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HomeMy WebLinkAboutC2007-512 - 1/16/2007 - NAS - •4: HOME LOAN AGREEMENT BETWEEN THE CORPUS CHRISTI COMMUNITY IMPROVEMENT CORPORATION AND TX LULAC WEST PARK HOUSING, L.P. STATE OF TEXAS § COUNTY OF NUECES § This HOME loan agreement ( "HOME LOAN AGREEMENT") is made and entered into by and between the Corpus Christi. Community Improvement Corporation ( "CCCIC"), a Texas nonprofit corporation, acting by and through its General Manager, and TX LULAC West Park Housing, L.P. ( "BORROWER'), a Texas limited partnership, acting by and through its General Partner, TIC LULAC West Park Development, L.L.G., a Texas limited liability . company, acting by and through its sole manager, LULAC West Park Apartments, a nonprofit charitable trust ("BORROWER's General Manager"). WHEREAS, CCCIC, through the City. of Corpus Christi, Texas ("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) ( "HOME Investment Partnerships Program ") for utilization in connection with its HOME Investment Partnerships Grant (HOME Program "); WHEREAS, the CCCIC, with the approval of the CITY's City Council, has adopted a budget: for such funds and has included' therein the expenditure of funds in the form of a loan ( "Loan ") to BORROWER for the project entitled, "LULAC West Park Apartments" ( "Project"); WHEREAS, CCCIC wishes to make the Loan to BORROWER in connection with the BORROWER's development of the Project; and WHEREAS, as a part of said Project implementation and management by BORROWER, it is proposed that the Loan be made to BORROWER for, among other things, construction of certain improvements uporr real property more particularly described in Exhibit "A" attached hereto, incorporated herein, and made a part hereof for all purposes (such real property and any and all improvements along with any construction done or hereafter to be done referred to herein as the "Property'), such Loan to be secured by, among other things, liens and security interests (the "CCCIC Liens ") against the Property. 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. 2007 -512 01/16/07 CCCIC dW 102407,dec Page 1 OM INDME X&M 0 with the final plans, specifications, shop drawings and other technical descriptions prepared for the construction done in connection with the Project, and all amendments and modifications thereof. 11. TERM 2.1 Except as otherwise provided for pursuant to the provisions hereof, this HOME LOAN AGREEMENT shall commence immediately upon its execution and shall terminate at the end of the Note term, excluding specific provisions that survive the termination or expiration of this HOME LOAN AGREEMENT. 2.2 Notwithstanding the provisions of paragraph 2.1 hereof, the completion date for construction work for the Project shall be no later than March 31, 2009. 111. RESPONSIBILITIES 3.1 BORROWER hereby accepts responsibility for the performance, in a satisfactory and efficient manner as determined by CCCIC, in its reasonable determination and/or discretion, of all services and activities set forth in this HOME LOAN AGREEMENT, 3.2 Unless written notification by BORROWER to the contrary is received and approved by CCCIC, BORROWER's General Manager shall be BORROWER's designated representative responsible for the management of all contractual matters pertaining to this HOME LOAN AGREEMENT. 3.3 CCCIC, acting through staff designated by the General Manager, is responsible for the administration of this HOME LOAN AGREEMENT_ 3.4 Communications between CCCIC and BORROWER shall be directed to the designated representatives of each as set forth in paragraphs numbered 3.2 and 3.3 hereinabove. IV. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS 4.1 BORROWER understands that funds provided to it pursuant to this HOME LOAN AGREEMENT are funds, which have been made available to CCCIC, through the CITY, by the federal government under HUD's HOME Investment Partnership Program (f=inal Rule) and in accordance with CITY's HUD - approved HOME Program Grant Application and with other specific assurances made and executed by CITY. BORROWER, therefore, assures and certifies that it will comply, in all material respects, with the requirements of the HOME Investment Partnership Program (Final Rule) and with all regulations promulgated thereunder, codified at Title 24 of the Code of f=ederal Regulations. BORROWER understands, however, that the HOME Investment Partnership Program (Final Rule) in no way is meant to constitute a complete compilation of all duties imposed upon BORROWER by law or administrative ruling, or to narrow the standards which BORROWER must follow. Accordingly, LULAC west Park Home Agmt Final 102407.doc Page 4 of 33 s BORROWER understands that if the regulations and issuances promulgated pursuant to the HOME Investment Partnership Program (Final Rule) are amended or revised, it shall comply with them or otherwise promptly notify CCCIC pursuant to the provisions of Article XLIV of this HOME LOAN AGREEMENT. 4.2 BORROWER understands that summaries of certain compliance requirements mandated by applicable laws or regulations are available from the CCCIC, and that BORROWER must at all times remain in compliance therewith; BORROWER further understands that said summaries are intended only as such and in no way are meant to constitute a complete compilation of all duties imposed upon BORROWER by law or administrative ruling, or to narrow the standards which BORROWER must follow. 4.3 BORROWER assures that all contractors and subcontractors receiving funds in connection with this Project are familiar with, and shall comply with, any and all applicable federal and state laws, rules and regulations 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. 4.4 BORROWER shall observe and comply with all Legal Requirements. V. BORROWER'S WARRANTIES AND REPRESENTATIONS 5.1 BORROWER hereby unconditionally warrants, represents, assures and guarantees unto CCCIC the following: (A) BORROWER possesses the legal authority, pursuant to any proper, appropriate and official motion, resolution or action passed or taken, to enter into this HOME LOAN AGREEMENT and the other Loan Documents and to perform the responsibilities herein required, and each such document constitutes a legal and binding obligation of, and is valid and enforceable against, BORROWER and the Property (as the case may be) in accordance with the terms thereof. (B) BORROWER represents, warrants, assures and guarantees that the individual executing this HOME LOAN AGREEMENT has full legal authority to execute this HOME LOAN AGREEMENT on behalf of BORROWER and to bind BORROWER to all terms, performances and provisions herein contained. (G) 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 CCCIC by or on behalf of 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 principals consistently LULACwest Park Home Agmt Final 902407.doo Page 5 of 33 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 charge has occurred in the financial condition reflected therein, since the elates thereof. (D) Except as may be otherwise set forth on any exhibit attached hereto, there are no actions, suits or proceedings of a material nature pending or, to BORROWER's knowledge, threatened against or affecting BORROWER, any Loan or Project guarantor or the Property, or involving the validity or enforceability of the Deed of Trust or the priority of the liens and security interests created therein; and no event has occurred (including specifically BORROWER's and all Loan and Project guarantors' execution of their respective security documents related to the Loan and BORROWER's consummation of the Loan) which will violate, be in conflict with, result in the breach of or constitute (with due notice, if applicable, 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. (E) BORROWER has (or prior to commencement of the construction referred to herein will have) (i) received all requisite building permits and approvals in connection with the Project, (ii) filed and 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 construction work done in connection with the Project, (F) All streets, easements, utilities and related services necessary for the construction done in connection with the Project and the operation thereof for their intended purpose are (or within thirty days prior to completion of construction work done in connection with the Project, will be) available to the boundaries of the Property, including, without limitation, potable water, storm and sanitary sewer, gas, electric and telephone facilities and garbage removal. (G) The Property has not been the site of any activity that would violate any past or present Legal Requirement, including, without limitation, any Environmental Law. Specifically, without limitation, (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 -ske 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 contain no LuLAC west Pads Hone Agmt Final i 02407.doe Page 6 of 33 Hazardous Materials and (v) there are no underground storage tanks located in, on or under the Property, and that CCCIC has obtained specific written assurance from the BORROWER to such effect. (H) BORROWER has delivered to CCCIC duly executed documentation creating and lawfully establishing BORROWER including evidence of any required filing with the Secretary of State. 5.2 In the event that a dispute arises as to the legal authority lo enter into this HOME LOAN AGREEMENT of either the BORROWER or the person signing on behalf of BORROWER, and same is not dismissed within ninety (90) days, CCCIC shall have the right, at its option, to either temporarily suspend or permanently terminate this HOME LOAN AGREEMENT. Should CCCIC suspend or permanently terminate this HOME LOAN AGREEMENT pursuant to this paragraph, BORROWER shall be liable to CCCIC for any money it has received from CCCIC for performance of any of the provisions hereof. Vl. MAINTENANCE OF EFFORT 6.1 BORROWER agrees that the funds and resources provided to it under the terms of this HOME LOAN 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, BORROWER had this HOME LOAN AGREEMENT not been executed. Vil. PERFORMANCE BY BORROWER 7.1 BORROWER, in accordance and compliance with the terms, provisions and requirements of this HOME LOAN AGREEMENT, shall manage, perform and provide all of the activities and services required under this HOME LOAN AGREEMENT in connection with the Project to CCCIC's satisfaction, in its reasonable determination and discretion. The funds available for utilization hereunder shall be expended only in accordance with the terms of this HOME LOAN AGREEMENT for the construction of the Project.. BORROWER shall submit a Project budget and construction schedule ( "Construction Schedulea) within ten (20) days of the execution of this HOME LOAN AGREEMENT. Vlll. DRAW REQUESTS 8.1 Provided no Event of Default (as defined in the Loan Documents) has occurred or remains uncured, the CCCIC will deliver up to $334,124 to BORROWER, through separate draw requests, to be used by the Borrower to construct the Project_ 1X. INTENTIONALLY LEFT BLANK f_UM West Park Home Agmt Final 102407A 00 Page 7 of 33 X. INTENTIONALLY LEFT BLANK XI. FURTHER REPRESENTATIONS, WARRANTIES AND COVENANTS 11.1 BORROWER further represents and warrants that: (A) All information, data or reports heretofore or hereafter provided to CCCIC is, shall be and shall remain complete and accurate in all material respects as of the date shown on the information, data or report, and that since said date shown, shall not have undergone any significant adverse change without prior, written notice to CCCIC; (B) Any supporting financial statements heretofore or Hereafter provided to CCCIC are, shall be and shall remain complete, and, accurate in all material respects and fairly reflective of the financial condition of BORROWER on the date shown on said statements and during the period covered thereby, and that since said date shown, except as provided by written notice to CCCIC, there has been no material change, adverse or otherwise, in the financial condition of BORROWER; (C) No litigation or proceedings are presently pending or threatened, to BORROWER's knowledge, against BORROWER; (D) None of the provisions contained herein contravene or in any way conflict with the authority under which BORROWER is doing business or with the provisions of any existing indenture or agreement of BORROWER; (E) BORROWER has the legal authority to enter into this HOME LOAN AGREEMENT and accept payments hereunder, and has taken all necessary measures to authorize such execution of contract and acceptance of payments pursuant to the terms and conditions hereof; and (F) None of the assets of BORROWER are currently and for the duration of this HOME LOAN AGREEMENT subject to any lien or encumbrance of any character, except for the other Liens (as such term is defined in the Deed of Trust) securing the obligations of Borrower, current taxes not delinquent and except as shown in the financial statements provided by BORROWER to CCCIC and except as described in the other Loan Documents. 11.2 Except as otherwise provided in the Deed of Trust' executed by BORROWER and dated as of even date herein, period of time that payment may be made hereunder and so remain unliquidated, BORROWER covenants that it shall not, consent of CCCIC's General Manager or his designate, s unreasonably delayed, withheld or conditioned: s Permitted Exceptions prior to and during the long as any payments without the prior written uch consent not to be LUTAC West Pak Home Agmt Final 102407,doo Page 8 of 33 (A) Further mortgage, pledge, or otherwise encumber or cause to be encumbered any of the assets of BORROWER now owned or hereafter acquired by it; (B) Permit any pre - existing mortgages, liens, or other encumbrances to remain on or attached to any of the assets of BORROWER which are allocated to the performance of this HOME LOAN AGREEMENT and with respect to which CCCIC has ownership hereunder, (C) Sell, assign, pledge, transfer or otherwise dispose of accounts receivable, notes or claims for money due or to become due; (D) Sell, convey, or lease all or any substantial part of its assets other than for residential use; or (E) Make any advance or loan to, or incur any liability as guarantor, surety or accommodation endorser for any other firm, person, entity or corporation. 11.3 Each of the foregoing representations, warranties and covenants shall be continuing and deemed repeated each time BORROWER submits a new request for payment in accordance with the terms, provisions and requirements of this HOME LOAN AGREEMENT. Xil. !MAINTENANCE OF RECORDS 12.1 BORROWER agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of any funds received pursuant to this HOME LOAN AGREEMENT. BORROWER further agrees: (A) That maintenance of said records shall be in compliance with all terms, provisions and requirements of this HOME LOAN AGREEMENT and with all applicable federal and state regulations establishing standards for financial management; and (13) That BORROWER's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. 12.2 BORROWER agrees to retain, for the period of time and under the conditions specified by CCCIC, all books, records, documents, reports, and written accounting policies and procedures pertaining to the operation of programs and expenditures of funds under this HOME LOAN AGREEMENT, 12.3 BORROWER agrees to include the substance of this Article in all of its sub- contracts. LULAC west Park Home Agmt Final 102407.doc Page 9 of 33 12.4 Nothing in this Article shall be construed to relieve BORROWER of: (A) Responsibility for retaining accurate and current records which clearly reflect the level and benefit of services provided under this HOME LOAN AGREEMENT; and (B) f=iscal accountability and liability pursuant to this HOME LOAN AGREEMENT and any Legal Requirements. XIII. ACCESSIBILITY OF RECORDS 13.1 At any reasonable time and as often as CCCIC may deem necessary, BORROWER shall make all of its records available to CCCIC, HUD, or any of their authorized representatives, and shall permit CCCIC, HUD, or any of their authorized representatives to audit, examine, and make excerpts and /or copies of same. BORROWER's records shall include, but shall not be limited to, the following: payroll, personnel and employment records, contracts, and invoices, XN. PERFORMANCE RECORDS AND REPORTS 14.1 As often and in such form as CCCIC may require, BORROWER shall furnish CCCIC such performance records and reports as deemed by CCCIC as pertinent to matters covered by this HOME LOAN AGREEMENT. 14.2 At a minimum, monthiy performance records and reports shall be submitted to CCCIC by BORROWER no later than the tenth (10th) calendar day of each month following execution of this HOME LOAN AGREEMENT. Records and reports shall be in accordance with the formats set forth by the CCCIC as required by federal regulation. 14.3 As of the commencement date of this HOME LOAN AGREEMENT, BORROWER agrees to gather, retain and make available to CCCIC information and data relative to all programmatic and financial reporting. XV. MONITORING AND EVALUATION 15.1 CCCIC may perform on -site monitoring of BORROl1{ER's performance pursuant to the terms of this HOME LOAN AGREEMENT. 15.2 With reasonable notice to BORROWER, and in accordance with the leases affecting the Property, BORROWER agrees that CCCIC and HUD may, at CCCIC's and HUD's sole discretion, carry out monitoring and evaluation activities so as to ensure compliance by BORROWER with this HOME LOAN AGREEMENT, with the Community Development Act, with the HOME regulations, with the program assurances and certifications executed by CCCIC, and with all other Legal Requirements. LULAC West Park Horne Agmt Final 102407.doc Page 10 of 33 15.3 BORROWER agrees to cooperate with CCCIC in the development, implementation, and maintenance of record - keeping systems and to provide CCCIC with any data determined by CCCIC, in its reasonable determination and discretion, to be necessary for its effective fulfillment of its monitoring and evaluation responsibilities. 15.4 BORROWER agrees that it will cooperate with CCCIC and HUD in such a way so as not to obstruct or delay CCCIC or HUD in its monitoring of BORROWER's performance and that it will designate one of its staff: to coordinate the monitoring process as requested by CCCIC and /or HUD staff. 15.5 After each official monitoring visit, CCCIG shall endeavor to provide BORROWER with a written report of monitoring findings. 16.6 Copies of any fiscal, management, or audit reports by any of BORROWER's funding or regulatory bodies shall be submitted by BORROWER to CCCIC's General Manager or designate within five (5) business days of receipt thereof by BORROWER. XVI. BONDING AND INSURANCE 16.1 BORROWER shall observe sound business practices with respect to providing such bonding and insurance as would provide adequate coverage for activities under this HOME LOAN AGREEMENT; provided, however, that the foregoing provision of this paragraph small in no way be construed or deemed to limit or diminish the insurance requirements set forth in the other Loan Documents with which BORROWER must comply and maintain. 15.2 Upon signing this HOME LOAN AGREEMENT, and annually thereafter for the duration of the Note, in addition to any other requirements and obligations of BORROWER in the other Loan Documents, BORROWER shall provide CCCIC with: (1) proof of timely (i.e. before past due) payment in full of all taxes assessed against the Property and (2) evidence of BORROWER's current payment status on all loans in connection with the Property and the Project. 16.3 Premiums chargeable for any and all insurance referred to in this Article be paid by BORROWER, at its own expense, unless otherwise authorized in writing by CCCIC, and such insurance shall be kept in force during and throughout the term of this HOME LOAN AGREEMENT. Such insurance shalt not be materially changed, canceled, terminated or otherwise allowed to expire unless thirty (30) calendar days advance written notice to such effect is submitted to CCCIC, and it shall be the responsibility of BORROWER to ensure such submission. 16.4 In addition to BORROWER's obligation set forth in the other Loan Documents to provide CCCIG with Certificates of Insurance evidencing the above- required insurances prior to the commencement of this HOME LOAN AGREEMENT and thereafter, BORROWER must provide to CCCIC certificates evidencing renewals or replacements of the policies of said insurance at least thirty (30) calendar days prior to the expiration LULAC West Park Home Agmt Final 102407.doc Page q I of 33 or cancellation of any such policies. Additionally, BORROWER shall provide CCCIC evidence of the payment of all premiums therefor. 16.5 Actual losses not covered by insurance as rewired by this Article shall not be allowable costs under this HOME LOAN AGREEMENT and shall therefore remain the sole responsibility of BORROWER_ 16.6 Should BORROWER, either directly or indirectly, engage in any construction, rehabilitation, or renovation type activities utilizing funds provided pursuant to this HOME LOAN AGREEMENT, then the current and specific bonding and compliance provisions required by the CCCIC at that time shall prevail. XVl I. INDEMNIFICATION 17.9 BORROWER covenants and agrees to FULLY INDEMNIFY and HOLD HARMLESS, the CCCIC and the elected officials, employees, officers, directorss, volunteers, agents and representatives of the CCCIC, individually or collectively, from and against any and all costs, claims, liens, damages, fosses, 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 CCCIC, directly or indirectly arising out of, resulting from or related to BORROWER's activities under this HOME LOAN AGREEMENT, including any acts or omissions of BORROWER, any agent, officer, director, representative, employee, consultant, contractor or subcontractor of BORROWER, and their respective officers, agents, employees, directors and representatives while in the exercise or performance of the rights or duties under this HOME LOAN AGREEMENT, all without, however, waiving any governmental immunity available to the CCCIC 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, EXPE)VSES, FEES, FINES, PENALTIES, ACTIONS, DEMANDS, CAUSES OF ACTION, LIABILITY ANDIOR SUITS ARISE IN ANY PART FROM TIME GROSS NEGLIGENCE OF CCCIC, THE ELECTED OFFICIALS, EMPLOYEES, OFFICERS, DIRECTORS, VOLUNTEERS, AGENTS, AND REPRESENTATIVES OF CCCIC, UNDER THIS HOME LOAM AGREEMENT. The provisions of this INDEMNIFICATION are solely for the benefit of the parties hereto and not intended to create LU AC West Park Horne Agrnt Final 102407.doe Page 12 of 33 or grant any rights, contractual or otherwise, to any other person or entity. BORROWER shall promptly advise the CCCIC in writing of any claim or demand against the CCCIC or BORROWER known to BORROWER related to or arising out of BORROWER's activities under this HOME LOAN AGREEMENT and shall see to the investigation and defense of such claim or demand at BORROWER's cost The CCCIC shall have the right, at its option and at its own expense, to participate in such defense without relieving BORROWER of any of its obligations under this paragraph_ 1x7.2 It is the EXPRESS INTENT of the parties to this HOME LOAN AGREEMENT that the INDEMNITY provided for in this Article (Article X/11} is an INDEMNITY extended by BORROWER to INDEMNIFY, PROTECT, and HOLD HARMLESS the CCCIG from the consequences of the CCCIC'S OWN NEGLIGENCE, provided however, that the INDEMNITY provided for in this Article SHALL APPLY only when the NEGLIGENT ACT of the CCCIC is a CONTRIBUTORY OR CONCURRENT CAUSE of the resultant injury, death, or damage, and shall have no application when the negligent act of the CCCIC is the sole cause of the resultant injury, death or damage. BORROWER further AGREES TO DEFEND, AT ITS OWN EXPENSE and ON BEHALF OF THE CCCIC AND IN THE NAME OF THE CCCIC, any claim or litigation brought against the CCCIC and its 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. 17.3 It is expressly understood and agreed that BORROWER is and shall be deemed to be an independent contractor and operator responsible to all parties for its respective acts or omissions and that CCCIC shall in no way be responsible therefor. XVIII. EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION 18.1 BORROWER shall comply with all applicable focal, state and federal equal employment opportunity and affirmative action roles, regulations and laws. 18.2 5o that CCCIC and HUD can investigate compliance with local, state and federal equal employment opportunity and affirmative action rules, regulations and laws, BORROWER shall furnish to CCCIC and HUD any and all information and reports LULAC West Park Home Agmt Fnaf 102407.doc Page 13 of $3 requested by CCCIC or HUD and shall permit access by CCCIC or HUD of any and all of its books, records and accounts. 18.3 In the event of non - compliance by BORROWER (or BORROWER's sub- contractors) with local, state and federal equal employment opportunity and affirmative action rules, regulations and laws, this HOME LOAN AGREEMENT may be canceled, terminated, or suspended by CCCIC, in whole or in part, and BORROWER may be barred from further contracts with CCCIC. XIX. NONDISCRIMINATION 19.1 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 BORROWER acknowledges is prohibited. XX. CONFLICT OF INTEREST 20.1 BORROWER covenants 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 HOME LOAN AGREEMENT. BORROWER further covenants that in the performance of this HOME LOAN AGREEMENT, no persons having such interest shall be employed or appointed as a member of its governing body or of its staff. 20.2 BORROWER further covenants 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. 20.3 No member of BORROWER'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 HOME LOAN AGREEMENT shall: (A) Participate in any decision relating to this HOME LOAN 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 HOME LOAN AGREEMENT or the proceeds thereof. LULAC West Park Home Agmt r:inat 102407.doo Page 14 of 33 XXI. NEPOTISM 29.1 BORROWER 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 BORROWER or who is a member of BORROWER's 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, haff- brother and half- sister. XXII. POLITICAL ACTIVITY 22.9 None of the performance rendered hereunder shall involve, and no portion of the funds received hereunder shall be used, either directly or indirectly, for any political activity including, but not limited to, an activity to further the election or defeat of any candidate for public office or for any activity undertaken to influence the passage, defeat or final content of local, state or federal legislation. XXlll. SECTARIAN ACTIVITY 23.1 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. XXIV. INTENTIONALLY DELETED XXV. PUBLICITY 25.9 When appropriate, as determined by and upon written approval of CCCIC, BORROWER shall publicize the activities conducted by BORROWER pursuant to the terms of this HOME LOAN AGREEMENT. In any news release, sign, brochure, or other advertising medium disseminating information prepared or distributed by or for BORROWER, however, mention shall be made of HUD funded CCCIC participation having made this Project possible. XXVI. PUBLICATIONS 26.1 All published materials and written reports submitted pursuant to this HOME LOAN 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. LU AC West Park Home Agmt FrnW 142407.doc Page 15 of 33 26.2 All published materials submitted pursuant to this Project shall include the following reference on the front cover or title page: "This document was prepared in accordance with the City of Carpus Christi's HOME Investment Partnership Program, with funding received from the United States Department of Housing and Urban Development." XXVII. RIGHTS TO PROPOSAL AND CONTRACTUAL MATERIAL 27.1 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 by BORROWER, shall, upon receipt, become the property of CCCIC. XXV111. FUNDING APPLICATIONS 28.1 BORROWER agrees to notify CCCIC each time BORROWER is preparing or submitting any application for funding (other than as set forth in the Deed of Trust's Permitted Encumbrances). When so preparing or submitting such an application, the following procedures shall be adhered to by BORROWER: (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 BORROWER to CCCIC; (B) Upon award or notice of award, whichever is sooner, BORROWER shall notify CCCIC 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 BORROWER to CCCIC, 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 CCCIC, 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. XXIX. CERTIFICATION REGARDING DEBARMENT SUSPENSION PROPOSED DEBARMENT AND OTHER RESPONSIBILITY MATTERS 29.1 BORROWER certifies, and the CCCIC relies thereon in execution of this HOME LOAN AGREEMENT, that neither BORROWER nor its Principals are presently LUi_AC West Park Home Aggmt Final 102407.doc Page 16 of 33 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. 29.2 "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). 29.3 BORROWER shall provide immediate written notice to CCCIC, in accordance with Article XLIV, if, at any time during the term of this HOME LOAN AGREEMENT, including any renewals hereof, BORROWER learns that its certification was erroneous when made or has become erroneous by reason of changed circumstances. 29.E BORROWER's certification is a material representation of fact upon which the CCCIC has relied in entering into this HOME LOAN AGREEMENT. Should CCCIC determine, at any time during this HOME LOAN AGREEMENT, including any renewals hereof, that this certification is false, or should it become false due to changed circumstances, the CCCIC may. terminate this HOME LOAN AGREEMENT in accordance with Article XXXIV Termination. XXX. SUB- CONTRACTING 30.1 Any other clause of this HOME LOAN AGREEMENT to the contrary notwithstanding, none of the work or services covered by this HOME LOAN AGREEMENT shall be sub - contracted without the prior written approval of CCCIC. 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 granted in writing by CCCIC, shall be subject by its terms to each and every provision of this HOME LOAN AGREEMENT. Compliance by subcontractors with this HOME LOAN AGREEMENT shall be the responsibility of BORROWER. 30.2 BORROWER. agrees that no sub - contract approved pursuant to this HOME LOAN AGREEMENT shall provide for payment on a "cost plus a percentage of cosf basis. 30.3 Despite CCCIC approval of a sub- contract, CCCIC shall in no event be obligated to any third party, including any sub - contractor of BORROWER, for performance of work or services, nor shall CCCIC funds ever be used for payment of work or services performed prior to the date of HOME LOAN AGREEMENT execution or extending beyond the date of HOME LOAN AGREEMENT expiration. XXXI. CHANGES AND AMENDMENTS 31.1 Except when the terms of this HOME LOAN AGREEMENT expressly provide otherwise, any alterations, additions, or deletions to the terms hereof shall be by WIAC West Part Home Agmt Final 102407.doc Page 17 of 33 amendment in writing executed by authorized representatives of both CCCIC and BORROWER. 31.2 Whenever and as often as deemed necessary by CCCIC, CCCIC may request and require changes to BORROWER's Construction Schedule required under this HOME LOAN AGREEMENT (to be submitted in accordance with Article VII); such changes as requested or required by CCCIC, however, must be by written amendment hereto and as provided for pursuant to the terms, provisions, and conditions of this HOME LOAN AGREEMENT. 31.3 Except pursuant to (a) prior submission by BORROWER of detailed information regarding budget and Project revisions, and (b) prior written approval thereof by CCCIC, BORROWER shall neither make transfers between or among line items approved within the budget categories set forth in the Construction Schedule nor shall BORROWER alter, add to, or delete from the Construction. Schedule. Instead, BORROWER shall request budget revisions in writing and in a form prescribed by CCCIC; such request for revisions, however, shall not increase the total monetary obligation of CCCIC as provided for pursuant to this HOME LOAN AGREEMENT, nor shall said revisions significantly change the nature, intent, or scope of the Project funded hereunder. 31.4 In the event that the level of funding for BORROWER or for the Project described herein is altered, BORROWER shall submit, immediately Upon request by CCCIC, revised budget and Project information so as to enable re- evaluation by CCCIC of the original funding levels set forth in the Construction Schedule. 31.5 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 HOME LOAN AGREEMENT and that any such changes shall be automatically incorporated into this HOME LOAN AGREEMENT without written amendment hereto, and shall become a part hereof as of the effective date of the rule, regulation or law. 31.6 BORROWER further agrees to notify CCCIC of any changes in personnel or governing board composition, such notice to be provided within five (5) business days of the change. XXXIL NOTICE AND CURE 32.1 Notwithstanding anything to the contrary set forth herein or in any of the other Loan Documents, where it is determined that BORROWER has failed to comply with any of the terms and/or conditions of this HOME LOAN AGREEMENT and/or any of the terms of any of the other Loan Documents, CCCIC shall notify BORROWER of such determination and shall grant BORROWER ten (10) days to complete corrective monetary violations or defaults and thirty (30) days to complete corrective non - monetary violations or defaults prior to enforcing any of it remedies set forth herein or in any of the other Loan Documents. LULAC West Park Home Agmt Final 102407.doc Page 18 of 33 XXXIII. SUSPENSION OF FUNDING 33.1 Upon reasonable determination by CCCIC of BORROWER's failure to timely and properly perform pursuant to the provisions of this HOME LOAN AGREEMENT Beyond any applicable notice and cure period, or of any of the other Loan Documents beyond any applicable notice and cure period, CCCIC, without limiting or waiving any rights it may otherwise Dave, may, at its discretion, withhold any, all and further payments to BORROWER. 33.2 The period of funding suspension shall be of such duration as CCCIC 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 CCCIC determine that the default or deficiency has been cured, BORROWER may, at CCCIC's option, be restored to full compliance status and paid all eligible funds withheld during the suspension period; or (B) Should CCCIC determine continued non - compliance, the provisions of Article XXXIV hereunder may be effectuated. XXX1V. TERMINATION 34.1 "Termination" of this HOME LOAN AGREEMENT shall mean termination by expiration of the HOME LOAN AGREEMENT term or earlier termination pursuant to any of the provisions hereof. 34.2 CCCIC may terminate this HOME LOAN AGREEMENT for any of the following reasons: (A) Neglect or failure by BORROWER to perform or observe any of the terms, conditions, covenants or guarantees of 1) this HOME LOAN AGREEMENT, 2) any of the other Loan Documents, or 3) any other valid, written contract or amendment between CCCIC and BORROWER, beyond any applicable notice and cure period; (B) Termination or reduction of funding of the Project by HUD; (C) Failure by BORROWER to timely cure any default or deficiency basis for suspension of funding hereunder within any applicable notice and cure period; (D) Finding by CCCIC that BORROWER: (1) is in such unsatisfactory financial condition as to endanger performance under this HOME LOAM AGREEMENT, including, but not limited to: LULAC West Park Horne Agmt Final 1 D2407.doc Page 19 of 33 (a) The apparent inability of BORROWER to meet its financial obligations; (b) Items that reflect detrimentally on the credit worthiness of BORROWER, including, but not limited to, liens, encumbrances, etc., on the assets of BORROWER; (2) has allocated inventory to this HOME LOAN AGREEMENT materially exceeding reasonable requirements; or (3) is delinquent, in the ordinary course of business, in the payment of taxes or in the payment of costs of performance of or related to this HOME LOAN AGREEMENT or the Project; (E) Appointment of a trustee, receiver or liquidator for all or a material part of BORROWER's Property, -or institution of bankruptcy, reorganization, rearrangement of or liquidation proceedings by or against BORROWER, and the same is not dismissed within ninety (90) days, (1=) The entry by a court of competent jurisdiction of a final order providing for the modification or alteration of the rights of BORROWER's creditors; (G) Inability by BORROWER to conform to changes in local, state and federal rules, regulations and laws as provided for in Article IV and in paragraph number 31.5 of this HOME LOAN AGREEMENT and all Legal Requirements; and (H) Violation by BORROWER of any rule, regulation or law to which BORROWER is bound or shall be bound under the terms of this HOME LOAN AGREEMENT, 34.3 BORROWER may terminate this HOME LOAN AGREEMENT for any of the following reasons: (A) Cessation of outside funding upon which BORROWER depends for performance hereunder; BORROWER may opt, however, within the limitations of this HOME LOAN AGREEMENT and with the written approval of CCCIC, to seek an alternative funding source, provided that the termination of funding by the initial outside source was not occasioned by a breach of agreement as defined herein or as defined in a contract between BORROWER and the funding source in question; or (B) Upon the dissolution of the BORROWER organization, provided such dissolution was not occasioned by a breach of this HOME LOAN AGREEMENT, LULAC West Park Home Agmt Final 102407.dw Page 20 of 33 34.4 Upon a decision to terminate by either CCCIC or BORROWER, written notice of such, and the effective date thereof, shall be immediately provided to the other party. 34,5 Upon receipt of notice to terminate, BORROWER shall cancel, withdraw, or otherwise terminate any and all outstanding orders and subcontracts, which relate to the performance of this HOME LOAN AGREEMENT and the Project. To this effect, CCCIC shall not be liable to BORROWER or BORROWER's creditors for any expenses, encumbrances, or obligations whatsoever incurred upon and after the date of termination or which was not canceled, withdrawn, or otherwise terminated by BORROWER in accordance with the provisions of this paragraph. 34.6 Upon receipt of notice to terminate, 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 BORROWER under this HOME LOAN AGREEMENT shall, at the option of CCCIC, and in accordance with Article XXVIi hereof, become the property of CCCIC and shall, if requested or agreed to by CCCIC, be delivered by BORROWER to CCCIC in a timely and expeditious manner. 34.7 Within thirty (30) calendar days after receipt of notice to terminate, BORROWER shall submit a statement to CCCIC, indicating in detail the services performed under this HOME LOAN AGREEMENT prior to the effective date of termination. 34.8 Any termination of this NOME LOAN AGREEMENT as herein provided shall not relieve BORROWER from the payment of any sum(s) that shall then be due and payable or become due and payable to CCCIC hereunder or as provided for at law or in equity, or any claim for damages then or theretofore accruing against BORROWER hereunder or by law or in equity, and any such termination shall not prevent CCCIC from enforcing the payment of any such sum(s) or claim for damages from BORROWER. Instead, all rights, opfions, and remedies of CCCIC contained in this HOME LOAN AGREEMENT shall be construed and held to be cumulative and no one of them shall be exclusive of the other, and CCCIC 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 HOME LOAN AGREEMENT. 34.9 Should this HOME LOAN AGREEMENT be terminated by either party hereto for any reason, if the work required hereunder of BORROWER is not fully completed to the reasonable satisfaction of CCCIC in accordance with the tenns of this HOME LOAN AGREEMENT, BORROWER shall refund any and all sums of money paid by CCCIC to BORROWER within ten (10) business days of CCCIC's written request therefor. 34.10 Upon termination of this HOME LOAN AGREEMENT by CCCIC Lander paragraph number 34.2(A) hereof, BORROWER shall be barred from future contracts with CCCIC absent the express written consent of the General Manager, or his designate, to contract with CCCIC. LULAC West Park Home Agmt Final 102407.doo Page 21 of 33 XXXV. NOTIFICATION OF ACTION BROUGHT 35.9 In the event that any claim, demand, suit, proceeding, cause of action or other action (hereinafter collectively referred to as "claim ") is made or brought against BORROWER, BORROWER shall give written notice thereof to CCCIC within five (5) business days after itself being notified. BORROWER's notice to CCCIC shall state the date and hour of notification to BORROWER 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 either personally or by mail in accordance with Article XL1V of this HOME LOAN AGREEMENT. XXXVI. ASSIGNMENTS 36.1 BORROWER shall not transfer, pledge, or otherwise assign this HOME LOAN AGREEMENT, any interest in and to same, or any claim arising thereunder, without first procuring the written approval of CCCIC's General Manager. Any attempt at transfer, pledge, or assignment shall be void ab inifio and shall confer no rights upon any third person. XXXVII. NO WAIVER OF PROVISIONS OR COMPLIANCE 37.9 Any failure by CCCIC to insist, or any election by CCCIC not to insist, upon the strict performance by BORROWER or any guarantor of the Project or the Loan, 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 CCCIC shall have the right at any time thereafter to insist upon strict performance by BORROWER of any and ali of same. Additionally, no advance by CCCIC of any Loan proceeds shall in any way preclude CCCIC from thereafter declaring a failure by BORROWER to comply with any of the terms, provisions or conditions of the Loan Documents an event of default or, as applicable, a reason for termination in accordance with Article XXXIV hereof. XXXVIII. SEVERABILITY OF PROVISIONS 38.1 If any clause or provision of this HOME LOAN 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 HOME LOAN 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 HOME LOAN AGREEMENT that is invalid, illegal, or unenforceable, there be adder) as a part of the HOME LOAN AGREEMENT a clause or provision as similar in terms to LULAC West Park Home Agmt Final 102407.doe Page 22 of 33 such invalid, illegal or unenforceable clause or provision as may be possible, legal, valid and enforceable. MIX RENEWAL NOT AUTOMATIC 39.1 Funding under this HOME LOAN AGREEMENT and any amendments or waivers that may be made or granted hereunder shall not be automatically renewed on the anniversary date of this HOME LOAN AGREEMENT. To the contrary, funding of any project requiring contract execution shall be achieved only pursuant to approval of the City Council of the City of Corpus Christi and the governing body of the CCCIC. JCL. NON - WAIVER OF PERFORMANCE 40.1 No waiver by CCCIC of a breach of any of the terms, conditions, covenants or guarantees of this HOME LOAN 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 CCCIC to insist in any one or more cases upon the strict performance of any of the covenants of this HOME LOAN 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 opt'son. In fact, no waiver, change, modification or discharge by either party hereto of any provision of this HOME LOAN AGREEMENT shall be deemed to have been made or shall be effective unless expressed in writing and signed by the party to be charged. 40.2 No act or omission of CCCIC shall in any manner impair or prejudice any right, power, privilege, or remedy available to CCCIC hereunder or by law or in equity, such rights, powers, privileges, or remedies to be always specificaliy preserved hereby. 40.3 No representative or agent of CCCIC may waive the effect of the provisions of this Article. XLI. SPECIAL CONDITIONS 41.1 BORROWER shall prepare accurate and complete monthly performance measures reports and submit to the CCCIC on or before the tenth (10 day of each month, with each report reflecting the previous month. Each such report shall contain details of all inputs (i.e., resources) and outputs (i.e., utilization of resources) in conjunction with efficiency and effectiveness measures regarding the Project. The form of each report must meet the approval of CCCIC, and BORROWER agrees to make any and all changes to such form as may be recommended by CCCIC, as well as provide additional information in connection with such reports as may be requested by CCCIC. 41.2 BORROWER shall ensure that all professional and contractual services in connection with Project implementation shall be procured in accordance with LULAG west Park Home Agent Final 902407.dcc Page 23 of 33 24 CFR 570, Part 85, The Common Rule, Procurement, Competitive Standards and all other federal laws and regulations applicable to the Project. 41.3 INTENTIONALLY LEFT BLANK. 41.4 INTENTIONALLY LEFT BLANK. 41.5 BORROWER understands and acknowledges that CCCIC shall not be liable for any cost, or portion thereof, which is or was incurred in connection with an activity of BORROWER where prior written authorization from CCCIC is required for the activity and such authorization was not first procured, or CCCIC has requested that BORROWER furnish data concerning an activity prior to proceeding further therewith and BORROWER nonetheless proceeds without first submitting the data and receiving approval thereof. 41.6 BORROWER shall forward to CCCIC for approval a completed copy of Homeownership Assistance/Rental Housing Project Setup Report (HUD form 40094) for the HOME Program Integrated Disbursement Information System (1DIS) for each activity under this HOME LOAN AGREEMENT, prior to initiating any activities or incurring any Project activity cost. 41.7 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. BORROWER agrees to include said wage requirements in all bid advertisements and shall require same in all relevant third -party contracts, prior to the commencement of any construction activity. 41.8 BORROWER shall accurately complete a Project Completion Report (HUD form 40096) upon completion of each Project activity, and forward the original completed form to the CCCIC within thirty (30) business days after BORRONER's receipt of the final remittance of HOME LOAN AGREEMENT funds by CCCIC for such Project activity. BORROWER understands and acknowledges that new Project Set -up Reports will not be processed by CCCIC if there are any outstanding Project Completion Reports due. 41.9 BORROWER shall ensure that all ten (10) units rehabilitated with assistance made available to BORROWER by CCCIC under this HOME LOAN AGREEMENT shall comply with the provisions set forth in 24 CFR 92.251, Property Standards and shall comply with the CITY's City codes. 41.10 BORROWER shall complete all Site Specific Environmental Review Records for each property /parcel of this Project and submit such records to CCCIC. CCCIC must approve in writing such records prior to any Project activity cost being incurred. LULAC West Park dome Agmt Final 102407.doo Page 24 of 33 41.11 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, rehabilitation, 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. 41.12 BORROWER understands and agrees that all ten (10) HOME assisted units in the Project herein, shall only be ]eased to and occupied by households that are eligible as low- income families, in accordance with HUD Section 8 Income Guidelines. 41.13 BORROWER understands that all ten (10) HOME assisted units in the Project shall be designated as floating units. 41.14 BORROWER understands and agrees that, pursuant to 24 CFR 92,252, its maximum or High rents for its HOME assisted affordable units in the Project herein shall be the lesser of: (A) The fair market. rent for existing housing for comparable units in the area as established by HUD under 24 CFR 888.111; or (B) A rent that does not exceed thirty percent (30 %) of the adjusted income of a family whose annual income equals sixty -five percent (65 %) of the median income for the area, as determined by HUD, with adjustments for the number of bedrooms in the unit. 41.15 BORROWER shall, in accordance with all applicable HOME regulations, determine and utilize rent schedules and limits that ensure that the rent charged for all Project units remains in compliance with the HOME regulations and standards during the period of affordability. Furthermore, BORROWER shall lease to qualified families not less than the minimum allowed percentage of Low and High rent HOME assisted affordable units required under the HOME regulations during the period of affordability. 41.16 BORROWER further understands and agrees that Low rent HOME assisted affordable units must meet one (1) of the following Low. HOME rent requirements: (A) The rent shall not exceed thirty percent (30 %) of the annual income of a family whose income equals fifty percent (50 %) of the median income for the area, as determined by HUD, with adjustments for smaller and larger families; or (B) The rent shall not exceed thirty percent (30 %) of the family's adjusted monthly income. If the unit receives Federal or State project -based rental subsidy and the very low - income family pays, as a contribution toward rent, not more than thirty percent (30 %) of the family's adjusted income, then the maximum rent (i.e., tenant contribution plus project -based recital LULAC West Park Home Agmt Fna[ I G2407.doc Page 25 of 33 subsidy) is the rent allowable under the Federal or State project -based rental subsidy program. 41.17 INTENTIONALLY LEFT BLANK. 41.18 INTENTIONALLY LEFT BLANK. 41.19 BORROWER 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. 41.20 BORROWER understands and agrees that HOME assisted units shall meet the affordability requirements for not less than ten (10) years, commencing upon project completion, such date presently unknown but is anticipated to be no later than December 31, 2009. 41.21 CCCIC shall provide BORROWER 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 CCCIC upon HUD's determination of fair market rents and median incomes) in accordance with this HOLE LOAN AGREEMENT. BORROWER shall annually provide CCCIC with documentation on rents and occupancy of HOME assisted units to demonstrate compliance. 41.22 BORROWER understands and agrees that any increase in rents for HOME assisted units is subject to the provisions of outstanding leases, and in any event, BORROWER shall provide tenants of those units not less than thirty (30) days prior written notice before implementing any increase in rents. 41.23 BORROWER understands and agrees that the income of each tenant shall be determined initially in accordance with 24 CFR 92.203(a)(1)(i). BORROWER shall annually re- examine each tenant's annual income during the period of affordability in accordance with one of the options in 24 CFR 92.203. 41.24 BORROWER shall ensure that the ten (10) 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 CCCIC are being taken to ensure that all vacancies are filled in accordance with 24 CFR 92.252 until the noncompliance is corrected. 41.25 BORROWER shall ensure that tenants 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 LtltAC west Park Home Agmt Final 102407.doo Page 26 of 33 U.S.C. 42) must pay rent governed by section 42. If BORROWER has designated the HOME units as floating pursuant to Section 41.13 herein, BORROWER shall not require tenants who no longer qualify as low- income to pay, as rent, an amount that exceeds the market rent for comparable, unassisted units in the neighborhood. 41.26 BORROWER shall submit to CCCIC a post - construction appraisal promptly upon completion of the Project. 41.27 BORROWER acknowledges, understands and agrees to comply with the following federal regulations as promulgated in Section 3 Clause of the Housing and Urban Development Act of 1968, as amended, if applicable: (A) The work to be performed under this HOME LOAN 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 HOME LOAN AGREEMENT agree to comply with HUD's regulations in 24 CFR Part 135, which implement Section 3. As evidenced by their execution of this HOME LOAN AGREEMENT, the parties to. this HOME LOAN AGREEMENT certify that they are under no contractual or other impediment that would prevent them from complying with the Part 135 regulations. (C) The BORROWER agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the contractor's commitments under this Section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. (D) BORROWER agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 CFR Part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this 'Section 3 clause upon a finding that the subcontractor is in violation of the regulations in 24 CFR Part 135. LULAC West Park Home Agmt Final 402407.doc Page 27 of 33 BORROWER will not subcontract with any subcontractor where BORROWER has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR Part 135. (E) BORROWER 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 wham 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, terminaton of this HOME LOAN 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. 460e) also applies to the worst to be performed under this HOME LOAN AGREEMENT. Section 7(b) requires that to the greatest extent feasible (i) preference and opportunities for training and employment small be given to Indians, and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian -owned Economic Enterprises. Parties to this contract that are subject to the 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). XLIL ENTIRE -AGREEMENT 42.1 This HOME LOAN 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 HOME LOAN AGREEMENT shall be deemed to exist or to bind the parties hereto unless same be in writing, dated subsequent to the date hereof, and duly executed by the parties. XLII1. INTERPRETATION 43.1 In the event any disagreement or dispute should arise between the parties hereto pertaining to the interpretation or meaning of any part of this HOME LOAN AGREEMENT or its governing rules, regulations, laws, codes or ordinances, CCCIC, as the party ultimately responsible to HUD for matters of compliance, shall have the final authority to render or secure an interpretation. LULAC West Park Home Agmt Final 102407.doc Page 28 of 33 XLIV. NOTICES 44.1 All notices, demands, requests or other communications to be sent by one party to the other hereunder or required by law shall be in writing and shall be deemed to have been validly given or served by delivery of the same in person to the intended addressee, or by depositing the same with Federal Express or another reputable private courier service for next business day delivery to the intended addressee at its address set forth below or at such other address as may be designated by such party as herein provided, or by depositing the same in the United States mail, postage prepaid, registered or certified mail, return receipt requested, addressed to the intended addressee at its address set forth below or at such other address as may be designated by such party as herein provided. 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 being deposited in the United States mail as required above. Rejection or other refusal to accept or the inability to 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. Service of any notice required by Texas Property Code Section 51.002, as the same may be amended, shall be effective when the requirements to that statute are met. The following are the addresses of CCCIC and BORR0WER for all purposes in connection herewith: CCCIC Corpus Christi Community Improvement Corporation Attn: General Manager 1201 Leopard St. Corpus Christi, TX 78401 With a copy to: City Attorney's Office Attn: City Attorney P. 0. Box 9277 Corpus Christi, TX 78459 -9277 BORROWER TX LULAC West Park Housing, L.P. 222 E. Houston Street, Suite 620 San Antonio, TX 78205 LULRC West Park Flame Agmt Final 102407.doc Page 29 of 33 With a copy to- John C. Shackelford 3333 Lee Parkway, Tenth Floor Dallas, TX 75219 And a copy to: Washington Mutual Bank Attn: Marvalette Hunter, VP Street Address City, State, ZIP With a copy to: WINSTEAD PC 919 Milam Street, Suite 2440 Houston, TX 77002 Attention. Isaac Johnson IV, Esq By giving to the other party hereto at least ten (10) days' prior, written notice thereof in accordance with the provisions hereof, the parties hereto shall have the right from time to time to change their respective addresses and each shall have the right to specify as its address any other address. XLV. PARTIES BOUND 45.1 This HOME LOAN 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. XLVI. GENDER: PLURALITY 46.1 Words of gender used in this HOME LOAN AGREEMENT shall be held and construed to include the other gender, and words in the singular number shall be held to include the plural, unless the context otherwise requires. XLVII. RELATIONSHIP OF PARTIES 47.1 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. LULAG west Park }come Agmt Final 102447.doo Page 30 of 33 47.2 It is expressly understood and agreed that BORROWER is and shall be deemed to be an independent contractor and operator responsible to all parties for its respective acts or omissions and that CCCIC shall in no way be responsible therefor. XLVIII. TEXAS LAW TO APPLY 48.1 THIS HOME LOAN AGREEMENT SHALL BE CONSTRUED UNDER AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AND ALL OBLIGATIONS OF THE PARTIES CREATED HEREUNDER ARE PERFORMABLE IN NUECES COUNTY, TEXAS. XLIX. CAPTIONS 49.1 The captions contained in this HOME LOAN AGREEMENT are for convenience of reference only, and in no way limit or enlarge the terms and/or conditions of this HOME LOAN AGREEMENT. XLX. SUBORDINATION 54.1 This Agreement is subject to the conditions and provisions of that Subordination Agreement dated as of XXX among Washington Mutual, the CCCIC, and the Borrower. LULAC West Park Home Agmt Final 102407.doo Page 31 flf 33 I ,1 5 EXECUTED in triplicate this the AS LENDER: ATTEST: day of 2007. &= Sy n - - Armando Chapa Secretary CORPUS CHRISTI COMMUNITY IMPROVEMENT CORPORATION George Noe General Manager 61 '= AUT!#IRUks AS BORROWER: ly MI NCI ,. P TX LULAC Test Park Housing, L.P., a Texas limited partnership r By: TX LULAC (NEST PARK DEVELOPMENT, L.L.C., a Texas limited liability company, its general partner Title: ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF WGrr § This instrument was acknowledged bef re me on this �V day of pY , 2007, by &rnir'a !4. t0rnboa , as the _ re's i den 4— _ of LULAC WEST PARK DEVELOPMENT, L.L.C., a Texas limited liability compan cting as the general partner of TX LULAC West Park Housing L.P., a Texas limite rtnership, on bei a ofeartnership. A r r t IA[ I�IIA G . RICE Notary L"2#p Pubr STATE (3F 7EXAy menl Comm. Ev 03 -08 -2008 Exhibit "A" -- Property Description C, STA LULAC West Park Home Agent Pint 102407.doe Page 32 of 33 EXHIBIT "A" Property Description Lot 3, Riverview Estates, being 10.223 acres, more or less, as shown by the map or plat of record filed Volume 35, Page 74, of the Map Records of N'ueces County, Texas, and in the official real property deed records of Nueces County, Texas, and commonly !mown by its street address of 10702 Interstate Highway 37, Corpus Christi, Nueees County, Texas ( "Property "). LULAC West Park Home Agmt Final 102407.doc Pap 33 of 33