19 HOME Wayforward Page 26 of 55
(F) Require compliance with applicable state and local tenant-landlord laws;
(G) Specify applicable property standards; and
(H) Comply with the conditions established in Section 27.17 below with respect to the
tenant participation plan.
27.16 Management. OWNER shall contract a management company so as to operate and
manage the Property upon completion of construction phase. The management contract shall
be for no less than 12 (twelve) months. The management company must have at least one-year
experience in managing a Section 8 property. OWNER shall provide a copy of said management
contract upon execution. Said contract shall outline all HUD occupancy requirements
(§92.203(a)(1)(i) and §92.203(a)(1)(ii) & §92.252(h)) and rent limits (24 CFR 92.252). The CITY
hereby approves of Wedge Management, Inc., to serve as the management company, and the
CITY has reviewed and approved of the Property Management Agreement between OWNER and
Wedge Management, Inc.
27.17 Tenant Participation Plan. OWNER shall create and follow a tenant participation plan as
required in 24 CFR 92.303.
27.18 Unified Rule for Tenant-Based Assistance. OWNER shall not discriminate against any
certificate or voucher holder in accordance to 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.
27.19 Affordability Term. OWNER understands and agrees that HOME-assisted units shall meet
the affordability requirements for not less than twenty (20) years, commencing upon Project
completion date as determined by the CITY.
27.20 Adjustments to Rents. The CITY shall provide OWNER with information on updated HUD
HOME rent limits so that rents may be adjusted (not to exceed the maximum HOME rent limits
provided by HUD to the CITY upon HUD's determination of fair market rents and median incomes)
in accordance with this AGREEMENT. OWNER shall annually provide the CITY with
documentation on rents and occupancy of HOME-assisted units to demonstrate compliance.
27.21 Rent Increase Notices. OWNER understands and agrees that any increase in rents for
HOME-assisted units is subject to the provisions of outstanding leases, and in any event, OWNER
shall provide tenants of those units not less than thirty (30) days prior written notice before
implementing any increase in rents.
27.22 Income Determination. OWNER understands and agrees that the income of each tenant
of a HOME-assisted unit shall be determined initially in accordance with 24 CFR 92.203(a)(1)(i).
FY19 HOME Wayforward Page 27 of 55
OWNER shall annually re-examine each such tenant's annual income during the period of
affordability in accordance with one of the options in 24 CFR 92.203.
27.23 Temporary Noncompliance. OWNER shall ensure that HOME-assisted units continue to
qualify as Affordable housing despite a temporary noncompliance caused by increases in the
incomes of existing tenants if actions satisfactory to the CITY are being taken to ensure that all
vacancies are filled in accordance with 24 CFR 92.252 until the noncompliance is corrected.
27.24 Adjusted Income Limitations. OWNER shall ensure that tenants of HOME-assisted units
who no longer qualify as low-income families must pay, as rent,the lesser of the amount payable
by the tenant under State or local law or thirty percent (30%) of the family's adjusted income,
except that tenants of HOME-assisted units that have been allocated low-income housing tax
credits by a housing credit agency pursuant to Section 42 of the Internal Revenue Code of 1986
(26 U.S.C. 42) must pay rent governed by Section 42.
27.25 Housing and Urban Development Act of 1968. OWNER acknowledges, understands and
agrees to comply with the following federal regulations as promulgated in Section 3 of the
Housing and Urban Development Act of 1968, as amended, if applicable:
(A) The work to be performed under this AGREEMENT is subject to the requirements
of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C.
1701u (Section 3). The purpose of Section 3 is to ensure that employment and other
economic opportunities generated by HUD assistance or HUD-assisted projects covered
by Section 3, shall, to the greatest extent feasible, be directed to low- and very low-
income persons, particularly persons who are recipients of HUD assistance for housing.
(B) The parties to this AGREEMENT agree to comply with HUD's regulations in 24 CFR
Part 135, which implement Section 3. As evidenced by their execution of this
AGREEMENT, the parties to this AGREEMENT certify that they are under no contractual
or other impediment that would prevent them from complying with the Part 135
regulations.
(C) OWNER agrees to send to each labor organization or representative of workers
with which the contractor has a collective bargaining agreement or other understanding,
if any, a notice advising the labor organization or workers' representative of the
contractor's commitments under the Section 3 clause, and will post copies of the notice
in conspicuous places at the work site where both employees and applicants for training
and employment positions can see the notice. The notice shall describe the Section 3
preference, shall set forth minimum number and job titles subject to hire, availability of
apprenticeship and training positions, the qualifications for each; and the name and
location of the person(s)taking applications for each of the positions; and the anticipated
date the work shall begin.
FY19 HOME Wayforward Page 28 of 55
(D) OWNER agrees to include the Section 3 clause in every subcontract subject to
compliance with regulations in 24 CFR Part 135, and agrees to take appropriate action, as
provided in an applicable provision of the subcontract or in the Section 3 clause upon a
finding that the subcontractor is in violation of the regulations in 24 CFR Part 135. OWNER
will not subcontract with any subcontractor where OWNER has notice or knowledge that
the subcontractor has been found in violation of the regulations in 24 CFR Part 135.
(E) OWNER will certify that any vacant employment positions, including training
positions, that are filled (1) after contractor is selected but before the contract is
executed, and (2) with persons other than those to whom the regulations of 24 CFR Part
135 require employment opportunities to be directed, were not filled to circumvent
BORROWER's obligations under 24 CFR Part 135.
(F) Noncompliance with HUD's regulations in 24 CFR Part 135 may result in sanctions,
termination of this AGREEMENT for default, and debarment or suspension from further
HUD-assisted contracts.
(G) With respect to work performed in connection with Section 3-covered Indian
housing assistance, Section 7(b) of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450e) also applies to the work to be performed under this
AGREEMENT. Section 7(b) requires that to the greatest extent feasible (i) preference and
opportunities for training and employment shall be given to Indians, and (ii) preference
in the award of contracts and subcontracts shall be given to Indian organizations and
Indian-owned Economic Enterprises. Parties to this AGREEMENT that are subject to the
provision of Section 3 and Section 7(b) agree to comply with Section 3 to the maximum
extent feasible, but not in derogation of compliance with Section 7(b).
XXVIII. CHANGES AND AMENDMENTS
28.1 Except when the terms of this AGREEMENT expressly provide otherwise, any alterations,
additions, or deletions to the terms hereof shall be by amendment in writing executed by
authorized representatives of both the CITY and the BORROWER.
28.2 Whenever and as often as reasonably deemed necessary by the CITY, the CITY may
request and require changes to OWNER's Construction Schedule required under this
AGREEMENT (to be submitted in accordance with Article XVIII), subject to any consent required
by the Senior Lender or OWNER's limited partner; such changes as requested or required by the
CITY, however, must be by written amendment.
28.3 Except pursuant to (a) prior submission by OWNER of detailed information regarding
budget and Project revisions, and (b) prior written approval thereof by, the CITY, OWNER shall
not make any material change orders in excess of $50,000 for any single change order or
$100,000 in the aggregate. Instead, OWNER shall request budget revisions in writing and in a
FY19 HOME Wayforward Page 29 of 55
I
form prescribed by the CITY; such request for revisions, however, shall not increase the total
monetary obligation of the CITY as provided for pursuant to this AGREEMENT, nor shall said
revisions significantly change the nature, intent, or scope of the Project funded hereunder.
28.4 In the event that the level of funding for OWNER or for the Project described herein is
materially altered, OWNER shall submit, promptly upon request by the CITY, revised budget and
Project information so as to enable re-evaluation by the CITY of the original funding levels set
forth in the Construction Schedule.
28.5 It is understood and agreed by the parties hereto that changes in local, state and federal
rules, regulations or laws applicable hereto may occur during the term of this AGREEMENT and
that any such changes shall be automatically incorporated into this AGREEMENT without written
amendment hereto, and shall become a part hereof as of the effective date of the rule, regulation
or law.
28.6 OWNER further agrees to notify the CITY of any changes in its general partner,such notice
to be provided within five (5) business days of the change.
XXIX. ASSIGNMENTS
29.1 Except as provided for in the OWNER's formation documents, the BORROWER shall not
transfer, pledge or otherwise assign this AGREEMENT, any interest in and to same, or any claim
arising thereunder, without first procuring the written approval of the CITY's Manager or the City
Manager's authorized designee. Any attempt at transfer, pledge or other assignment shall be
void ab initio and shall confer no rights upon any third person.
XXX. NO WAIVER OF PROVISIONS OR COMPLIANCE
30.1 Any failure by the CITY to insist, or any election by the CITY not to insist, upon the strict
performance by the BORROWER of any of the terms, provisions or conditions of the Loan
Documents shall not be deemed to be a waiver of same or of any other term, provision or
condition thereof, and the CITY shall have the right at any time thereafter to insist upon strict
performance by the BORROWER of any and all of same. Additionally, no advance by the CITY of
any Loan proceeds shall in any way preclude the CITY from thereafter declaring a failure by the
BORROWER to comply with any of the terms, provisions or conditions of the Loan Documents
an event of default (provided all notice and cure periods have expired) or, as applicable, a reason
for termination in accordance with this AGREEMENT.
FY19 HOME Wayforward Page 30 of 55
XXXI. NON-WAIVER OF PERFORMANCE
31.1 No waiver by the CITY of a breach of any of the terms,conditions,covenants or guarantees
of this AGREEMENT shall be construed or held to be a waiver of any succeeding or preceding
breach of the same or any other term, condition, covenant or guarantee herein contained.
Further, any failure of the CITY to insist in any one or more cases upon the strict performance of
any of the covenants of this AGREEMENT, or to exercise any option herein contained, shall in no
event be construed as a waiver or relinquishment for the future of such covenant or option. In
fact, no waiver, change, modification or discharge by either party hereto of any provision of this
AGREEMENT shall be deemed to have been made or shall be effective unless expressed in writing
and signed by the party to be charged.
31.2 No act or omission of the CITY shall in any manner impair or prejudice any right, power,
privilege, or remedy available to the CITY hereunder or by law or in equity, such rights, powers,
privileges, or remedies to be always specifically preserved hereby.
31.3 No representative or agent of the CITY may waive the effect of the provisions of this
Article.
XXXII. RENEWAL NOT AUTOMATIC
32.1 Intentionally omitted.
XXXII!. TEXAS LAW TO APPLY
33.1 THIS AGREEMENT SHALL BE CONSTRUED UNDER AND IN ACCORDANCE WITH THE LAWS
OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF
LAW PRINCIPALS OR RULES, AND ALL OBLIGATIONS OF THE PARTIES CREATED HEREUNDER ARE
PERFORMABLE IN NUECES COUNTY, TEXAS.
XXXIV. SEVERABILITY OF PROVISIONS
34.1 If any clause or provision of this AGREEMENT is held invalid, illegal or unenforceable under
present or future federal, state or local laws, including but not limited to the CITY's City Charter,
CITY's City Code, or ordinances of the City of Corpus Christi,Texas, then and in that event it is the
intention of the parties hereto that such invalidity, illegality or unenforceability shall not affect
any other clause or provision hereof and that the remainder of this AGREEMENT shall be
construed as if such invalid, illegal or unenforceable clause or provision was never contained
herein; it is also the intention of the parties hereto that in lieu of each clause or provision of this
AGREEMENT that is invalid, illegal, or unenforceable,there be added as a part of the AGREEMENT
a clause or provision as similar in terms to such invalid, illegal or unenforceable clause or
provision as may be possible, legal, valid and enforceable.
FY19 HOME Wayforward Page 31 of 55
XXXV. RELATIONSHIP OF PARTIES
35.1 Nothing contained herein shall be deemed or construed by the parties hereto, or by any
third party, as creating the relationship of principal and agent, partners, joint venturers or any
other similar such relationship between the parties hereto.
35.2 It is expressly understood and agreed that the BORROWER are and shall be deemed to be
independent contractors and operators responsible to all parties for their respective acts or
omissions and that the CITY shall in no way be responsible therefor.
XXXVI. PARTIES BOUND
36.1 This AGREEMENT shall be binding on and inure to the benefit of the parties hereto and
their respective heirs, executors, administrators, legal representatives, successors and assigns,
except as otherwise expressly provided herein.
XXXVII. ENTIRE -AGREEMENT
37.1 This AGREEMENT, along with the other Loan Documents, constitutes the final and entire
agreement between the parties hereto and contains all of the terms and conditions agreed upon.
No other agreements, oral or otherwise, regarding the subject matter of this AGREEMENT shall
be deemed to exist or to bind the parties hereto unless same is in writing, dated subsequent to
the date hereof, and duly executed by the parties.
XXXVI I I. INTERPRETATION
38.1 In the event any disagreement or dispute should arise between the parties hereto
pertaining to the interpretation or meaning of any part of this AGREEMENT or its governing rules,
regulations, laws, codes or ordinances, the CITY, as the party ultimately responsible to HUD for
matters of compliance, shall have the final authority to secure an interpretation from HUD.
38.2 Notices. All notices demands, requests or other communications required or permitted
to be given pursuant to the provisions of this Agreement shall be in writing and shall be
considered properly given if mailed by first class United States mail, postage prepaid, registered
or certified with return receipt requested, or by depositing same with Federal Express or another
reputable private courier service for next business day delivery or by delivering same in person
to the intended addressee All notices, demands and requests shall be effective upon such
personal delivery, or one (1) business day after being deposited with the private courier service,
or three (3) business days after deposit in the custody of the U.S. Postal Service. Rejection or
other refusal to accept or the inability to deliver because of changed address of which no notice
FY19 HOME Wayforward Page 32 of 55
was given as herein required shall be deemed to be receipt of the notice, demand or request
sent. For purposes of notice, the addressee of the parties shall be as follows:
To Lender: City of Corpus Christi, Texas
P.O. Box 9277
Corpus Christi, Texas 78469-9277
Attention: Director, Grant Monitoring Department
Fax: 361-826-1740
To Either Borrower Party: WAYFORWARD
c/o FISH POND LIVING AT CORPUS CHRISTI, LP
500 W. 2nd St. Ste 1900#29
Austin, Texas 78701
Attention: Scott Frazier
Fax: 512.635.7951
With a copy to Owner:
Fish Pond Living at Corpus Christi, LP
500 West 2nd Street, Suite 1900#29
Austin, TX 78701
Attention: David M. Fournier
With a copy to
The Funding Lender
Representative
(as of Freddie Mac Purchase Date):
Federal Home Loan Mortgage Corporation
8100 Jones Branch Drive, MS B4P
McLean, Virginia 22102
Attention: Multifamily Operations - Loan Accounting
Telephone: (703) 714-4177
Email: mfla@freddiemac.com
with a copy to:
Federal Home Loan Mortgage Corporation
8200 Jones Branch Drive, MS 210
McLean, Virginia 22102
Attention: Managing Associate General Counsel—
Multifamily Legal Division
Telephone: (703) 903-20002811
Email:joshua_schonfeldguy_nelson@freddiemac
FY19 HOME Wayforward Page 33 of 55
Initial Funding Lender
and Servicer: Berkadia Commercial Mortgage LLC
2500 Bee Cave Road Bldg 3, Suite 550
Austin, Texas 78746
Attention: Lloyd Griffin
Email: lloyd.griffin@berkadia.com
Telephone: (512) 226-7810
With a Copy to Construction Lender:
Sterling Bank
50 s. Bemiston Ave.
Clayton, MO 63105
Attn: Phil Minden
With a Copy to;
Texas Department of Housing and Community Affairs
Physical Address: 221 E. 11th Street, Austin, TX 78701
Mailing Address: P.O. Box 13941 Austin, Texas 78711-3941
Attention: Director of Multifamily Finance Division
With a copy to Investor Member:
PNC Real Estate Tax Credit Capital
Institutional Fund 47, Limited Partnership
121 SW Morrison Street
Suite 1300
Portland, Oregon 97204
Attn: Fund Manager
With a copy to:
Nixon Peabody LLP
799 9th Street NW
Washington, D.C. 20001
Attn: Matthew Mullen
Any party shall have the right to change its address for notice hereunder to any other location
within the continental United States by the giving of twenty (20) days' notice to the other party
in the manner set forth herein.
FY19 HOME Wayforward Page 34 of 55
38.3 Headings. The article, paragraph and subparagraph entitlements hereof are inserted for
convenience of reference only and in no way shall alter, modify or define, or be used in
construing, the text of such Articles, Paragraphs or Subparagraphs.
38.4 Reserved.
38.5 Force Majeure. Notwithstanding anything to the contrary herein set forth, an equitable
adjustment shall be made for delay or failure in performing hereunder if such delay or failure is
caused, prevented, or restricted by conditions beyond the reasonable control of the party that
was to perform (a "Force Majeure Event"). A Force Majeure Event shall include, but not be
limited to: acts of God; fire, explosion; vandalism; storm or similar occurrences; pandemics;
orders or acts of any kind of any governmental authority, including without limitation any civil or
military authority; restraint of government and/or people; litigation; changes in law, rules or
regulations outside the control of the affected party; national emergencies or insurrections; riots;
acts of terrorism; supplier failures; or shortages.
38.6 Subordination. The terms and provisions of this Agreement and the other Loan
Documents are subject in all respects to the terms of the Wells Subordination Agreement, and
subject and subordinate in all respects to the terms and provisions of the Senior Loan Documents.
38.7 Notwithstanding anything to the contrary set forth in this Agreement or any of the other
Loan Documents to the contrary, OWNER shall have the right to fulfill BORROWER's obligations
under this Agreement and the other Loan Documents, and in each such instance the CITY shall
accept OWNER's actions to fulfill each such obligation as if the applicable actions were taken by
BORROWER.
[Executed on the following pages]
FY19 HOME Wayforward Page 35 of 55
Executed in duplicate originals to be effective as of the date first set forth above.
ATTEST: CITY OF CORPUS CHRISTI, TEXAS
z--; �,� / ,/ r1kb/u
Name:`;1becca Huerta Name: Keith Selman
City Secretary Assistant City Manager
MUtNQR1L
MM )6 ACKNOWLEDGMENT
SECRETARY
STATE OF TEXAS §
�`� KNOW ALL BY THESE PRESENTS:
COUNTY OF k N §
��"This instrument was acknowledged before me on this ay of V�:�U1 , 2020
by 1Y - OAIN S-4) MCA , 1- SI`ArttAk NAM OLAAibci-Q.✓ of the CITY OF
CORPUS CHRISTI, TEXAS, a Texas Home Rule Municipal Corporation', on behalf of said
corporation
1 ''"'' e: [S EMArililAVAZQUEZ
.: My Notary ID:128028579 ' '/ es
BpkesMarch 5,2022 Notary Public, State . exas
APPROVED AS TO FORM:
THIS 3 DAY OFg.;(541-%-2020
.40P1111)
By: "-'��_
Name: W. Kent Mcllyar
Assistant City Attorney
For Miles Risley, City Attorney
I
I
OWNER: BORROWER:
FISH POND LIVING AT CORPUS CHRISTI WAYFORWARD
a Texas limited partnership a Texas nonprofit corporation
By: Fish Pond Corpus Christi Manager,
a Texas limited liability company, By: n
its general partner Scott Frazier,
President
By:
David Fournier, Managing Member
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF l✓it-vis §
This instrument was acknowledged before me on this 36day of October, 2020,
by Scott Frazier, President of WAYFORWARD, a Texas nonprofit corporation, as
President of said non-profit corporation
[ SEAL]
Notary Public, State of Texas
s`t`Mol'i, MICHAEL WAYNE OBERRENDER
-:Notary Public, State of Texas
Comm. Expires 10-01-2022
',i„°,;,;o` Notary ID 131744022
37
OWNER: BORROWER:
FISH POND LIVING AT CORPUS CHRISTI WAYFORWARD
a Texas limited partnership a Texas nonprofit corporation
By: Fish Pond Corpus Christi Manager, LLC
a Texas limited liability company, By:
its general py j-r Scott Frazier,
// President
By: %/j/ L"---------/!/
David Fou' ier, Managing Member
ACKNOWLEDGMENT
STATE OF TEXAS §
§
COUNTY OF §
This instrument was acknowledged before me on this day of October, 2020, by Scott
Frazier, President of WAYFORWARD, a Texas nonprofit corporation, as President of said non-
profit corporation
[ SEAL]
Notary Public, State of Texas
STATE OF TEXAS §
COUNTY OF 1r ►� §
This instrument was acknowledged before me on this .eit5 day of October, 2020,
by David Fournier, Managing Member of FishPond Corpus Christi Manager, LLC, a Texas
limited liability company, as General Partner of FishPond Living at Corpus Christi, LP, a
Texas limited partnership, the Owner, on behalf of said Partnership.
[ SEAL ]
/1110
Notary Public, State of Texas
•_.‘'"PPY"nv"2,i MICHAEL WAYNE OBERRENDEA
_,:'' �=Notary Public, State of Texas
Comm. Expires 10-01-2022
%F:), ,,oNotary ID 131744022
[Type here]
HOME Contract Sig pages
Exhibit 1 The Land
Exhibit A Budget and Construction Schedule
Exhibit B Deed Restrictions/ Covenant of Affordability
Exhibit C Reserved
Exhibit D Reserved
Exhibit E Insurance
Exhibit F Other Federal Requirements
Exhibit G Certificate Regarding Lobbying
Exhibit H HOME Rent and Income Limits
FY19 HOME Wayforward Page 38 of 55
EXHIBIT 1
The Land
All the certain real property located in the County of Nueces, State of Texas, described as follows:
Block five (5), Lot twenty-three (23), PUD. BAY TERRACE, a
Subdivision of the City of Corpus Christi,Nueces County,Texas,as
shown by the map or plat thereof recorded in Volume 69, Page 453,
Map Records of Nueces County, Texas
FY19 HOME Wayforward Page 39 of 55
I
EXHIBIT A
Budget & Construction Schedule
Project Name: FishPond at Corpus Christi Project Location: 900 Buford Street.
Property Owner: Fish Pond Living at Corpus Christi, LP
Total Project Cost: $18,395,123, HOME FY19 Award: $350,000.00
Budget
Project Financial Resources: (list may be adjusted to meet your project)
(Funds available to complete project) Amount
• Deferred Developer Fee $585,995
• FY 2019 HOME Fund $350,000
• Corpus Christi Type A $500,000
• Other: LIHTC $5,659,128
• Construction/Permanent Loan $7,300,000
• TDHCA Direct Loan $4,000,000
Total Funds Available for Project $18,395,123
Estimated Expenses: (list may be adjusted to meet your project)
(List estimated expenses to complete your project) such as: Amount
• Land Acquisition $203,000
• Site Work Costs $674,006
• Direct New Construction Costs (includes HOME funds$350,000)$10,288,754
• Other Construction Costs (Fees, OH, Profit) $1,081,000
• Contingency $1,200,000
• Indirect/ Soft Costs $1,132,700
• Developer Fees $2,250,000
• Financing Related Costs $1,247,500
• Project Reserves $318,163
Total Project Cost $18,395,123
FY19 HOME Wayforward Page 40 of 55
Construction Schedule
(Project Dates for completion of key project phases)
Projected Dates
• Design/Bid Documents (specification packet) completed 10/15/2020
• Platting/Soil Testing(lead based paint, environmental, etc.) Completed
• Construction Contract Award 11/1/2020
• Land Acquisition Completed
• Start Construction 11/15/2020
• Construction 100%completion 02/01/2022
NOTE: HUD/HOME Program does not require PJ to manage procurement process due to this project being supported
by Low Income Housing Tax Credits,Developer is required to obtain a Prime Contractor early on before Tax Credit
funds are committed. Although HUD/HOME Program does not require PJ to manage procurement process, HOME
does require PJ to secure copies of contract with Prime Contractor and therefore said contract must be provided to PJ.
FY19 HOME Wayforward Page 41 of 55
I
EXHIBIT B
DEED RESTRICTIONS COVENANT
TO BIND PROPERTY
FOR PERIOD OF AFFORDABILITY
STATE OF TEXAS §
§ KNOW ALL BY THESE PRESENTS:
COUNTY OF NUECES §
Pursuant to that HOME Grant Agreement dated to be effective as of
, 2020, entered into between the CITY of Corpus Christi, a
Texas home-rule municipal corporation (the "CITY") and WAYFORWARD, a Texas nonprofit
corporation, hereinafter referred to as ("WAYFORWARD"). which is the legal title holder to
property described below (the "HOME Agreement"), is incorporated in this instrument by
reference, WAYFORWARD accepted federal funds in conjunction with the United States
Department of Housing and Urban Development's Home Investment Partnership Program
administered by CITY, for the development of multifamily housing to be known as the Fishpond
at Corpus Christi Apartments and located on the following property:
Block five (5), Lot twenty-three (23), PUD. BAY TERRACE, a
Subdivision of the City of Corpus Christi,Nueces County,Texas,as
shown by the map or plat thereof recorded in Volume 69, Page 453,
Map Records of Nueces County,Texas
Pursuant to the terms, conditions, and covenants contained within the HOME Agreement,
WAYFORWARD, in consideration of receiving the funding, agrees to bind the Property with the
affordability requirements specified in the HOME Agreement and Title 24, Part 92.252, of the
United States Code of Federal Regulations,for a period of not less than twenty(20)years from the
date of completion of the construction of the project on the Property, which shall be evidenced by
the issuance of certificates of occupancy (or the jurisdictional equivalent)for the buildings located
on the Property.
(EXECUTION PAGE FOLLOWS)
FY19 HOME Wayforward Page 42 of 55
This instrument constitutes a covenant running with the land required by federal law
and binds WAYFORWARD, and its successors, heirs, assigns, and transferees, such
Property being subject to this instrument.
WAYFORWARD.,
Texas nonprofit corporation,
By:
Scott Frazier,President
STATE OF TEXAS §
COUNTY OF -77-41-4,;5 §
This instrument was acknowledged before me on this 30/1'day of 0 cf's4''— ,2020,
by Scott Frazier,President of WAYFORWARD,a Texas nonprofit corporation, on behalf of said
corporation.
[ SEAL]
Notary Public, State of Texas
AFTER RECORDING RETURN TO:
��`1Y PUB�i MICHAEL WAYNE OBERRENDER
' • -Notary Public,State of Texas
°P; Comm.Expires 10-01-2022
ATTN: Director, Grant Monitoring Department Notary ID 131744022
P. O. Box 9277
Corpus Christi,TX 78469-9277
EXHIBIT C
(Reserved)
FY19 HOME Wayforward Page 44 of 55
0
EXHIBIT D
(Reserved)
FY19 HOME Wayforward Page 45 of 55
EXHIBIT E
INSURANCE REQUIREMENTS
I. CONTRACTOR'S LIABILITY INSURANCE
A. Contractor must not commence work under this contract until all insurance required has
been obtained and such insurance has been approved by the City. Contractor must not
allow any subcontractor, to commence work until all similar insurance required of any
subcontractor has been obtained.
B. Contractor must furnish to the City's Risk Manager and Contract Administer one (1)copy
of Certificates of Insurance with applicable policy endorsements showing the following
minimum coverage by an insurance company(s) acceptable to the City's Risk Manager.
The City must be listed as an additional insured on the General liability and Auto Liability
policies by endorsement, and a waiver of subrogation endorsement is required on all
applicable policies. Endorsements must be provided with Certificate of Insurance. Project
name and/or number must be listed in Description Box of Certificate of Insurance.
TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE
30-day advance written notice of Bodily Injury and Property Damage
cancellation, non-renewal, material change Per occurrence - aggregate
or termination required on all certificates
and policies.
CRIME/EMPLOYEE DISHONESTY $500,000 Per Claims Made
Contractor shall name the City of Corpus
Christi, Texas as Loss Payee
C. In the event of accidents of any kind related to this contract, Contractor must furnish the
Risk Manager with copies of all reports of any accidents within 10 days of the accident.
II. ADDITIONAL REQUIREMENTS
A. Applicable for paid employees, Contractor must obtain workers' compensation coverage
through a licensed insurance company. The coverage must be written on a policy and
endorsements approved by the Texas Department of Insurance. The workers'
compensation coverage provided must be in statutory amounts according to the Texas
Department of Insurance,Division of Workers'Compensation. An All States Endorsement
shall be required if Contractor is not domiciled in the State of Texas.
B. Contractor shall obtain and maintain in full force and effect for the duration of this
Contract, and any extension hereof, at Contractor's sole expense, insurance coverage
written on an occurrence basis by companies authorized and admitted to do business in the
State of Texas and with an A.M. Best's rating of no less than A- VII.
C. Contractor shall be required to submit renewal certificates of insurance throughout the term
of this contract and any extensions within 10 days of the policy expiration dates. All
notices under this Exhibit shall be given to City at the following address:
City of Corpus Christi
Attn: Risk Manager
.P.O. Box 9277
Corpus Christi, TX 78469-9277
I). Contractor agrees that, with respect to the above required insurance, all insurance
policies are to contain or be endorsed to contain the following required provisions:
• List the City and its officers, officials, employees, and volunteers, as additional insureds
by endorsement with regard to operations, completed operations, and activities of or on
behalf of the named insured performed under contract with the City, with the exception of
the workers' compensation policy;
• Provide for an endorsement that the "other insurance" clause shall not apply to the City of
Corpus Christi where the City is an additional insured shown on the policy;
• Workers' compensation and employers' liability policies will provide a waiver of
subrogation in favor of the City; and
• Provide thirty (30) calendar days advance written notice directly to City of any,
cancellation,non-renewal,material change or termination in coverage and not less than ten
(10) calendar days advance written notice for nonpayment of premium.
E. Within five (5) calendar days of a cancellation, non-renewal, material change or
termination of coverage, Contractor shall provide a replacement Certificate of Insurance
and applicable endorsements to City. City shall have the option to suspend Contractor's
performance should there be a lapse in coverage at any time during this contract. Failure
to provide and to maintain the required insurance shall constitute a material breach of this
contract.
F. In addition to any other remedies the City may have upon Contractor's failure to provide
and maintain any insurance or policy endorsements to the extent and within the time herein
required, the City shall have the right to order Contractor to stop work hereunder, and/or
withhold any payment(s) which become due to Contractor hereunder until Contractor
demonstrates compliance with the requirements hereof.
G. Nothing herein contained shall be construed as limiting in any way the extent to which
Contractor may be held responsible for payments of damages to persons or property
FY19 HOME Wayforward Page 47 of 55
resulting from Contractor's or its subcontractor's performance of the work covered under
this contract.
H. It is agreed that Contractor's insurance shall be deemed primary and non-contributory with
respect to any insurance or self insurance carried by the City of Corpus Christi for liability
arising out of operations under this contract.
I. It is understood and agreed that the insurance required is in addition to and separate from
any other obligation contained in this contract.
2019 Insurance Requirements
Ins. Req. Exhibit 3-N
Professional Services—Crime-Employee Dishonesty
09/05/2019 Risk Management—Legal Dept.
FY19 HOME Wayforward Page 48 of 55
0
Exhibit F
OTHER FEDERAL REQUIREMENTS
Pursuant to that HOME Grant Agreement ("HOME Agreement") dated October ,
2020, entered into between the City of Corpus Christi, a Texas Home Rule Municipal Corporation,
and Wayforward. A Texas non-profit corporation, , agreed that it shall comply with all federal,
state,and local laws, rules,and regulations applicable to the activities,services and performances
rendered, as noted in said HOME Agreement, including, but not limited to, the laws, rules, and
the regulations specified in Sections I through V of this Exhibit.
I. CIVIL RIGHTS
• The Fair Housing Act (42 U.S.C. Sections 3601-20) and implementing regulations at
24 CFR Part 100; Executive Order 11063, as amended by Executive Order 12259 (3
CFR, 1958-1963 Comp., p. 652 and 3 CFR, 1980 Comp., p. 307) (Equal Opportunity
in Housing) and implementing regulations at 24 CFR Part 107; and Title VI of the Civil
Rights Act of 1964 (42 U.S.C. 2000ed) (Nondiscrimination in Federally Assisted
Programs) and implementing regulations issued at 24 CFR Part 1, Nondiscrimination
Provisions of 92.350;
• Executive Order 11063, as amended by Executive Order 12259, and 24 CFR Part 107,
"Nondiscrimination and Equal Opportunity in Housing under Executive Order
10063." Failure or refusal to comply with the requirements of Executive Order
11063 or 24 CFR Part 107 shall be a proper basis for the imposition of sanctions
specified in 24 CFR Part 107.60;
• The prohibitions against discrimination on the basis of age under the Age
Discrimination Act of 1975 (42 U.S.C. Sections 6101-07) and implementing
regulations at 24 CFR Part 146, and the prohibitions against discrimination against
handicapped individuals under Section 504 of the Rehabilitation Act of 1973 (29
U.S.C. Sec. 794) and implementing regulations at 24 CFR Part 8;
• The requirements of Executive Order 11246 (3 CFR, 1964-65, Comp., p. 339) (Equal
Opportunity) and the implementing regulations at 24 CFR Part 8;
• The requirements of Executive Orders 11625 and 12432 (concerning Minority
Business Enterprise), and 12138 (concerning Women's Business Enterprise
consistent with HUD's responsibilities under these Orders. Each applicant must
make efforts to encourage the use of minority and women's business enterprises in
connection with HOME funded activities. Wayforward, et al, must prescribe
procedures acceptable to the City of Corpus Christi to establish activities to ensure
the inclusion,to the maximum extent possible of minorities and women and entities
owned by minorities and women. Wayforward, et al, will be required to identify
contracts which have been bid by minority owned, women owned, and/or small
disadvantaged businesses;
FY19 HOME Wayforward Page 49 of 55
• The Age Discrimination Act of 1975 (42 U.S.C. Sections 6101 et seq.); and
• Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. Sec. 794) and
"Nondiscrimination Based on Handicap in Federally-Assisted Programs and
Activities of the Department of Housing and Urban Development," 24 CFR Part 8.
By signing the agreement between the City of Corpus Christi and Wayforward, et al,
understands and agrees that the activities funded herein shall be operated in
accordance with 24 CFR Part 8 and the Architectural Barriers Act of 1968 (42 U.S.C.
Sec. 4151 et. seq.), including the use of a telecommunications device for deaf
persons (TDDs) or equally effective communication system.
• Nepotism -shall not employ in any paid capacity any person who is a member of the
immediate family of any person who is currently employed by who is a member of
a governing body. The term "member of immediate family" shall include: wife,
husband, son, daughter, mother, father, brother, sister, in-law, aunt, uncle, cousin,
nephew, niece, step-parent, step-child, half-brother and half-sister.
• Sectarian Activity- none of the performance rendered hereunder shall involve, and
no portion of the funds received hereunder shall be used, directly or indirectly, for
the construction, operation, maintenance or administration of any sectarian or
religious facility or activity, nor shall said performance rendered or funds received
be utilized so as to benefit, directly or indirectly, any such sectarian or religious
facility or activity.
II. LEAD-BASED PAINT
• Title IV of the Lead-Based Paint Poisoning Prevention Act(42 U.S.C.Sec.4831), including
Mold and other health hazards.
III. ENVIRONMENTAL STANDARDS
• Environmental Review Procedures for Title I Community Development Block Grant
Programs, 24 CFR Part 58, as amended in 47 Fed. Reg. 15750 (April 12, 1982);
• National Environmental Policy Act of 1969 (42 U.S.C. Sec. 4321 et. seq.) and 40 CFR
Parts 1500-1508;
• The National Historic Preservation Act of 1966 (16 U.S.C. Sec. 470 et. seq.) as
amended; particularly Section 106 (16 U.S.C. Sec. 470f);
• Executive Order 11593, Protection and Enhancement of the Cultural Environment,
May 13 1971 (36 Fed. Reg. 8921), particularly Section 2(c);
FY19 HOME Wayforward Page 50 of 55
• The Reservoir Salvage Act of 1960 (16 U.S.C. Sec. 469 et seq.), particularly Section 3
(16 U.S.C. Sec. 469a-1), as amended by the Archeological and Historic Preservation
Act of 1974;
• Flood Disaster Protection Act of 1973, (42 U.S.C. Sec. 4001 et. seq.) as amended,
particularly Sections 102(a) and 202(a) [(42 U.S.C. Sec. 4012a (a) and Sec. 4106(a)];
• Executive Order 19988, Floodplain Management, May 24, 1977 (42 Fed. Reg.
26951), particularly Section 2(a);
• Executive Order 11990, Protection of Wetlands, May 24, 1977 (42 Fed. Reg. 26961),
particularly Sections 2 and 5;
• The Coastal Zone Management Act of 1972(16 U.S.C.Sec. 1451 et seq.)as amended,
particularly Sections 307(c) and (d) [(16 U.S.C. Sections 1456 (c) and (d)];
• The Safe Drinking Water Act of 1974 (42 U.S.C. Sec. 201.300(f) et seq.), and (21
11 U.S.C. Sec. 349) as amended, particularly Section 1424(e) [(42 U.S.C. Sections 300h-
303(e)];
• The Endangered Species Act of 1973, (16 U.S.C. Sec. 1531 et seq.) as amended,
particularly Section 7 (16 U.S.C. Sec. 1536);
• The Wild and Scenic Rivers Act of 1968, (16 U.S.C. Sec. 1271 et seq.) as amended,
particularly Sections 7(b) and (c) [(16 U.S.C. Sections 1278(b) and (c)];
• The Clean Air Act (41 U.S.C. Sec. 7401 et seq.) as amended, particularly Sections
176(c) and (d)); and
• Farmlands Protection and Policy Act of 1981, (7 U.S.C. Sec. 4201 et seq.)
• 24 CFR Part 51, Environmental Criteria and Standards.
IV. RELOCATION AND ACQUISITION
• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of
1970 (42 U.S.C. Sec.4601 et.seq.),49 CFR Part 24, and 24 CFR Section 570.496a [(55
Fed. Reg. 29309 (July 18, 1990)].
V. APPLICABLE HOME PROGRAM PROVISIONS
HOME Designated Units: 4
FY19 HOME Wayforward Page 51 of 55
§92.250 Maximum per-unit subsidy amount, underwriting, and subsidy layering.
§92.251 Property standards.
§92.252 Qualification as affordable housing: Rental housing.
§92.253 Tenant protections and selection.
§92.257 Faith-based activities.
§92.350 Other Federal requirements and nondiscrimination.
§92.351 Affirmative marketing; minority outreach program.
§92.352 Environmental review.
§92.353 Displacement, relocation, and acquisition.
Must have a Property Manager with at least one-year experience in managing
Section 8 rental property.
All other applicable HUD, HOME, federal, state and local regulations.
Project Name: Fish Pond at Corpus Christi HOME FY2019
I
FY19 HOME Wayforward Page 52 of 55
Exhibit G
f ,k .411
i ; !:4,-A,,\
__,,yi
ti rte.•-,d ?: .a
: '- tkjg2
Grant Monitoring Department
Community Development Block Grants
U.S.Department of Housing and Urban Development
CERTIFICATION REGARDING LOBBYING
CERTIFICATION FOR CONTRACTS, GRANTS, LOANS,
AND COOPERATIVE AGREEMENTS
The undersigned certifies,to the best of his or her knowledge and belief,that
(1) No federal appropriated funds have been paid or will be paid,by or on behalf of the undersigned,to any
person for influencing or attempting to influence an officer or an employee of any agency,a member of
congress, an officer or employee of congress, or an employee of a member 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
(2) If any funds other than federal 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, a member of congress,an
officer or employee of congress, or an employee of a member of congress in connection with this federal
contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit with this a
Standard Form-11, "Disclosure Form to Report Lobbying,"in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be included in the award
documents for all subawards at all tiers(including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements)and that all subrecipients shall certify and disclose
accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction
was made or entered into. Submission of this certification is a prerequisite for making or entering into this
transaction imposed by Section 1352, Title 31, U. S. Code.Any person who fails to file the required
certification shall be subject to a civiI penalty of not less than$10,000 and not more than$100,000 for each
such failure.
11
I 5f" / Cii207.1)
Signature Date
I
L2)
Scott Frazier, President
Print Name of Authorized Individual
WayForward
Organization Name
S'
I
Exhibit H
FY2020 Rents for All Bedroom Sizes for Corpus Christi, TX HUD FMR Area
PROGRAM EFFICIENCY 1 BR 2 BR 3 BR 4 BR 5 BR 6 BR
LOW HOME RENT LIMIT 583 625 750 866 966 1,066 1,165
HIGH HOME RENT LIMIT 739 789 953 1,092 1,199 1,304 1,410
For Information Only:
FAIR MARKET RENT 744 789 999 1,336 1,553 1,786 2,019
a
50% RENT LIMIT 583 625 750 866 966 1,066 1,165
65% RENT LIMIT 739 793 953 1,092 1,199 1,304 1,410
The FMRs for unit sizes larger than four bedrooms are calculated by adding 15 percent to the
four-bedroom FMR, for each extra bedroom. For example, the FMR for a five-bedroom unit is
1.15 times the four-bedroom FMR, and the FMR for a six- bedroom unit is 1.30 times the four-
bedroom FMR. FMRs for single- room occupancy units are 0.75 times the zero-bedroom
(efficiency) FMR.
https://www.hudexchange.info/programs/home/home-rent-limits/
2020 Adjusted Home Income Limits
Corpus Christi, TX HUD FMR Area
1 2 3 4 5 6 7 8
PERSON PERSON PERSON PERSON PERSON PERSON PERSON PERSON
30% LIMITS 14,000 16,000 18,000 20,000 21,600 23,200 24,800 26,400
VERY LOW INCOME (50%)23,350 26,650 30,000 33,300 36,000 38,650 41,300 44,000
60% LIMITS 28,020 31,980 39,960 39,960 43,200 46,380 49,560 52,800
LOW INCOME (80%) 37,350 42,650 53,300 53,300 57,600 61,850 66,100 70,400
*Income limits are published at least annually by HUD.
https://www.hudexchange.info/programs/home/home-income-limits/
FY19 HOME Wayforward Page 55 of 55
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SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT ("Agreement") is entered into this 4th day of
November, 2020, by and among STERLING BANK, a Missouri banking corporation ("Senior
Lender") and the CITY OF CORPUS CHRISTI, TEXAS, a Texas Home Rule Municipal 1 j
Corporation("Subordinate Lender").
RECITALS
A. Fishpond Living At Corpus Christi, LP, a Texas limited partnership ("Borrower") is the
owner of certain land located in Nueces County, Texas, described in Exhibit A ("Land").
The Land is improved with a multifamily rental housing project("Improvements").
B. Senior Lender has made a loan to Borrower in the original principal amount of$11,300,000
("Senior Loan")upon the terms and conditions of a Construction Loan Agreement dated
as of the date hereof ("Construction Loan Agreement") among Senior Lender and
Borrower in connection with the Mortgaged Property. The Senior Loan is secured by a
Deed of Trust, Collateral Assignment of Rents, Security Agreement and Financing
Statement dated as of the date hereof("Senior Mortgage") encumbering the Land, the
Improvements and related personal and other property described and defined in the Senior
Mortgage as the"Mortgaged Property."
a
C. Wayforward,a Texas nonprofit corporation("Wayforward")has made or is making a loan
to Borrower in the original principal amount of$350,000.00 ("Subordinate Loan"). The
Subordinate Loan is or will be secured by a Deed of Trust, Security Agreement and
Financing Statement ("Subordinate Mortgage") encumbering all or a portion of the
Mortgaged Property. The Subordinate Mortgage and Wayforward's rights, title and 1
interest in the Subordinate Loan have been or are being assigned at closing on the
Subordinate Loan to the Subordinate Lender pursuant to that certain Collateral Assignment
of Loan Document and Liens dated as of the date of the Subordinate Mortgage.
D. The Senior Mortgage will be recorded in the land records of Nueces County, Texas
("Recording Office"). The Subordinate Mortgage will be recorded in the Recording
Office following the recording of the Senior Mortgage.
AGREEMENT
NOW, THEREFORE, for valuable consideration,the receipt and sufficiency of which are
acknowledged,the parties agree as follows:
1. Definitions. The following terms,when used in this Agreement(including,as appropriate,
when used in the above recitals),will have the following meanings.
"Bankruptcy Proceeding" means any bankruptcy, reorganization, insolvency,
composition, restructuring, dissolution, liquidation, receivership, assignment for the
1
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benefit of creditors, or custodianship action or proceeding under any federal or state law
with respect to Borrower, any guarantor of any of the Senior Indebtedness, any of their
respective properties, or any of their respective partners, members, officers, directors, or
shareholders.
"Borrower" means all persons or entities identified as "Borrower" in the first Recital of
this Agreement,together with their successors and assigns, and any other person or entity
who acquires title to the Mortgaged Property after the date of this Agreement; provided
that the term"Borrower"will not include Senior Lender if Senior Lender acquires title to
the Mortgaged Property.
"Casualty" means the occurrence of damage to or loss of all or any portion of the
Mortgaged Property by fire or other casualty.
"Condemnation"shall have the meaning set forth in the Construction Loan Agreement.
"Enforcement Action"means any of the following actions taken by or at the direction of
Subordinate Lender: the acceleration of all or any part of the Subordinate Indebtedness,
the advertising of or commencement of any foreclosure or trustee's sale proceedings, the
exercise of any power of sale,the acceptance of a deed or assignment in lieu of foreclosure
or sale,the collecting of Rents,the obtaining of or seeking of the appointment of a receiver,
the seeking of default interest,the taking of possession or control of any of the Mortgaged
Property, the commencement of any suit or other legal, administrative, or arbitration
proceeding based upon the Subordinate Note or any other of the Subordinate Loan
Documents, the exercising of any banker's lien or rights of set-off or recoupment, or the
exercise of any other remedial action against Borrower, any other party liable for any of
the Subordinate Indebtedness or obligated under any of the Subordinate Loan Documents,
or the Mortgaged Property.
"Enforcement Action Notice"means a written Notice from Subordinate Lender to Senior
Lender, given following one or more Subordinate Mortgage Default(s) and the expiration
of any Notice or cure periods provided for such Subordinate Mortgage Default(s)in the the
Subordinate Loan Documents, setting forth in reasonable detail the Subordinate Mortgage '
Default(s)and the Enforcement Actions proposed to be taken by Subordinate Lender.
"Leases"shall have the meaning set forth in the Construction Loan Agreement.
"Loss Proceeds"means all monies received or to be received under any insurance policy,
from any condemning authority,or from any other source,as a result or any Condemnation
or Casualty.
"Notice"is defined in Section 6(d).
"Rents" shall have the meaning set forth in the Construction Loan Agreement.
"Senior Indebtedness"means the"Indebtedness"of Borrower as evidenced by the Senior
Loan Documents.
2
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1
"Senior Loan Agreement" means the Construction Loan Agreement between Senior
Lender and Borrower dated as of the date hereof.
"Senior Loan Documents" means the"Loan Documents" as defined in the Construction
Loan Agreement.
"Senior Mortgage Default"means any act, failure to act, event, condition, or occurrence
which constitutes,or which with the giving of Notice or the passage of time,or both,would
constitute,an"Event of Default"as defined in the Construction Loan Agreement.
"Senior Mortgagee" means the person or entity named as such in the first paragraph of
this Agreement. When any other person or entity becomes the legal holder of the Senior
Note, such other person or entity automatically will become Senior Mortgagee.
"Senior Note"means the Note as defined in the Construction Loan Agreement.
"Subordinate Indebtedness" means all sums evidenced or secured or guaranteed by, or
otherwise due and payable to Subordinate Lender pursuant to, the Subordinate Loan
Documents.
"Subordinate Lender"means the person or entity named as such in the first paragraph of
this Agreement and any other person or entity who becomes the legal holder of the
Subordinate Note after the date of this Agreement.
"Subordinate Loan Documents"means the Subordinate Mortgage,the Subordinate Note
and all other documents at any time evidencing, securing, guaranteeing, or otherwise
delivered in connection with the Subordinate Indebtedness, as the same may be amended
from time to time.
"Subordinate Mortgage Default" means any act, failure to act, event, condition, or
occurrence which allows(but for any contrary provision of this Agreement),or which with
the giving of Notice or the passage of time, or both, would allow (but for any contrary
provision of this Agreement), Subordinate Lender to take an Enforcement Action.
"Subordinate Note" means the promissory note or other evidence of the Subordinate
Indebtedness referred to in the Subordinate Mortgage and any replacement of the
Subordinate Note
1. Subordination of Subordinate Indebtedness.
(a) The Subordinate Indebtedness is and will at all times continue to be subject and
subordinate in right of payment to the prior payment in full of the Senior
Indebtedness.
(b) Until the occurrence of a Senior Mortgage Default, Subordinate Lender will be
entitled to retain for its own account all payments made on account of the principal
of and interest on the Subordinate Indebtedness in accordance with the
requirements of the Subordinate Loan Documents; provided no such payment is
3
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made more than ten (10) days in advance of its due date. However, immediately
upon Subordinate Lender's receipt of Notice or actual knowledge of a Senior
Mortgage Default, Subordinate Lender will not accept any payments on account of
the Subordinate Indebtedness,and the provisions of Section 2(c)of this Agreement
will apply. Subordinate Lender acknowledges that a Subordinate Mortgage Default
constitutes a Senior Mortgage Default. Accordingly, upon the occurrence of a
Subordinate Mortgage Default, Subordinate Lender will be deemed to have actual
knowledge of a Senior Mortgage Default.
(c) If(i)Subordinate Lender receives any payment,property,or asset of any kind or in
any form on account of the Subordinate Indebtedness(including any proceeds from
any Enforcement Action) after a Senior Mortgage Default of which Subordinate
Lender has actual knowledge (or is deemed to have actual knowledge as provided 1
in 2(b) above) or has been given Notice, or (ii) Subordinate Lender receives,
voluntarily or involuntarily, by operation of law or otherwise, any payment,
property, or asset in or in connection with any Bankruptcy Proceeding, such
payment, property, or asset will be received and held in trust for Senior Lender.
Subordinate Lender will promptly remit, in kind,by warrant of the State of Texas,
all such payments, properties, and assets to Senior Lender Lender. Senior Lender
will apply any payment, asset, or property so received from Subordinate Lender to
the Senior Indebtedness in such order,amount(with respect to any asset or property
other than immediately available funds), and manner as Senior Lender determines
in its sole and absolute discretion.
(d) Without limiting the complete subordination of the Subordinate Indebtedness to the
payment in full of the Senior Indebtedness, in any Bankruptcy Proceeding, upon
any payment or distribution(whether in cash,property, securities, or otherwise)to
creditors (i) the Senior Indebtedness will first be paid in full in cash before
Subordinate Lender will be entitled to receive any payment or other distribution on
account of or in respect of the Subordinate Indebtedness, and (ii) until all of the
Senior Indebtedness is paid in full in cash, any payment or distribution to which
Subordinate Lender would be entitled but for this Agreement (whether in cash,
property, or other assets)will be made to Senior Lender.
(e) The subordination of the Subordinate Indebtedness will continue if any payment
under the Senior Loan Documents (whether by or on behalf of Borrower, as
proceeds of security or enforcement of any right of set-off or otherwise) is for any
reason repaid or returned to Borrower or its insolvent estate, or avoided, set aside
or required to be paid to Borrower, a trustee, receiver or other similar party under
any bankruptcy, insolvency, receivership or similar law. In such event, any or all
of the Senior Indebtedness originally intended to be satisfied will be deemed to be
reinstated and outstanding to the extent of any repayment, return, or other action,
as if such payment on account of the Senior Indebtedness had not been made.
2. Subordination of Subordinate Loan Documents.
4
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(a) Each of the Subordinate Loan Documents is, and will at all times remain, subject
and subordinate in all respects to the liens,terms,covenants,conditions,operations,
and effects of each of the Senior Loan Documents.
(b) The subordination of the Subordinate Loan Documents and of the Subordinate
Indebtedness will apply and continue notwithstanding (i) the actual date and time
of execution, delivery, recording, filing or perfection of each of the Senior Loan
Documents and of each of the Subordinate Loan Documents, and (ii) the
availability of any collateral to Senior Lender, including the availability of any
collateral other than the Mortgaged Property.
(c) By reason of, and without in any way limiting, the full subordination of the
Subordinate Indebtedness and the Subordinate Loan Documents provided for in this
Agreement,all rights and claims of Subordinate Lender under the Subordinate Loan
Documents in or to all or any portion of the Mortgaged Property are expressly
subject and subordinate in all respects to the rights and claims of Senior Lender
under the Senior Loan Documents in or to the Mortgaged Property.
(d) If Subordinate Lender, by indemnification, subrogation or otherwise, acquires any
lien, estate, right or other interest in any of the Mortgaged Property, then that lien,
estate, right or other interest will be fully subject and subordinate to the receipt by
Senior Lender of payment in full of the Senior Indebtedness,and to the Senior Loan
Documents,to the same extent as the Subordinate Indebtedness and the Subordinate
Loan Documents are subordinate pursuant to this Agreement,to the extent allowed
by law.
3. Additional Representations and Covenants.
(a) Subordinate Lender represents and warrants that each of the following is true:
(i) Subordinate Lender is now the owner and holder of its respective
Subordinate Loan Documents.
(ii) The Subordinate Loan Documents are now in full force and effect.
(iii) The Subordinate Loan Documents have not been modified or amended.
(iv) No Subordinate Mortgage Default has occurred.
(v) The current unpaid principal balance of the Subordinate Indebtedness is
collectively$14,000,000.00. ,
(vi) No scheduled monthly payments under the Subordinate Note have been or
will be required to be prepaid.
(vii) Except for the rights of tenants and third parties under Section 2306.185 of
the Texas Governmental Code, none of the rights of Subordinate Lender
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•
under any of the Subordinate Loan Documents are subject to the rights of
any third parties,by way of subrogation,indemnification or otherwise.
(b) Without the prior written consent of Senior Lender in each instance, Subordinate
Lender will not do,if and to the extent allowed by law,any of the following:
(i) Unless required by law, amend, amend, modify, waive, extend, renew, or
replace any provision of any of the Subordinate Loan Documents.
(ii) Unless required by law,pledge,assign,transfer,convey,or sell any interest
in the Subordinate Indebtedness or any of the Subordinate Loan Documents.
(iii) Accept any payment on account of the Subordinate Indebtedness other than
a regularly scheduled payment of interest or principal and interest made not
earlier than ten(10)days prior to its due date, or as expressly authorized in
Section 4(i)below.
(iv) Unless required by law, take any action which has the effect of increasing
the Subordinate Indebtedness.
(v) Unless required by law, appear in, defend or bring any action to protect
Subordinate Lender's interest in the Mortgaged Property.
3
(vi) Unless required by law, take any action concerning environmental matters
affecting the Mortgaged Property.
(c) Subordinate Lender will deliver to Senior Lender a copy of each Notice relating to
a Subordinate Mortgage Default received or delivered by Subordinate Lender
pursuant to the Subordinate Loan Documents or in connection with the Subordinate
Indebtedness,simultaneously with Subordinate Lender's delivery or receipt of such
Notice. Senior Lender will deliver to Subordinate Lender in the manner required
in Section 5(b) a copy of each Notice of a Senior Mortgage Default delivered to
Borrower by Senior Lender. Neither giving nor failing to give a Notice to Senior
Lender or Subordinate Lender pursuant to this Section 4(c) will affect the validity
of any Notice given by Senior Lender or Subordinate Lender to Borrower, as
between Borrower and such of Senior Lender or Subordinate Lender as provided
the Notice to Borrower.
(d) Without the prior written consent of Senior Lender in each instance, Subordinate
Lender will not commence, or join with any other creditor in commencing, any
Bankruptcy Proceeding. In the event of a Bankruptcy Proceeding, Subordinate
Lender will not vote affirmatively in favor of any plan of reorganization or
liquidation unless Senior Lender has also voted affirmatively in favor of such plan,
except to the extent expressly required by law. In the event of any Bankruptcy
Proceeding, Subordinate Lender will not contest the continued accrual of interest
on the Senior Indebtedness, in accordance with and at the rates specified in the
Senior Loan Documents, both for periods before and for periods after the
commencement of such Bankruptcy Proceedings.
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(e) Whenever the Subordinate Loan Documents give Subordinate Lender approval or
consent rights with respect to any matter, and a right of approval or consent with
regard to the same or substantially the same matter is also granted to Senior Lender
pursuant to the Senior Loan Documents or otherwise, Senior Lender's approval or
consent or failure to approve or consent, as the case may be, will be binding on
Subordinate Lender. None of the other provisions of this Section 4 are intended to
be in any way in limitation of the provisions of this Section 4(e).
(f) All requirements pertaining to insurance under the Subordinate Loan Documents
(including requirements relating to amounts and types of coverages, deductibles
and special endorsements)will be deemed satisfied if Borrower complies with the
insurance requirements under the Senior Loan Documents and of Senior Lender.
All original policies of insurance required pursuant to the Senior Loan Documents
will be held by Senior Lender. Nothing in this Section 4(f) will preclude
Subordinate Lender from requiring that it be named as a mortgagee and loss payee,
as its interest may appear, under all policies of property damage insurance
maintained by Borrower with respect to the Mortgaged Property, provided such
action does not affect the priority of payment of Loss Proceeds,or that Subordinate
Lender be named as an additional insured under all policies of liability insurance
maintained by Borrower with respect to the Mortgaged Property.
(g) In the event of a Condemnation or a Casualty, all of the following provisions will
apply:
(i) The rights of Subordinate Lender(under the Subordinate Loan Documents
or otherwise) to participate in any proceeding or action relating to a
Condemnation or a Casualty, or to participate or join in any settlement of,
or to adjust, any claims resulting from a Condemnation or a Casualty, will fi
be and remain subordinate in all respects to Senior Lender's rights under
the Senior Loan Documents with respect thereto, and Subordinate Lender
will be bound by any settlement or adjustment of a claim resulting from a 1
Condemnation or a Casualty made by Senior Lender.
(ii) All Loss Proceeds will be applied either to payment of the costs and
expenses of restoration or to payment on account of the Senior
Indebtedness, as and in the manner determined by Senior Lender in its sole
discretion.
(iii) If Senior Lender applies or releases Loss Proceeds for the purposes of
restoration of the Mortgaged Property,then Subordinate Lender will release
for such purpose all of its right,title and interest,if any,in and to such Loss
Proceeds. If Senior Lender holds Loss Proceeds, or monitors the
disbursement thereof, Subordinate Lender will not do so. Nothing
contained in this Agreement will be deemed to require Senior Lender to act
for or on behalf of Subordinate Lender in connection with any restoration '
or to hold or monitor any Loss Proceeds in trust for or otherwise on behalf
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of Subordinate Lender, and all or any Loss Proceeds may be commingled
with any funds of Senior Lender.
(iv) If Senior Lender elects to apply Loss Proceeds to payment on account of •
the Senior Indebtedness,and if the application of such Loss Proceeds results
in the payment in full of the entire Senior Indebtedness,any remaining Loss
Proceeds held by Senior Lender will be paid to Subordinate Lender unless
another party has asserted a claim to the remaining Loss Proceeds.
(h) Subordinate Lender will enter into recognition and non-disturbance agreements
with all tenants under commercial or retail Leases, if any, to whom Senior Lender
has granted recognition and non-disturbance, on the same terms and conditions
given by Senior Lender to the extent allowed by applicable law.
(i) Except as provided in this Section 4(i),and regardless of any contrary provision in
the Subordinate Loan Documents, Subordinate Lender will not collect payments
for the purpose of escrowing for any cost or expense related to the Mortgaged
Property or for any portion of the Subordinate Indebtedness. However, if Senior
Lender is not collecting escrow payments for one or more impositions,Subordinate
Lender may collect escrow payments for such impositions; provided that all
payments so collected by Subordinate Lender will be held in trust by Subordinate
Lender to be applied only to the payment of such impositions.
(j) Within ten (10) days after request by Senior Lender, Subordinate Lender will
furnish Senior Lender with a statement, duly acknowledged and certified setting L
forth the then-current amount and terms of the Subordinate Indebtedness,
confirming that there exists no default under the Subordinate Loan Documents (or
describing any default that does exist),and certifying to such other information with
respect to the Subordinate Indebtedness as Senior Lender may request.
(k) Senior Lender may amend, waive, postpone, extend, renew, replace, reduce or
otherwise modify any provision of any of the Senior Loan Documents without the
necessity of obtaining the consent of or providing Notice to Subordinate Lender,
and without affecting any of the provisions of this Agreement. Notwithstanding
the foregoing, Senior Lender may not modify any provision of the Senior Loan
Documents that increases the Senior Indebtedness, except for increases in the
Senior Indebtedness that result from advances made by Senior Lender to protect
the security or lien priority of Senior Lender under the Senior Loan Documents or
to cure defaults under the Subordinate Loan Documents.
4. Default Under Loan Documents.
(a) For a period of ninety (90) days following delivery to Senior Lender of an
Enforcement Action Notice given by the Subordinate Lender as a consequence of
the Subordinate Mortgage Default, Senior Lender will have the right, but not the
obligation, to cure any Subordinate Mortgage Default, provided that if such
Subordinate Mortgage Default is a non-monetary default and is not capable of being
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cured within such ninety (90) days and Senior Lender has commenced and is
diligently pursuing such cure to completion, Senior Lender will have such
additional period of time as may be required to cure such Subordinate Mortgage
Default or until such time, if ever, as Senior Lender(i) discontinues its pursuit of
any cure and/or(ii)delivers to Subordinate Lender Senior Lender's written consent
to the Enforcement Action described in the Enforcement Action Notice given by F
the Subordinate Lender as a consequence of the Subordinate Mortgage Default.
Senior Lender will not be subrogated to the rights of Subordinate Lender under the
Subordinate Loan Documents by reason of Senior Lender having cured any
Subordinate Mortgage Default. However, Subordinate Lender acknowledges that
all amounts advanced or expended by Senior Lender in accordance with the Senior
Loan Documents or to cure a Subordinate Mortgage Default will be added to and
become a part of the Senior Indebtedness and will be secured by the lien of the
Senior Mortgage.
(b) Senior Lender will deliver to Subordinate Lender a copy of any Notice sent by
Senior Lender to Borrower of a Senior Mortgage Default within five (5) Business
Days of sending such Notice to Borrower. Failure of Senior Lender to send Notice
to Subordinate Lender will not prevent the exercise of Senior Lender's rights and
remedies under the Senior Loan Documents. Subordinate Lender will have the
right,but not the obligation,to cure any monetary Senior Mortgage Default within
thirty (30) days following the date of such Notice; provided, however, that Senior
Lender will be entitled during such thirty (30) days to continue to pursue its
remedies under the Senior Loan Documents.
Subordinate Lender may,within ninety (90) days after the date of the Notice, cure
a non-monetary Senior Mortgage Default if during such ninety (90) days ,
Subordinate Lender keeps current all payments required by the Senior Loan
Documents. If such a non-monetary Senior Mortgage Default creates an
unacceptable level of risk relative to the Mortgaged Property, or Senior Lender's
or secured position relative to the Mortgaged Property, as determined by Senior
Lender in its sole discretion,then during such ninety(90)days, Senior Lender may
exercise all available rights and remedies to protect and preserve the Mortgaged
Property and the Rents,revenues and other proceeds from the Mortgaged Property.
Subordinate Lender will not be subrogated to the rights of Senior Lender under the
Senior Loan Documents by reason of Subordinate Lender having cured any Senior
Mortgage Default. However, Senior Lender acknowledge that all amounts paid by
Subordinate Lender to Senior Lender to cure a Senior Mortgage Default will be
deemed to have been advanced by Subordinate Lender pursuant to, and will be
secured by the lien of,the Subordinate Mortgage.
(c) In the event of a Subordinate Mortgage Default, Subordinate Lender will not
commence any Enforcement Action until after the expiration of a period of ninety
(90)days after Subordinate Lender has delivered to Senior Lender an Enforcement
Action Notice with respect to such Enforcement Action (failure of the Senior
Lender to provide written consent to the Enforcement Action within such 90-day
period constitutes the Senior Lender's refusal of such consent). Subordinate Lender
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•
S
may not commence any other Enforcement Action, including any foreclosure
action under the Subordinate Loan Documents,until the delivery by Senior Lender
to Subordinate Lender of Senior Lender's written consent to such Enforcement
Action by Subordinate Lender. Subordinate Lender acknowledges that Senior
Lender may grant or refuse consent to Subordinate Lender's Enforcement Action
in Senior Lender's sole and absolute discretion. Subordinate Lender acknowledges
that Senior Lender may grant or refuse consent to Subordinate Lender's
Enforcement Action in Senior Lender's sole and absolute discretion. At the
expiration of such ninety (90) day period or such longer period as provided in
Section 5(a) and, subject to Senior Lender's right to cure set forth in Section 5(a),
Subordinate Lender may commence any Enforcement Action. Any Enforcement
Action on the part of Subordinate Lender, will be subject to the provisions of this
Agreement. Subordinate Lender acknowledges that Subordinate Lender has
received a substantial benefit from Senior Lender having granted its consent to the .
Subordinate Mortgage,and that Senior Lender would not have granted such consent
without the inclusion of these provisions in this Agreement.
(d) Senior Lender may pursue all rights and remedies available to it under the Senior
Loan Documents,at law,or in equity,regardless of any Enforcement Action Notice
or Enforcement Action by Subordinate Lender. No action or failure to act on the
part of Senior Lender in the event of a Subordinate Mortgage Default or
commencement of an Enforcement Action will constitute a waiver on the part of
Senior Lender of any provision of the Senior Loan Documents or this Agreement.
(e) If the Enforcement Action taken by Subordinate Lender is the appointment of a
receiver for any of the Mortgaged Property, all of the Rents, issues, profits and
proceeds collected by the receiver will be paid and applied by the receiver solely to
and for the benefit of Senior Lender until the Senior Indebtedness will have been
paid in full.
(f) Subordinate Lender consents to the release by Senior Lender of all or any portion
of the Mortgaged Property from the lien, operation, and effect of the Senior Loan
Documents. Subordinate Lender waives to the fullest extent permitted by law, all
equitable or other rights it may have(i) in connection with the release of all or any
portion of the Mortgaged Property from the lien, (ii)to require the separate sale of
any portion of the Mortgaged Property, (iii)to require Senior Lender to exhaust its
remedies against all or any portion of the Mortgaged Property or any combination
of portions of the Mortgaged Property or any other collateral for the Senior
Indebtedness,or(i)to require Senior Lender to proceed against Borrower,any other
party that may be liable for any of the Senior Indebtedness (including any general
partner of Borrower if Borrower is a partnership), all or any portion of the
Mortgaged Property or combination of portions of the Mortgaged Property or any
other collateral, before proceeding against all or such portions or combination of
portions of the Mortgaged Property as Senior Lender determines.
(g) If any party other than Borrower(including Senior Lender)acquires title to any of
the Mortgaged Property pursuant to a foreclosure of, or trustee's sale or other
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•
exercise of any power of sale under,the Senior Mortgage conducted in accordance
with applicable law,the lien,operation,and effect of the Subordinate Mortgage and
other Subordinate Loan Documents automatically will terminate with respect to
such Mortgaged Property.
5. Miscellaneous Provisions.
(a) If there is any conflict or inconsistency between the terms of the Subordinate Loan
Documents and the terms of this Agreement,then the terms of this Agreement will
control. •
(b) This Agreement will be binding upon and will inure to the benefit of the respective
legal successors and permitted assigns of the parties hereto. No other party will be
entitled to any benefits hereunder,whether as a third-party beneficiary or otherwise.
(c) This Agreement does not constitute an approval by Senior Lender of the terms of
the Subordinate Loan Documents.
(d) Each Notice, request, demand, consent, approval or other communication
(collectively, "Notices," and singly, a"Notice")which is required or permitted to
be given pursuant to this Agreement,including but not limited to any notice relating
to a Subordinate Mortgage Default, but specifically excluding compliance
monitoring notices and administrative enforcement action notices pursuant to
Chapter 2306 of the Texas Government Code and its implementing regulations
except as provided in 4(c) above, will be in writing and will be deemed to have
been duly and sufficiently given if(i) personally delivered with proof of delivery
(any Notice so delivered will be deemed to have been received at the time so
delivered), or (ii) sent by a national overnight courier service (such as FedEx) $
designating earliest available delivery (any Notice so delivered will be deemed to
have been received on the next Business Day following receipt by the courier), or
(iii) sent by United States registered or certified mail, return receipt requested,
postage prepaid, at a post office regularly maintained by the United States Postal
Service (any Notice so sent will be deemed to have been received on the date of
delivery as confirmed by the return receipt), addressed to the respective parties as
follows:
(i) Notices intended for Senior Lender will be addressed to:
Sterling Bank
50 S. Bemiston Ave.
Clayton, Missouri 63105 3
Attn: Phil Minden ?
(ii) Notices intended for Subordinate Lender will be addressed to:
City of Corpus Christi, Texas
P.O. Box 9277
Corpus Christi,Texas 78469-9277
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Attn: Director, Grant Monitoring Department
Any party, by Notice given pursuant to this Section, may change the person or
persons and/or address or addresses, or designate an additional person or persons
or an additional address or addresses, for its Notices, but Notice of a change of
address will only be effective upon receipt. Neither party will refuse or reject
delivery of any Notice given in accordance with this Section.
(e) Nothing in this Agreement or in any of the Senior Loan Documents or Subordinate
Loan Documents will be deemed to constitute Senior Lender as a joint venturer or
partner of Subordinate Lender.
(f) Upon Notice from Senior Lender,Subordinate Lender will execute and deliver such
additional instruments and documents, and will take such actions, as are required
by Senior Lender in order to further evidence or implement the provisions and
intent of this Agreement,to the extent allowed by law.
(g) This Agreement will be governed by the laws of the State in which the Land is
located.
(h) If any one or more of the provisions contained in this Agreement,or any application
of any such provisions, is invalid, illegal, or unenforceable in any respect, the
validity, legality, enforceability, and application of the remaining provisions
contained in this Agreement will not in any way be affected or impaired.
(i) The term of this Agreement will commence on the date of this Agreement and will
continue until the earliest to occur of the following events: (i) the payment of all
of the Senior Indebtedness; provided that this Agreement will be reinstated in the
event any payment on account of the Senior Indebtedness is avoided, set aside,
rescinded or repaid by Senior Lender as described in Section 2(e) of this
Agreement, (ii) the payment of all of the Subordinate Indebtedness other than by
reason of payments which Subordinate Lender is obligated to remit to Senior
Lender pursuant to this Agreement, (iii) the acquisition by Senior Lender or by a
third party purchaser of title to the Mortgaged Property pursuant to a foreclosure
of,deed in lieu of foreclosure, or trustee's sale or other exercise of a power of sale
or similar disposition under the Senior Mortgage; or (iv) with the prior written •
consent of Senior Lender, without limiting the provisions of Section 5(d), the
acquisition by Subordinate Lender of title to the Mortgaged Property subject to the
Senior Mortgage pursuant to a foreclosure, or a deed in lieu of foreclosure, of(or
the exercise of a power of sale under)the Subordinate Mortgage.
(j) No failure or delay on the part of any party to this Agreement in exercising any
right,power,or remedy under this Agreement will operate as a waiver of such right,
power, or remedy, nor will any single or partial exercise of any such right, power
or remedy preclude any other or further exercise of such right,power,or remedy or
the exercise of any other right,power or remedy under this Agreement.
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(k) Each party to this Agreement acknowledges that if any party fails to comply with
its obligations under this Agreement,the other parties will have all rights available
at law and in equity, including the right to obtain specific performance of the
obligations of such defaulting party and injunctive relief.
(1) Nothing in this Agreement is intended,nor will it be construed,to in any way limit
the exercise by Subordinate Lender of its governmental powers (including police,
regulatory and taxing powers)with respect to Borrower or the Mortgaged Property
to the same extent as if it were not a party to this Agreement or the transactions
contemplated by this Agreement.
(m) This Agreement shall inure to the benefit of any subsequent holder of the Senior
Indebtedness.
(n) This Agreement may be amended, changed, modified, altered or terminated only
by a written instrument or written instruments signed by the parties to this
Agreement.
(o) This Agreement may be executed in two or more counterparts, each of which will
be deemed an original but all of which together will constitute one and the same
instrument.
(p) This Agreement will be recorded in the Recording Office contemporaneous with
the origination of the Senior Loan.
[SIGNATURE AND ACKNOWLEDGMENT PAGES FOLLOW]
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IN WITNESS WHEREOF,the parties have duly executed this Agreement as of the day and
year first above written.
SENIOR LENDER:
STERLING BANK,a Missouri banking
corporation
•By:
P clip If den
•xecutive Vice President
ACKNOWLEDGMENT
STATE OF MISSOURI
COUNTY OF ST. LOUIS
This instrument was acknowledged before me on N C er 361 , 2020 by Philip Minden, the
Executive Vice President of STERLING BANK,a Missouri banking corporation,on behalf of said
corporation.
G6--oLt,c-
(Notary Public)
My commission expires: 0--0 -200cf
Km
n
►may� ty 1�
3T
ism
My Commsslob Expi ss:10-000.2024
5
A3�
3
111
2020 -2020050420 11/04/2020 3:26PM Page 15 of 18
SUBORDINATE LENDER:
ATTEST: CITY OF CORPUS CHRISTI,TEXASd#14 ,
1.:J By: Jig /.7 i/17
R•becca Huerta, City Secretary Keith Sel an, Assistant City Manager
sr council
Ian ACKNOWLEDGMENT
SEGR!TARV
STATE OF TEXAS
COUNTY OF )
This instrument was acknowledged before me on i\h { P( ,2020 by Keith Selman, the
Assistant City Manager of the CITY OF CORPUS CHRISTI,TEXAS, a Texas Home Rule
Corporation, on behalf of said corporation.
��Yr MARTHA VAZQUEZ
� MY Nosy fD#128028519
<`:`r Expires March 5 2022 otary Public)
My commission expires: \•-kt mil 5, a Q •
�—
t
APPROVED AS TO FORM: I
THIS,/r DAY OF Y 40 , - 120
44/141,
By:
Name: W. Kent Mcllyar
Assistant City Attorney
For Miles Risley, City Attorney
2020 -20200550420 11/04/2020 3:26PM Page 16 of 18
CONSENT OF BORROWER
Bo ower acknowledges receipt of a copy of this Subordination Agreement, dated
ji1 / lr ,202 by and between STERLING BANK,a Missouri banking corporation,and
the CITY OF CORPUS CHRISTI, TEXAS, a Texas Home Rule Municipal Corporation, and
consents to the agreement of the parties set forth in this Agreement.
BORROWER:
FISH POND LIVING AT CORPUS CHRISTI,
LP, a Texas limited partnership
By: FishPond Corpus Christi Manager, LLC, a
Texas limited liability company, its General
Partner
By: /AY/
avi• M. Fourni-
Managing Me .er
ACKNOWLEDGEMENT
STATE OFTQ.,1Z O )
) ss:
COUNTY OIF-Y.U.S )
On o\It,t/�b er 3'� , 2020, before me, GIA.K.L-_ , a
NotaryPublicpersonallyappeared David M. Fournier, who proved to me on the basis of
� PP
satisfactory evidence to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same as the Managing Member of FishPond Corpus
Christi Manager, LLC the General Partner of FISH POND LIVING AT CORPUS CHRISTI, LP,
a Texas limited partnership,and that by his/her signature on the instrument the person,or the entity
upon behalf of which the person acted,executed the instrument.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in
the County and State aforesaid, the day and year first above written.
WITNESS my hand and official seal. '
(SEAL)
• (Signature of Notary)
My Commission Expires:
"14'47 LAURA ANN GUNN
3:°.' ¢ Notary Public,State of Texas
7%.&.., .145i+ Comm.Expires 07-30-2021
'a;,?Ii‘V Notary ID 126958292
I
2020 -2020050420 11/04/2020 3:26PM Page 17 of 18
EXHIBIT A
PROPERTY DESCRIPTION
FISHPOND AT BAY TERRACE BLOCK 5, LOT 23, PUD, an addition to the City of Corpus Christi,
Texas,Nueces County,Texas,as per map or plat recorded in Volume 69, Page 453-454,Map Records of
Nueces County,Texas.
i
A
I
•
M
9
2020-2020050420 11104/2020 3:26 PM Page 18 of 18
Nueces County
Kara Sands
Nueces County
Clerk
Instrument Number: 2020050420
eRecording - Real Property
SUBORDINATION
Recorded On: November 04, 2020 03:26 PM Number of Pages: 18
" Examined and Charged as Follows: "
Total Recording: $85.00
JNzv co�'�,1 STATE OF TEXAS
00 9� �4 NUECES COUNTY
<<,�� I hereby certify that this Instrument was FILED In the File Number sequence on the date/time
,,rheF s �5, Kara Sands
, hereon,and was duly RECORDED in the Official Records of Nueces County,Texas.
, AUEC
,`"`�''_ Nueces County Clerk J�r n �CZ�IWy
Nueces County, TX C `�'`-'
*********** THIS PAGE IS PART OF THE INSTRUMENT***********
Any provision herein which restricts the Safe, Rental or use of the described REAL PROPERTY
because of color or race is invalid and unenforceable under federal law.
File Information: Record and Return To:
Document Number: 2020050420 CSC
Receipt Number: 20201104000148 2411 Centerville Road, Suite 400
Recorded Date/Time: November 04, 2020 03:26 PM
User: Lisa C Wilmington DE
Station: CLERK02
2020 -2020050418 11/04/2020 3:26PM Page 1 of 21
i
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE
OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT
TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC
RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
DEED OF TRUST
Date: To be effective as of November 1, 2020
Borrower: FishPond Living at Corpus Christi, LP, a Texas limited partnership
Borrower's Mailing Address: 500 W 2nd St., Suite 1900#29
Austin,TX 78701
Trustee: MILES RISLEY, together with his successors as City Attorney
Trustee's Mailing Address: P. O. Box 9277
Corpus Christi, TX 78469-9277
Lender: WayForward,
a Texas nonprofit corporation
Lender's Mailing Address: 9702 Angelwylde Dr.
Austin,TX 78733
Promissory Note (hereinafter referred to as "Note"):
Date: As of even date hereof.
Amount: Three Hundred Fifty Thousand and 00/100 Dollars ($350,000.00)
Maker: FishPond Living at Corpus Christi, LP, a Texas limited partnership
Payee: Lender
Final Maturity Date: As provided in the Note.
Terms of Payment: As provided in the Note.
WayForward HOME DOT
Deed of Trust--Page 1
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE
OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT
TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC
RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
DEED OF TRUST
Date: To be effective as of November 1, 2020
Borrower: FishPond Living at Corpus Christi, LP, a Texas limited partnership
Borrower's Mailing Address: 500 W 2' St., Suite 1900#29
Austin, TX 78701
Trustee: MILES RISLEY, together with his successors as City Attorney
Trustee's Mailing Address: P. 0. Box 9277
Corpus Christi, TX 78469-9277
Lender: WayForward,
a Texas nonprofit corporation
Lender's Mailing Address: 9702 Angelwylde Dr.
Austin, TX 78733
Promissory Note (hereinafter referred to as "Note"):
Date: As of even date hereof.
Amount: Three Hundred Fifty Thousand and 00/100 Dollars ($350,000.00)
Maker: FishPond Living at Corpus Christi, LP, a Texas limited partnership
Payee: Lender
Final Maturity Date: As provided in the Note.
Terms of Payment: As provided in the Note.
WayForward HOME DOT
Deed of Trust-- Page 1
Property:
The land described on Exhibit A attached hereto and made a part hereof, together with
any improvements located or to be located on said land (collectively, the "Property").
Prior Liens:
Lender hereby approves of, and acknowledges and agrees that Borrower has or will
enter into, (a) documents evidencing, governing, and/or securing a $11,300,000.00
construction loan (the "Construction Loan Documents") from STERLING BANK, a
Missouri banking corporation ("Senior Lender"); (b) documents evidencing, governing,
and/or securing a $7,300,000.00 loan from Senior Lender (the "Permanent Loan
Documents," and together with the Construction Loan Documents and the Permanent
Loan Documents, the "Senior Loan Documents"); and that the lien secured by this Deed
of Trust (this "Deed of Trust") and the other Loan Documents (hereinafter defined), and
Lender's rights under this Deed of Trust and the other Loan Documents, will be and are
subordinate to those described in the Senior Loan Documents, as evidenced by (i) that
Subordination and Standstill Agreement dated as of even date herewith, executed by
and between Senior Lender, Borrower, and Lender (the "Sterling Subordination
Agreement"). Lender hereby agrees to subordinate its lien to those described in the
Wells Subordination Agreement and the Senior Loan Documents (whether one or more,
the "Prior Liens").
Extended Use Agreement:
Lender hereby agrees that the lien of this Deed of Trust shall be subordinate to any
extended low-income housing commitment (as such term is defined in Section
42(h)(6)(B) of the United States Revenue Code (the "Code")) recorded against the
Property in accordance with Section 42(h)(6)(E) of the Code.
Other Exceptions to Conveyance and Warranty:
Easements, rights-of-way, and prescriptive rights, whether of record or not, and all
recorded instruments that affect the Property as of the date hereof (together with the
Prior Liens shall be collectively referred to herein as the "Permitted Exceptions").
FOR VALUE RECEIVED AND TO SECURE PAYMENT OF THE NOTE, BORROWER HEREBY
IRREVOCABLY GRANTS, BARGAINS, SELLS, CONVEYS, TRANSFERS AND ASSIGNS THE
PROPERTY TO TRUSTEE, HIS SUCCESSORS AND ASSIGNS, IN TRUST, WITH POWER OF SALE,
SUBJECT HOWEVER TO THE PERMITTED EXCEPTIONS.
TO HAVE AND TO HOLD the Property, together with the rights, privileges and
appurtenances thereto belonging unto Trustee and his substitutes or successors, forever,
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subject to the Permitted Exceptions, and Borrower hereby binds itself and its heirs, executors,
administrators, personal representatives, successors and assigns to warrant and forever
defend the Property unto Trustee, his substitutes or successors and assigns, against the claim
or claims of all persons claiming or to claim the same or any part thereof, subject to Permitted
Exceptions.
Borrower warrants that it has good and indefeasible fee simple title to the Property
and has full power and lawful authority to grant, bargain, sell, convey, assign, transfer and
mortgage its interest in the Property in the manner and form hereby done or intended.
Borrower will preserve its interest in and title to the Property and will forever warrant and
defend the same to Trustee and Lender against any and all claims, subject to Permitted
Exceptions, and will forever warrant and defend the validity and priority of the lien and
security interest created herein against the claims of all persons and parties whomsoever,
subject to Permitted Exceptions. Further, the foregoing warranty of title shall inure to the
benefit of and be enforceable by Lender in the event Lender acquires title to the Property
pursuant to any foreclosure. If Borrower pays all amounts due to Lender by the terms of the
Loan Documents, this Deed of Trust shall have no further effect, and Lender shall release it at
Borrower's expense.
BORROWER'S OBLIGATIONS:
Borrower acknowledges, understands and agrees (a) that Lender's interests hereunder
have been collaterally assigned to the City of Corpus Christi, Texas (the "City"); and (b) to
comply with each and every term and condition of the following executed on even date hereof,
(i) the Note, (ii) this Deed of Trust, (iii) the HOME Agreement (hereinafter defined), (iv) the
Deed Covenant to Bind Property for Period of Affordability executed by Borrower (the
"Restrictions"), (v) that Certification Regarding Lobbying for Agreements, Grants, Loans and
Cooperative Agreements of even date herewith executed by Borrower(the "Certification"), and
(vi) the Assignment of Leases and Rentals executed by Borrower for the benefit of Lender (the
"Assignment of Leases", and together with the Note, the HOME Agreement, the Certification,
the Restrictions, and this Deed of Trust, the "Loan Documents"), which include the following:
1. Keep the Property in good repair, ordinary wear and tear and insured casualty
excepted, and in a safe, sanitary and decent condition, in compliance with the City of Corpus
Christi Building and Housing Codes in all material respects throughout the term of the Note.
2. Not convert any of the federal "HOME-assisted units", as such term is used in
that HOME Grant Agreement dated of even date hereof and executed by the City, Borrower
and Lender (the "HOME Agreement"), to any form of condominium, cooperative ownership,
or other non-residential use.
3. Pay all taxes and assessments on the Property before past due and provide on
an annual basis to Lender proof of such payment.
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4. Pay before past due, or bond around or contest, all claims and demands of
mechanics, materialmen, laborers and others for any and all work performed or materials
delivered for the Property.
5. Preserve the lien's priority as it is established in this Deed of Trust.
6. Deliver to the City, within ten (10) business days from the date of execution
hereof, a Loan Title Policy, issued by a title company authorized to do business in the State of
Texas, on the form promulgated by the Texas State Board of Insurance, wherein the title to
the Property is insured as indicated in the corresponding Commitment for Title Insurance
subject to the Permitted Exceptions.
7. Maintain, at Borrower's sole expense, in a form reasonably acceptable to
Lender, an insurance policy that is in strict accordance with the insurance requirements set
forth in the HOME Agreement, and comply with all conditions related to insurance stated in
the HOME Agreement.
8. Provide evidence to Lender that all insurance required herein has been paid
current as of the date such evidence is furnished to Lender.
9. Keep any buildings occupied as required by the insurance policy and the HOME
Investment Partnership Program enacted under Title II of the Cranston-Gonzales National
Affordable Housing Act.
10. Give Lender prompt, written notice of the occurrence of any material casualty
affecting the Property or the institution of any proceedings for eminent domain or for the
condemnation of the Property, or any portion thereof.
11. Subject to the terms and conditions of the Sterling Subordination Agreement
and the Senior Loan Documents, assign to Lender all insurance proceeds on the Property and
all causes of action, claims, compensation, awards or recoveries for any damage,
condemnation or taking of all or any part of the Property or for any damage or injury to it or
for any loss or diminution in value of the Property; provided, however, that if such proceeds
and other amounts available to Borrower are sufficient to restore the Property, in Lender's
reasonable discretion, the proceeds shall be applied to such restoration.
12. If this is not a first lien, pay all prior notes that Borrower is liable to pay and
abide by all prior lien instruments in accordance with their terms.
13. Upon 48 hours prior notice, permit Lender to inspect, during normal business
hours, the Property to determine if it is being maintained in accordance with local Uniform
Building Code and property maintenance and upkeep standards.
14. Ensure the performance of all obligations and compliance at all times with each
and every term and condition of the Loan Documents.
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15. Ensure the performance of all obligations and the compliance at all times with
each and every term and condition of the Wells Subordination Agreement.
16. Not discriminate against any prospective tenant of the Property on the basis of
the prospective tenant's race, color, creed, sex, national origin, age, handicap, familial status
or on the basis of said tenant's receipt of, or eligibility for, housing assistance under any
federal, state or local housing assistance program or on the basis that the prospective tenant
has a minor child or children who will be living with him/her and acknowledges that the
project for which this Deed of Trust and the Note is given is to be constructed specifically as a
housing development intended and authorized for "low income" persons, as that term is
defined in 24 CFR Part 5 and all other applicable federal laws, regulations, and guidelines.
17. Remain liable for the following and for any reasonable out-of-pocket loss, cost,
direct and actual expense, liability, obligation and claim which is suffered or incurred by
Lender on account of any of the following (unless such action is in compliance with the terms
of the Senior Loan Documents and/or the Wells Subordination Agreement):
(a) Borrower's commission of any fraud, or its breach of any material
representation or warranty contained in the Loan Documents or any document or
instrument submitted in connection with the Note;
(b) Any default, beyond applicable notice and cure periods, by Borrower in
its obligations under any of the Loan Documents to pay all taxes, assessments and
other charges imposed or assessed against the Property or any personalty used in
connection with the operation of the Property, or to keep the Property and all such
personalty insured, in accordance with the terms of the Loan Documents;
(c) Any waste (excluding normal wear and tear and insured casualty) of the
Property or any uninsured damage to the Property caused by any negligent or willful
violation by Borrower of any covenant or agreement contained in any of the Loan
Documents pertaining hereto regarding the maintenance, repair and restoration of the
Property or any damage to or deterioration in the Property caused by any negligent or
willful act or omission of Borrower or the employees, agents, other representatives or
contractors of Borrower, that is not timely repaired;
(d) Borrower's taking or allowing the taking of any action that invalidates or
materially diminishes any insurance that the terms of the Loan Documents require
Borrower to carry on the Property;
(e) The failure of Borrower to pay any indebtedness or obligation that
results in the filing or creation of a mechanic's, materialman's or judgment lien or
other lien against the Property or any part thereof, subject to Borrower's right to bond
around or contest same;
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(f) The failure of Borrower to properly apply, or ensure the application of,
in accordance with the Loan Documents, all insurance proceeds and condemnation
rewards received by Borrower with respect to the Property;
(g) The failure of Borrower to return or deliver to Lender any tangible
personal property (including leases, books, records and files relating to the leasing,
operation and maintenance of the Property) taken from the Property or kept
elsewhere by Borrower following any foreclosure of the Property;
(h) The failure of Borrower to comply with any applicable governmental
statutory or other legal requirements or to ensure such compliance in connection with
the Property or to correct any material defects in construction of the Property of
which Borrower has actual knowledge;
(i) Any and all of Lender's reasonable, actual and direct out-of-pocket
costs, expenses, damages or liabilities, whether incurred by Lender prior to or
following foreclosure of this Deed of Trust and whether Lender shall be in the status of
a lienholder or an owner of the Property following foreclosure (directly or indirectly),
arising out of or attributable to the use, generation, storage, release, threatened
release, discharge, disposal, or presence on, under, or about the Property of any
hazardous substance defined under environmental law;
(j) All reasonable attorneys' fees and other reasonable out-of-pocket costs
incurred by Lender in order to recover from Borrower any of the amounts for which
Borrower remains liable as provided herein;
(k) All reasonable attorneys' fees and other costs incurred by Lender in the
event all of the following occur: (i) Borrower defaults beyond applicable notice and
cure period, as applicable, under any of the Loan Documents (ii) Lender accelerates the
maturity of the Note and commences judicial or non-judicial foreclosure proceedings,
and (iii) either before or after the foreclosure sale, Borrower institutes litigation or files
a petition or claim in any judicial or administrative proceeding, including without
limitation any bankruptcy or similar proceeding or any action seeking any injunctive
relief against Lender or Trustee, which contests Lender's right of foreclosure or the
legality of any of the Loan Documents; and
(I) The failure of Borrower to deliver to Lender all rents and profits
collected or received by Borrower in accordance with the terms of the Assignment of
Leases.
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It being understood that the liability provisions contained in this Section 17 of Borrower's
Obligations are binding upon Borrower and its successors and assigns and shall inure to the
benefit of Lender and any subsequent holder of the Note; however, neither Borrower nor the
direct or indirect equity owners of Borrower, including, without limitation, Borrower's general
and limited partners, shareholders, members and/or venturers, as applicable, shall have any
liability for any amounts secured hereunder, and Lender's sole recourse shall be against
Borrower's interest in the Property
BORROWER'S REPRESENTATIONS AND WARRANTIES:
Borrower, on behalf of itself, hereby represents, warrants and covenants the
following:
1. No bankruptcy or insolvency proceedings are pending or, to Borrower's
knowledge, contemplated by or against Borrower or by or against any endorser, cosigner,
indemnitor or guarantor of the Note secured hereby.
2. All reports, certificates, affidavits, statements and other data furnished by
Borrower to Lender in connection with the loan evidenced by the Note secured hereby are
true and correct in all material respects and Borrower has not omitted to state any fact or
circumstance necessary to make the statements contained therein not misleading.
3. The execution, delivery and performance of the Loan Documents have been
duly authorized by all necessary action to be binding and enforceable against Borrower in
accordance with the respective terms thereof (except as the same may be limited by
bankruptcy, insolvency and similar laws affecting the rights of creditors generally and
principals of equitable relief and the discretion of a court of law) and do not contravene,
result in a breach of or constitute a default under any contract or agreement of any nature
executed by Borrower to which Borrower is a party or by which Borrower or any of its
properties may be bound.
4. To the best of Borrower's knowledge, upon completion of the improvements to
the Property contemplated by the Loan Documents, the Property and the intended use
thereof by Borrower shall comply with all applicable restrictive covenants, zoning ordinances,
subdivision and building codes, flood disaster laws, applicable health and environmental laws
and regulations and all other ordinances, orders or requirements issued by any state, federal
or municipal authorities having or claiming jurisdiction over the Property.
S. All utility services necessary and sufficient for the full use, occupancy,
operation and disposition of the Property for its intended purposes are available or will be
available when needed, including water, storm sewer, sanitary sewer, gas, electric, cable and
telephone facilities.
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6. All streets, roads, highways, bridges and waterways necessary for access to and
full use, occupancy, operation and disposition of the Property, have been completed, have
been dedicated to the appropriate governmental authority, and are open and available, or
will be available when needed by the Property without, to Borrower's knowledge, further
condition or cost to Borrower.
7. There are no judicial or administrative actions, suits or proceedings pending or,
to Borrower's knowledge threatened, against or affecting Borrower or the Property which, if
adversely determined, would impair either the Property or Borrower's ability to perform the
covenants or obligations required to be performed under this Deed of Trust or any of the
other Loan Documents.
8. The Property is free from any lien for water charges, sewer rents, taxes and
assessments.
9. As of the date of this Deed of Trust, no part of the Property has been taken in
condemnation, eminent domain or like proceeding nor, to Borrower's knowledge, is any such
proceeding pending.
LENDER'S RIGHTS
Subject to the terms of the Wells Subordination Agreement and the Senior Loan
Documents, under this Deed of Trust:
1. Lender may appoint in writing a substitute or successor trustee, succeeding to all
rights and responsibilities of Trustee.
2. If the proceeds of the Note secured hereby are used to pay any debt secured by
prior liens, Lender is subrogated to all of the rights and liens of the holders of any debt so paid.
3. Any proceeds payable under the insurance policy required to be obtained by this
Deed of Trust or any of the Loan Documents shall be payable to Lender. Lender will apply such
proceeds it receives to repair or replace damaged or destroyed improvements covered by the
policy, if the proceeds and other amounts available to Borrower are sufficient, in Lender's
reasonable discretion, for such restoration. Any proceeds not used for restoration hereunder
shall be disbursed to Borrower.
4. If Borrower fails to perform any of Borrower's obligations and all applicable
notice and cure periods have expired, Lender may, at its option, perform such obligations and
be reimbursed by Borrower on demand at the place where the Note secured hereby is payable
for any reasonable sums so paid, including reasonable attorneys' fees, plus interest on those
sums from the dates of payment at the rate stated in the Note for matured, unpaid amounts.
The sum to be reimbursed shall be secured by this Deed of Trust.
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5. If Borrower defaults beyond all applicable notice and cure periods, or if a
material default occurs on a senior lien note executed by Borrower that is secured by the
Property beyond all applicable notice and cure periods, as may be required by law or by
written agreement, then Lender may:
(a) Accelerate the maturity of the Note hereby secured and declare the
entire unpaid principal balance and applicable interest on the Note immediately due
and payable;
(b) Request Trustee to foreclose this lien, in which case Lender or Lender's
agent shall give notice of the foreclosure sale as provided by the Texas Property Code as
then in effect; and
(c) Purchase the Property at any foreclosure sale by offering the highest bid
and then have the bid credited against the outstanding balance due under the Note.
6. In addition to the rights of Lender contained herein, Lender shall have the
further right to accelerate the maturity of the Note hereby secured and declare the entire
unpaid principal balance and all accrued interest immediately due should any one or more of
the following occur(each, an "Event of Default"):
(a) Subject to the terms and conditions of the Permitted Exceptions and
resident leases of the Property, and excepting any items replaced in the ordinary course
of business, Borrower fully or partially sells, conveys, disposes of, alienates,
hypothecates, assigns, mortgages, pledges, transfers or encumbers all or any material
part of the Property or any material interest therein, the rents therefrom, the income
therefrom, or any other items of collateral, whether voluntarily or involuntarily, without
the prior written consent of Lender, such consent not to be unreasonably delayed,
withheld or conditioned, other than any transactions (i) permitted by the terms of the
Loan Documents, (ii) related to refinancing the Prior Liens and/or any subordinate liens,
(iii) carried out in the ordinary course of business (such as granting easements and
entering into license agreements), and/or (iv) permitted by the terms of the Senior Loan
Documents and/or the Partnership Agreement (hereinafter defined);
(b) Subject to the terms of the Permitted Exceptions, Borrower fully or
partially sells, conveys, assigns, mortgages, pledges, transfers or encumbers an interest
in Borrower (if Borrower is not a natural person or persons but a corporation,
partnership, trust or other legal entity), including, in the event Borrower is a limited or
general partnership, a joint venture or a limited liability company, a change in the
ownership interests in any general partner (but not any limited partner), any joint
venturer or any member either voluntarily, involuntarily or otherwise, whether such
interest is in the form of a beneficial or partnership interest or in the form of a power of
direction, control or management, or otherwise, without the prior written consent of
Lender, such consent not to be unreasonably delayed, withheld or conditioned.
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Notwithstanding the foregoing, the removal and replacement of Borrower's general
partner by Borrower's limited partner or the transfer by Borrower's limited partners of
partnership interests in Borrower in accordance with Borrower's Amended and Restated
Agreement of Limited Partnership dated on or about the date hereof(as amended from
time to time, the "Partnership Agreement"), shall not constitute a default or violation of
this Deed of Trust or any of the other Loan Documents. Moreover, Borrower's general
partner is permitted to grant a security interest in its partnership interest as needed to
secure financing for the Property, and such encumbrance shall not constitute a default
or violation of this Deed of Trust or any of the other Loan Documents;
(c) Borrower converts any of the federal HOME-assisted units (as described
in the HOME Agreement) to a form of condominium, cooperative ownership, or other
non-residential use;
(d) Borrower: (i) files (as debtor) or has filed against it, a petition for the
appointment of a receiver or for bankruptcy or insolvency, (ii) becomes or is adjudicated
insolvent or bankrupt or admits in writing the inability to pay debts as they mature, (iii)
petitions or applies to any tribunal for or consents to or does not contest the
appointment of a receiver, trustee, custodian or similar officer for Borrower or for any
general partner of Borrower or for a substantial part of the assets of Borrower, or (iv)
commences any case, proceeding or other action under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect. In any involuntary proceeding
Borrower shall have ninety(90) days to have such matter dismissed or stayed;
(e) The Property or any substantial part thereof is taken on execution or
other process of law in any action against Borrower resulting in Borrower being unable
to operate the Property for its intended purpose;
(f) Borrower permanently abandons the Property or any material portion
thereof;
(g) Borrower defaults or at any time fails to timely comply with any one or
more terms or conditions of the Loan Documents beyond all applicable notice and cure
period;
(h) Subject to the terms of the Wells Subordination Agreement and the
Senior Loan Documents, the holder of any lien or security interest on the Property
(other than Lender), without implying the consent of Lender to the existence or creation
of any such lien or security interest (except as acknowledged herein), and whether
superior or subordinate to this Deed of Trust or the Note secured hereby, (i) declares a
default, and (ii) such default is not cured within all applicable notice and grace periods
set forth in the applicable document, or institutes foreclosure or other proceedings for
the enforcement of its remedies thereunder;
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(i) The Property, or any portion thereof, is subjected to actual waste or to
removal, demolition or alteration so that the value of the Property is materially
diminished thereby and Lender determines, in its reasonable discretion, that restoration
is infeasible and Lender is not adequately protected from any material loss, damage or
risk associated therewith;
(j) Any representation or warranty made in any the Loan Documents by
Borrower, any general partner in Borrower, or any person authorized by Borrower to
execute any of the Loan Documents on behalf of Borrower, is determined by Lender to
have been false or misleading in any material and detrimental respect at the time made;
provided, however, that solely with regard to non-financial misrepresentations or
warranties, Borrower shall have thirty (30) days after receipt of written notice from
Lender in which to take such action as may be necessary to cause the matter or thing
represented to become true;
(k) Borrower (i) initiates any material changes in construction work on the
Property without Lender's prior, written approval, such approval not to be unreasonably
delayed, withheld or conditioned, with a "material change" defined as any single change
order of $50,000.00 or more or aggregate change orders in excess of$100,000.00, or (ii)
fails to provide to Lender documentation, reasonably acceptable to Lender, of the actual
project costs incurred in connection with the Property, and such failure continues for
fifteen (15) days after Lender delivers written notice thereof to Borrower;
(I) Borrower fails to commence construction of the project for which this
Deed of Trust and the Note are given, and more specifically detailed in Section 15 of
General Provisions hereof, by no later than sixty(60) days following the execution of this
Deed of Trust, or fails to complete construction in substantial compliance with all
conditions and requirements set forth in the Loan Documents, including all attachments
and exhibits thereto, by no later than December 31, 2022;
(m) Borrower's failure to pay any installment of the indebtedness evidenced
by this Deed of Trust in accordance with the terms hereof and/or the other Loan
Documents, and such failure shall continue for a period of thirty (30) days after the date
due.
(n) Borrower's failure to perform or its breach of any of the covenants or
obligations herein contained or contained in any of the other Loan Documents that is
not described in Sections (a) - (m) above, and such continues for thirty (30) days after
written notice thereof is delivered by Lender to Borrower; provided, however, if the
default is not of the type that can be cured in said 30-day period, Borrower shall have
such additional time as is necessary to cure such default provided Borrower is using
commercially reasonable efforts to do so.
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If an Event of Default exists, all obligations, if any, of Lender hereunder, including,
without limitation, any obligation to advance funds hereunder or under any of the other Loan
Documents, shall immediately cease and terminate.
Subject to the terms and provisions of the Note, the Wells Subordination Agreement,
and the Senior Loan Documents, notwithstanding anything to the contrary herein contained
or inferable from any provisions hereof and/or any of the other Loan Documents, during the
existence of an Event of Default, upon Lender's election, the unpaid principal and applicable
accrued interest on the Note shall immediately become due and payable in full.
An Event of Default shall be a default under each of the other Loan Documents and
any other contract or agreement, if applicable, between Borrower and Lender.
TRUSTEE'S DUTIES:
If requested by Lender to foreclose this lien,Trustee shall:
1. Either personally or by agent give notice of the foreclosure sale as required by
the Texas Property Code as then amended.
2. Sell and convey all or part of the Property to the highest bidder for cash with a
general warranty binding Borrower, subject to the Permitted Encumbrances.
3. From the proceeds of the sale, pay, in this order:
(a) Reasonable out-of-pocket expenses of foreclosure, including a
reasonable and customary fee to Trustee;
(b) To Lender, the full amount of the outstanding principal balance under
the Note, accrued interest, reasonable attorney's fees, and other charges due under
the terms of the Loan Documents and unpaid;
(c) Any amounts required by law to be paid before payment to Borrower;
and
(d) To Borrower, any balance.
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GENERAL PROVISIONS:
1. If any of the Property is sold pursuant to a foreclosure action under this Deed
of Trust, Borrower shall immediately surrender possession to the purchaser. If Borrower fails
to do so, Borrower shall become a tenant at sufferance of the purchaser, subject to an action
for forcible detainer.
2. Recitals in any Trustee's deed conveying the Property will be presumed to be
true.
3. Proceeding under this Deed of Trust, filing suit for foreclosure, or pursuing any
other remedy will not constitute an election of remedies.
4. This lien shall remain superior to liens later created even if the time of payment
of all or part of the Note secured hereby is extended or part of the Property is released.
5. If any portion of the Note secured hereby cannot be lawfully secured by this
Deed of Trust, payments made by Borrower pursuant to the terms of the Note shall be
applied first to discharge that portion.
6. Borrower assigns to Lender all sums payable to or received by Borrower from
condemnation of all or part of the Property, from private sale in lieu of condemnation of all
or part of the Property, and from damages caused by public works or construction on or near
the Property. Should such an event occur, said sums shall be payable to Lender. Lender will
release such proceeds to Borrower to restore the Property if the proceeds and any other
amounts available to Borrower are sufficient, in Lender's reasonable discretion, for such
restoration. Any proceeds remaining after restoration, which are not used shall be released
to Borrower. Lender shall not be liable for failure to collect or to exercise diligence in
collecting any such sums.
7. Interest on the debt secured by this Deed of Trust shall not exceed the
maximum amount of nonusurious interest that may be contracted for, taken, reserved,
charged, or received under Texas law; any interest in excess of that maximum amount shall
be credited on the principal of the debt or, if that has been paid, refunded. Upon any
acceleration or required or permitted prepayment, any such excess shall be canceled
automatically as of the date of acceleration or prepayment or, if already paid, credited on the
principal of the debt or, if the principal of the debt has been paid, refunded. This provision
overrides other provisions in this and all other instruments concerning the debt.
8. Borrower shall at all times comply and ensure that the Property complies, in all
material respects, with all federal, state, and local statutes, ordinances, regulations and other
governmental or quasi-governmental requirements and private covenants now or hereafter
relating to the ownership, construction, rehabilitation, use or operation of the Property,
including, but not limited to, those concerning employment and compensation of persons
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engaged in operation and maintenance of the Property and any environmental, disabled
person access or ecological requirements, even if such compliance shall require structural
changes to the Property. Borrower shall not use or occupy, or knowingly allow the use or
occupancy of, the Property in any manner which violates, in any material respect, any lease
of the Property or any applicable federal, state, or local law, rule, regulation or order or
which constitutes a public or private nuisance or which makes void, voidable or cancelable,
or increases the premium of, any insurance then in force with respect thereto.
9. To the extent permitted by applicable law, in the event that Borrower is the
subject of any insolvency, bankruptcy, receivership, dissolution, reorganization or similar
proceeding, federal or state, voluntary or involuntary, under any present or future law or act,
Lender is entitled to the automatic and absolute lifting of any automatic stay as to the
enforcement of its remedies under the Loan Documents against the Property, including
specifically, but not limited to, the stay imposed by Section 362 of the United States Federal
Bankruptcy Code, as amended.
10. When the context requires, singular nouns and pronouns include the plural.
11. The term "Note" includes all sums secured by this Deed of Trust.
12. This Deed of Trust shall bind, inure to the benefit of, and be exercised by
successors in interest of Lender and Borrower.
13. If Borrower and Maker are not the same person, the term "Borrower" shall
include Maker.
14. Lender may remedy any default without waiving it.
15. Lender may waive any default without waiving prior or subsequent defaults.
16. The term "days" when used herein shall mean calendar days. The term
"business day" when used herein shall mean that part of any given day from Monday through
Friday excluding those scheduled holidays officially adopted and approved by the City of
Corpus Christi's City Council for its employees.
17. All notices demands, requests or other communications required or permitted
to be given pursuant to the provisions of this Deed of Trust and the other Loan Documents
shall be in writing and shall be considered properly given if mailed by first class United States
mail, postage prepaid, registered or certified with return receipt requested, or by depositing
same with Federal Express or another reputable private courier service for next business day
delivery or by delivering same in person to the intended addressee. All notices, demands and
requests shall be effective upon such personal delivery, or one (1) business day after being
deposited with the private courier service, or three (3) business days after deposit in the
custody of the U.S. Postal Service. Rejection or other refusal to accept or the inability to
WayForward FishPond
Deed of Trust--Page 14
deliver because of changed address of which no notice was given as herein required shall be
deemed to be receipt of the notice, demand or request sent. For purposes of notice, the
addressee of the parties shall be as follows:
To Lender: WayForward
9702 Angelwylde Dr.
Austin,TX 78733
With a copy to: City of Corpus Christi ;
P.O. Box 9277
Corpus Christi,Texas 78469-9277
Attn: Grant Monitoring Director
With a copy to: City Attorney's Office
Attn: City Attorney
P. 0. Box 9277
Corpus Christi,TX 78469-9277
To Borrower: FishPond Living at Corpus Christi, LP
500 W 2nd St, Ste 1900
Austin,TX 78701
With a copy to Borrower's
Limited Partner:
PNC Real Estate Tax Credit Capital Institutional Fund 47,
Limited Partnership
121 S.W. Morrison Street, Suite 1300
Portland, Oregon 97204-3143
Attn: Fund Manager
Nixon Peabody LLP
799 9th Street NW Suite 500,
Washington, DC 20001-5327
Attention: Matthew W. Mullen
And to Construction Lender:
Sterling Bank
50 S. Bemiston Ave.
Clayton, Missouri 63105
Attn: Phil Minden
WayForward FishPond
Deed of Trust--Page 15
Any party shall have the right to change its address for notice hereunder to any other location
within the continental United States by the giving of twenty(20) days' notice to the other party
in the manner set forth herein.
18. In the event of any conflict between the provisions of this Deed of Trust and
those of the Wells Subordination Agreement and/or the Senior Loan Documents, the terms of
the Wells Subordination Agreement and the Senior Loan Documents shall prevail; provided
however; with respect to any matter addressed in more than one of such documents, the fact
that one document provides for greater, lesser or different rights or obligations than the other
shall not be deemed a conflict unless the applicable provisions are inconsistent and could not
be simultaneously enforced or performed. In the event of any conflict between the provisions
of this Deed of Trust and those of any other Loan Document, this Deed of Trust shall prevail.
19. Whenever Lender is required under this Deed of Trust or any of the other Loan
Documents to provide its consent or approval, or render its determination, judgment or
decision, such consent, approval, determination, judgment or decision (or the denial of such
approval, determination,judgment or decision, as the case may be) shall not be unreasonably
withheld or conditioned and shall be given within a reasonable time after its receipt of the
request therefor, taking into consideration the circumstances of the request
20. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER BORROWER NOR
LENDER SHALL ASSERT, AND EACH HEREBY WAIVE, ANY CLAIM AGAINST THE OTHER ON
ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE
DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF, IN
CONNECTION WITH, OR AS A RESULT OF, THIS DEED OF TRUST AND THE OTHER LOAN
DOCUMENTS.
21. The following notification is provided to Borrower pursuant to Section 326 of
the USA Patriot Act of 2001, 31 U.S.C. Section 5318:
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW
ACCOUNT. To help the government fight the funding of terrorism and money
laundering activities, Federal law requires all financial institutions to obtain,
verify, and record information that identifies each person or entity that opens
an account, including any deposit account, treasury management account,
loan, other extension of credit, or other financial services product. What this
means for Borrower: When Borrower opens an account, if Borrower is an
individual, Lender will ask for Borrower's name, taxpayer identification number,
residential address, date of birth, and other information that will allow Lender
to identify Borrower, and, if Borrower is not an individual, Lender will ask for
Borrower's name, taxpayer identification number, business address, and other
information that will allow Lender to identify Borrower. Lender may also ask, if
Borrower is an individual, to see Borrower's driver's license or other identifying
1 WayForward FishPond
Deed of Trust--Page 16
documents, and, if Borrower is not an individual, to see Borrower's legal
organizational documents or other identifying documents.
The Lender hereby notifies the Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L 107-56 (signed into law October 26, 2001)) (the "Act"), it is
required to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information that will
allow the Lender to identify the Borrower in accordance with the Act.
22. THIS DEED OF TRUST AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCLUDING
ITS CONFLICT AND CHOICE OF LAW PRINCIPLES, AND APPLICABLE UNITED STATES FEDERAL
LAW. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS DEED OF TRUST
AND/OR ANY OF THE OTHER LOAN DOCUMENTS, BORROWER AND LENDER HEREBY AGREE
THAT THE STATE AND FEDERAL COURTS LOCATED IN CORPUS CHRISTI, TEXAS SHALL HAVE
EXCLUSIVE JURISDICTION AND VENUE WITH RESPECT TO ALL ACTIONS BROUGHT BY OR
AGAINST ANY PARTY UNDER OR PURSUANT TO THIS DEED OF TRUST AND/OR ANY OF THE
OTHER LOAN DOCUMENTS, AND BORROWER AND LENDER HEREBY CONSENT TO THE
EXCLUSIVE JURISDICTION OF SUCH COURTS AND TO SERVICE OF PROCESS, EFFECTIVE UPON
RECEIPT BY PERSONAL SERVICE, OVERNIGHT EXPRESS DELIVERY OR REGISTERED OR CERTIFIED
MAIL. TO THE EXTENT OF ANY INCONSISTENCY BETWEEN THIS SECTION AND A LIKE
PROVISION IN ANY OTHER LOAN DOCUMENTS, THIS SECTION SHALL GOVERN AND CONTROL.
23. Lender agrees that the lien of this Deed of Trust shall be subordinate to any
extended low-income housing commitment (as such term is defined in Section 42(h)(6)(B) of
the Internal Revenue Code) recorded against the Property.
24. THIS DEED OF TRUST AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND THEREOF 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 WITH RESPECT TO THE SUBJECT
MATTER HEREOF.
25. Lender hereby agrees that, if Borrower is a limited partnership, any partner of
Borrower may, but shall not be obligated to, cure any default and Event of Default by
Borrower hereunder or under any of the other Loan Documents on the same terms provided
to Borrower hereunder or under any of the Loan Documents, and for the purposes hereof
such curative actions shall be considered the actions of Borrower. Lender hereby agrees that
copies of all default notices sent to Borrower will also be sent to Borrower's limited partner at
the address provided in Section 17 of this Deed of Trust.
WayForward FishPond
Deed of Trust--Page 17
y
N
26. By its acceptance of the delivery of the Collateral Assignment, the City agrees
to all of the terms hereof and of the Assignment of Leases that are applicable to "Lender"
hereunder and thereunder.
[SIGNATURE PAGE FOLLOWS]
WayForward FishPond
Deed of Trust-- Page 18
EXECUTED to be effective as of the date and year first written above.
BORROWER:
FishPond Living at Corpus Christi, LP a Texas limited partnership
By: FishPond Corpus Christi Manager, LLC,
a Texas limited liability company,
its general partner /
By:
David Fournier, anaging Member
STATE OF TEXAS §
COUNTY OF ) V' c&L 3 §
This instrument was acknowledged before me on this day of November, 2020, by
David Fournier, Managing Member of FishPond Corpus Christi Manager, LLC, a Texas limited
liability company, as General Partner of Fishpond Living at Corpus Christi, LP, a Texas limited
partnership, on behalf of said limited partnership.
[ SEAL ] •
0 _____
or •rY
Public, State of Texas
-,AFTER RECORDING, PLEASE RETURN TO: ;NPaYP:.; LAURA ANN GUNN
=°:' e.`i+;Notary Public, State of Texas
7:-''',"..,N.:#is Comm. expires 07-30-2021
Director, Grant Monitoring Department ,74.4,fi,�� Notary ID 126958292
c/o City of Corpus Christi
P.O. Box 9277
Corpus Christi, Texas 78469-9277
WayForward FishPond
Deed of Trust—Signature Page
EXHIBIT A
THE LAND
FISHPOND AT BAY TERRACE BLOCK 5, LOT 23, PUD, an addition to the City of Corpus Christi,
Texas, Nueces County, Texas, as per map or plat recorded in Volume 69, Page 453-454, Map Records of
Nueces County, Texas.
Way6Forward
Deed of Trust—Exhibit A
83697478v.3 0543434/00030
2020-2020050418 11/04/2020 3:26 PM Page 21 of 21
Nueces County
Kara Sands
Nueces County
Clerk
Instrument Number: 2020050418
eRecording - Real Property
DEED OF TRUST
Recorded On: November 04, 2020 03:26 PM Number of Pages: 21
" Examined and Charged as Follows: "
Total Recording: $97.00
•
,,,,,,,,, STATE OF TEXAS
4TY CpU�„l'' NUECES COUNTY
.%%* ��� % I hereby certify that this Instrument was FILED In the File Number sequence on the date/time
ca' S\a �5 printed hereon, and was duly RECORDED in the Official Records of Nueces County,Texas.
�opNUEcfcS~' Kara Sands 2.0'`'''''' Nueces County Clerk
Nueces County, TX �
***********THIS PAGE IS PART OF THE INSTRUMENT***********
Any provision herein which restricts the Sale, Rental or use of the described REAL PROPERTY
because of color or race is invalid and unenforceable under federal law.
File Information: Record and Return To:
Document Number: 2020050418 CSC
Receipt Number: 20201104000148 2411 Centerville Road, Suite 400
Recorded Date/Time: November 04, 2020 03:26 PM
User: Lisa C Wilmington DE
Station: CLERK02
2020-2020050417 11/04/2020 3:26PM Page 1 of 3
i
a
DEED RESTRICTIONS COVENANT
TO BIND PROPERTY
FOR PERIOD OF AFFORDABILITY
STATE OF TEXAS §
§ KNOW ALL BY THESE PRESENTS:
COUNTY OF NUECES §
Pursuant to that HOME Grant Agreement dated to be effective as of November 1, 2020,
entered into between the CITY of Corpus Christi,a Texas home-rule municipal corporation(the
"CITY") and WAYFORWARD, a Texas nonprofit corporation, hereinafter referred to as
("WAYFORWARD"). which is the legal title holder to property described below (the "HOME
Agreement"), is incorporated in this instrument by reference, WAYFORWARD accepted federal
funds in conjunction with the United States Department of Housing and Urban Development's
Home Investment Partnership Program administered by CITY,for the development of multifamily
housing to be known as the Fishpond at Corpus Christi Apartments and located on the following
property:
Block five (5), Lot twenty-three (23), PUD. BAY TERRACE, a
Subdivision of the City of Corpus Christi,Nueces County,Texas,as
shown by the map or plat thereof recorded in Volume 69,Page 453,
Map Records of Nueces County,Texas
Pursuant to the terms, conditions, and covenants contained within the HOME Agreement, '
WAYFORWARD, in consideration of receiving the funding,agrees to bind the Property with the
affordability requirements specified in the HOME Agreement and Title 24, Part 92.252, of the
United States Code of Federal Regulations,for a period of not less than twenty(20)years from the
date of completion of the construction of the project on the Property,which shall be evidenced by
the issuance of certificates of occupancy (or the jurisdictional equivalent)for the buildings located
on the Property.
I
(EXECUTION PAGE FOLLOWS)
•
•
This instrument constitutes a covenant running with the land required by federal law
and binds WAYFORWARD, and its successors, heirs, assigns, and transferees, such
Property being subject to this instrument.
WAYFORWARD.,
Texas nonprofit corporati••,
By:
S '
•r, ' esident
STATE OF TEXAS §
COUNTY OF TrAN Sys §
This instrument was acknowledged before me on this 7 pt)day of Ne v ,2020,
by Scott Frazier, President of WAYFORWARD,a Texas nonprofit corporation, on behalf of said
corporation.
[ SEAL ]
Notary Public, State of Texas
AFTER RECORDING RETURN TO:
ATTN: Director, elttnik-15:01-ROM Department
MICHAEL
P. O. Box 9277 "Y P�a�,,
_z,• � Notary PuWAYNE blic,State of Texas
Corpus Christi, TX 78469-9277 .R• Comm. Expires 10-01-2022
o,4-nm2;,0` Notary ID 131744022
2020-2020050417 11/0412020 3:26 PM Page 3 of 3
Nueces County
Kara Sands
Nueces County
Clerk
Instrument Number: 2020050417
eRecording- Real Property
COVENANT
Recorded On: November 04, 2020 03:26 PM Number of Pages: 3
" Examined and Charged as Follows: "
Total Recording: $25.00
STATE OF TEXAS
C07j9��1+ NUECES COUNTY
i
c,4 I hereby certify that this Instrument was FILED In the File Number sequence on the date/time
S�c 5~'' Kara Sands hereon,and was duly RECORDED in the Official Records of Nueces County,Texas.
``NNN' Nueces County Clerk OGS
Nueces County, TX QA�
24)
*********** THIS PAGE IS PART OF THE INSTRUMENT***********
Any provision herein which restricts the Safe, Rental or use of the described REAL PROPERTY
because of color or race is invalid and unenforceable under federal law.
File Information: Record and Return To:
Document Number: 2020050417 CSC
Receipt Number: 20201104000148 2411 Centerville Road, Suite 400
Recorded Date/Time: November 04, 2020 03:26 PM
User: Lisa C Wilmington DE
Station: CLERK02