HomeMy WebLinkAboutC2011-248 - 5/10/2011 - NAHOME LOAN AGREEMENT
BETWEEN THE
CORPUS CHRISTI COMMUNITY IMPROVEMENT CORPORATION
AND
COSTA TARRAGONA II, LTD.
STATE OF TEXAS §
COUNTY OF NUECES §
This HOME LOAN AGREEMENT is hereby made and entered into by and between the
Corpus Christi Community Improvement Corporation (hereinafter referred to as the "CCCIC "), a
Texas nonprofit corporation, acting by and through its General Manager, and Costa Tarragona II,
Ltd. (hereinafter referred to as `BORROWER "), a Texas limited partnership, acting by and
through its General Partner, CCHFC Costa Tarragona II, LLC, a Texas limited liability
company, acting by and through its sole member, Corpus Christi Housing Finance Corporation, a
Texas corporation, acting by and through its General Manager, hereto duly authorized and
hereinafter referred to as BORROWER's General Manager.
. WHEREAS, CCCIC, through the City of Corpus Christi, Texas (hereinafter referred to
as "CITY "), has received certain funds from the U.S. Department of Housing and Urban
Development ( "HUD ") under Title 11 of the National Affordable Housing Act of 1990, (P.L.
101 -625) (hereinafter referred to as "HOME ") for utilization in connection with its HOME
Investment Partnerships Grant (hereinafter referred to as "HOME ") Program; and
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 (the
"Loan ") to BORROWER for the project entitled, "Villas of Costa Tarragona II" (hereinafter
referred to as "Project "); and
WHEREAS, the CCCIC is responsible for the administration and monitoring of the
Project and all matters pertaining thereto; and
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 upon 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:
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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.
L DEFINITIONS
1.1 For purposes of this HOME LOAN AGREEMENT, in addition to the definitions and
references set forth throughout this HOME LOAN AGREEMENT, the following terms shall
have the meanings indicated:
(A) `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.
(B) "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, (i) the Resource
Conservation and Recovery Act, as amended by the Hazardous and Solid Waste
Amendments of 1984, as now or hereafter amended ( "RCRA ") (42 U.S.C. §6901,
et. seq.); (ii) the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, as now or hereafter amended ( "CERCLA ") (42
U.S.C. §9601, et. seq.); (iii) the Clean Water Act, as now or hereafter amended
( "CWA ") (33 U.S.C. §1251, et. seq.); (iv) the Toxic Substances Control Act, as
now or hereafter amended ( " TSCA ") (15 U.S.C. §2601, et. seq.); (v) the Clean
Air Act, as now or hereafter amended ( "CAA ") (42 U.S.C. §7401, et. seq.), Texas
Solid Waste Disposal Act (V.T.C.A. Health and Safety Code §361.001, et. seq.)
and the Texas Water Code (V.T.C.A. Water Code §26.001- 26.407); (vi) all
regulations promulgated under any of the foregoing; (vii) any Iocal, state or
federal law, statute, regulation or ordinance analogous to any of the foregoing;
and (viii) any other federal, state or local law (including any common law),
statute, regulation or ordinance regulating, prohibiting or otherwise restricting the
placement, discharge, release, threatened release, generation, treatment or
disposal upon or into any environmental media of any substance, pollutant or
waste which is now or hereafter classified or considered to be hazardous or toxic
to human health or the environment.
(C) "Environmental Report" — A report prepared by a reputable engineer or other
party satisfactory to CCCIC, in its reasonable determination and/or discretion, and
in such detail as CCCIC may require, indicating that no part of the Property is
contaminated with Hazardous Materials or is subject to undue risk of
contamination by Hazardous Materials.
(D) "Governmental Authority" — Any and all courts, boards, agencies, commissions,
offices or authorities of any nature whatsoever for any governmental unit (federal,
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state, county, district, municipal or otherwise), whether now or hereafter in
existence, having jurisdiction over the applicable matter.
(E) "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.
(F) "Legal Requirements" — (i) any and all present and future final non - appealable
judicial decisions which have proper jurisdiction, statutes, rulings, rules,
regulations, permits, certificates or ordinances of any Governmental Authority in
any way applicable to BORROWER, any guarantor of the Project, the Loan, or
the Property, including, without limitation, the ownership, use, construction,
rehabilitation, development, occupancy, possession, operation, maintenance,
alteration, repair or reconstruction thereof, (ii) any and all covenants, conditions
and restrictions contained in any deed or other form of conveyance or in any other
instrument of any nature that relate in any way or are applicable to the Property or
the ownership, use, construction, occupancy, possession, operation, maintenance,
alteration, repair or reconstruction thereof, (iii) BORROWER's or any Project or
Loan guarantor's presently or subsequently effective bylaws and articles of
incorporation or partnership, limited partnership, joint venture, trust or other form
of business association agreement, (iv) any and all leases related to the Property
or the Project, (v) other contracts, whether written, of any nature that relate in any
way to the Property or the Project and to which BORROWER or any Loan or
Project guarantor may be bound.
(G) "Loan Documents" — (i) this HOME LOAN AGREEMENT, (ii) that certain "Real
Estate Lien Note" (the "Note "), of even date herewith, signed by BORROWER,
evidencing its obligation for payment to CCCIC in connection with the Loan, (iii)
that certain "Third Lien Leasehold Deed of Trust" (the "Deed of Trust") of even
date herewith, signed by BORROWER and securing payment of the Note, (iv)
that certain "Assignment of Leases and Rentals," of even date herewith, signed by
BORROWER in connection with the Project, and (v) that certain "Declaration of
Restrictive Covenant of Affordability," of even date herewith, signed by
BORROWER in connection with the Project.
(H) "Material" — (i) as to monetary matters, any amount in excess of $10,000.00 or
(ii) as to all other matters, any fact or circumstance without which CCCIC, in its
reasonable opinion, would not have made the Loan.
(I) "Plans" — Any and all written contracts and agreements between the CCCIC -
approved architect for the Project and BORROWER, together with the final plans,
specifications, shop drawings and other technical descriptions prepared for the
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construction done in connection with the Project, and all amendments and
modifications thereof.
II. 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.
2.2 Notwithstanding the provisions of paragraph 2.1 hereof, the completion date for
construction work for the Project shall be no later than December 31, 2012.
III. 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 the HOME Investment Partnership Program (Final Rule) and in
accordance with CITY's HUD- approved 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
Federal 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, 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 XLI of this HOME LOAN AGREEMENT.
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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 contractor 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.
(C) 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 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.
(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
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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/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 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 -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, 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 to 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
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CCCIC permanently terminate this HOME LOAN AGREEMENT pursuant to this paragraph,
however, BORROWER shall be liable to CCCIC for any money it has received from CCCIC for
performance of any of the provisions hereof.
VI. 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.
VII. 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 /or discretion. The funds
available for utilization hereunder shall be expended only in accordance with the terms of this
HOME LOAN AGREEMENT for the acquisition and construction of the Project. BORROWER
shall submit a Project budget and construction schedule ( "Construction Schedule ") within thirty
(30) days of the execution of this HOME LOAN AGREEMENT.
VIII. 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 $777,964.00 to the BORROWER be used by the
BORROWER to construct the Project.
IX. FURTHER REPRESENTATIONS, WARRANTIES AND COVENANTS
9.1 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 the 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;
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(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 to Borrower's
knowledge 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.
9.2 Except as otherwise provided in the Deed of Trust's Permitted Exceptions executed by
BORROWER and dated as of even date herein, and/or an Amended and Restated Agreement of
Limited Partnership ( "the Partnership Agreement "), prior to and during the period of time that
payment may be made hereunder and so long as any payments remain unliquidated,
BORROWER covenants that it shall not, without the prior written consent of CCCIC's General
Manager or his designate, such consent not to be unreasonably delayed, withheld or conditioned:
(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) Except as otherwise allowed in the Loan Documents, 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) Except as required by senior lenders, sell, assign, pledge, transfer or otherwise
dispose of accounts receivable, notes or claims for money due or to become due;
(D) Except as otherwise allowed in the Loan Documents, sell, convey, or lease all or
any substantial part of its assets other than for residential use; or
(E) Except as required pursuant to the Partnership Agreement and senior lenders,
make any advance or loan to, or incur any liability as guarantor, surety or
accommodation endorser for any other firm, person, entity or corporation.
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9.3 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.
X. MAINTENANCE OF RECORDS
10.1 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
(B) That BORROWER's record system shall contain sufficient documentation to
provide in detail full support and justification for each expenditure.
10.2 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.
10.3 BORROWER agrees to include the substance of this Article in all of its sub - contracts.
10.4 Nothing in this Article shall be construed to relieve BORROWER o£
(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) Fiscal accountability and liability pursuant to this HOME LOAN AGREEMENT
and any Legal Requirements.
XI. ACCESSIBILITY OF RECORDS
11.1 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.
XII. PERFORMANCE RECORDS AND REPORTS
12.1 As often and in such form as CCCIC may reasonably require, BORROWER shall furnish
CCCIC such performance records and reports as deemed by CCCIC as pertinent to matters
covered by this HOME LOAN AGREEMENT.
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12.2 At a minimum, monthly performance records and reports shall be submitted to CCCIC by
BORROWER no later than the tenth (10th) calendar day of the month following. Records and
reports shall be in accordance with the formats set forth by the CCCIC as required by federal
regulation.
12.3 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.
XIII. MONITORING AND EVALUATION
13.1 CCCIC shall perform on -site monitoring of BORROWER's performance pursuant to the
terms of this HOME LOAN AGREEMENT.
13.2 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 HOME regulations, with the
program assurances and certifications executed by CCCIC, and with all other Legal
Requirements.
13.3 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 /or discretion, to be necessary for its effective
fulfillment of its monitoring and evaluation responsibilities.
13.4 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.
13.5 After each official monitoring visit, CCCIC shall provide BORROWER with a written
report of monitoring findings.
13.6 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.
XIV. BONDING AND INSURANCE
14.1 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 shall
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.
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14.2 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, if any, and (2) reasonable
evidence of BORROWER's current payment status on all loans in connection with the Property
and the Project.
14.3 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 shall not be materially changed, canceled, terminated or
otherwise allowed to expire unless ten (10) calendar days advance written notice to such effect is
submitted to CCCIC, and it shall be the responsibility of BORROWER to ensure such
submission.
14.4 In addition to BORROWER's obligation set forth in the other Loan Documents to
provide CCCIC 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 ten (10) calendar days prior to the expiration or cancellation of any such
policies. Additionally, BORROWER shall provide CCCIC evidence of the payment of all
premiums therefor.
14.5 Actual losses not covered by insurance as required by this Article shall not be allowable
costs under this HOME LOAN AGREEMENT, and shall therefore remain the sole responsibility
of BORROWER.
14.6 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 at that time shall prevail.
XV. INDEMNIFICATION
15.1 BORROWER covenants and agrees to FULLY INDEMNIFY and HOLD
HARMLESS, the CCCIC and the elected officials, employees, officers, directors,
volunteers, agents and representatives of the CCCIC (the "Indemnity'),
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
CCCIC, directly or indirectly arising out of, resulting from or related to
BORROWER's activities under this HOME LOAN AGREEMENT, including
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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,
EXPENSES, FEES, FINES, PENALTIES, ACTIONS, DEMANDS, CAUSES
OF ACTION, LIABILITY AND /OR SUITS ARISE IN ANY PART FROM THE
NEGLIGENCE OF CCCIC, THE ELECTED OFFICIALS, EMPLOYEES,
OFFICERS, DIRECTORS, VOLUNTEERS, AGENTS, AND
REPRESENTATIVES OF CCCIC, UNDER THIS HOME LOAN
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. 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.
15.2 It is the EXPRESS INTENT of the parties to this HOME LOAN
AGREEMENT that the INDEMNITY provided for in this Article (Article X F9 is
an INDEMNITY extended by BORROWER to INDEMNIFY, PROTECT, and
HOLD HARMLESS the CCCIC from the consequences of the CCCIC 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.
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HOME Loan Agreement
15.3 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.
XVI. EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION
16.1 BORROWER shall comply with all applicable local, state and federal equal employment
opportunity and affirmative action rules, regulations and laws.
16.2 So 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 requested by CCCIC or HUD,
and shall permit access by CCCIC or HUD of any and all of its books, records and accounts.
16.3 In the event of non - compliance by BORROWER (or BORROWER'S subcontractors)
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.
XVIL NONDISCRIMINATION
17.1 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.
XVIII. CONFLICT OF INTEREST
18.1 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.
18.2 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.
18.3 No member of CCCIC'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:
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HOME Loan Agreement
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(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.
XIX. NEPOTISM
19.1 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, half - brother and half - sister.
XX. POLITICAL ACTIVITY
20.1 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.
XXI. SECTARIAN ACTIVITY
21.1 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.
XXII. PUBLICITY
22.1 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.
XXIII. PUBLICATIONS
23.1 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.
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HOME Loan Agreement
23.2 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
Corpus Christi's HOME Investment Partnership Program, with
funding received from the United States Department of Housing
and Urban Development."
XXIV. RIGHTS TO PROPOSAL AND CONTRACTUAL MATERIAL
24.1 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.
XXV. FUNDING APPLICATIONS
25.1 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 and/or the Partnership Agreement). 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.
XXVI. CERTIFICATION REGARDING DEBARMENT, SUSPENSION,
PROPOSED DEBARMENT, AND OTHER
RESPONSIBILITY MATTERS
26.1 BORROWER certifies, and the CCCIC relies thereon in execution of this HOME LOAN
AGREEMENT, that neither BORROWER to its knowledge nor its Principals are presently
debarred, suspended, proposed for debarment, or declared ineligible, or voluntarily excluded for
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HOME Loan Agreement
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1 �
the award, proposed for debarment, or declared ineligible, or voluntarily excluded for the award
of contracts by any Federal governmental agency or department.
26.2 "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).
26.3 BORROWER shall provide immediate written notice to CCCIC, in accordance with
Article XLI, 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.
26.4 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 XXXI Termination.
XXVIL SUBCONTRACTING
27.1 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
subcontracted without the prior written approval of CCCIC. Any work or services approved for
subcontracting hereunder, however, shall be subcontracted 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.
27.2 BORROWER agrees that no sub - contract approved pursuant to this HOME LOAN
AGREEMENT shall provide for payment on a "cost plus a percentage of cost" basis.
27.3 Despite CCCIC approval of a subcontract, CCCIC shall in no event be obligated to any
third party, including any subcontractor 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.
XXVIII. CHANGES AND AMENDMENTS
28.1 Except when the terms of this HOME LOAN AGREEMENT expressly provide
otherwise, any alterations, additions, or deletions to the terms hereof shall be by amendment in
writing executed by authorized representatives of both CCCIC and BORROWER.
28.2 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
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HOME Loan Agreement
1 � I
I I
� 1 1
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 may incorporate therein
increases or decreases in the total monetary obligation of CCCIC to BORROWER as provided
for pursuant to the terms, provisions and conditions of this HOME LOAN AGREEMENT.
28.3 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 after, 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.
28.4 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.
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 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.
28.6 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.
XXIX. NOTICE AND CURE
29.1 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. Copies of all notices, requests,
demands and other communications provided to BORROWER pursuant to this Agreement and
the other Loan Documents by CCCIC will be simultaneously provided to Raymond James Tax
Credit Fund 37 L.L.C. c/o Raymond James Tax Credit Funds, Inc. at the address described in
paragraph 41.1. CCCIC acknowledges and agrees that Raymond James Tax Credit Fund 37
L.L.C. may cure, but is in no way obligated to cure, on behalf of BORROWER, all defaults
under this Agreement and other Loan Documents within the applicable period provided.
Notwithstanding the foregoing cure and remedy provision, BORROWER shall remain, at all
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HOME Loan Agreement
times, liable for full compliance with all applicable federal HOME Program rules and regulations
pertinent to the Project.
XXX. SUSPENSION OF FUNDING
30.1 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 have,
may, at its discretion, withhold any, all and further payments to BORROWER.
30.2 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
XXXI hereunder may be effectuated.
/:�:�:� AI U 3�:i11.1l► /:r Y t��►i
31.1 "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.
31.2 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 for failure to comply
with applicable federal laws, rules, or regulations;
(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 is delinquent, in the ordinary course of
business, in the payment of taxes, if any, or in the payment of costs of
performance of or related to this HOME LOAN AGREEMENT or the Project;
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HOME Loan Agreement
(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;
(F) 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 28.5
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,
subject to any applicable notice, grace and cure periods.
31.3 BORROWER may terminate this HOME LOAN AGREEMENT for any of the following
reasons:
(A) Termination 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.
31A 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.
31.5 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 the extent such obligations are funded under
this HOME LOAN AGREEMENT. To this effect, CCCIC shall not be liable to BORROWER
or BORROWER's creditors for any expense, encumbrances or obligations whatsoever incurred
after the date of termination or which was not canceled, withdrawn or otherwise terminated by
BORROWER in accordance with the provisions of this paragraph.
31.6 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
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HOME Loan Agreement
Article XXIV 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.
31.7 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.
31.8 Any termination of this HOME 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, options, 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.
31.9 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 terms 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.
31.10 Upon termination of this HOME LOAN AGREEMENT by CCCIC under paragraph
number 31.2(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.
XXXII. NOTIFICATION OF ACTION BROUGHT
32.1 In the event that any material 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 XLI of this HOME LOAN AGREEMENT.
XXXIII. ASSIGNMENTS
33.1 Except as provided for in the Partnership Agreement, 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 other assignment shall be void ab initio and shall
confer no rights upon any third person.
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HOME Loan Agreement
XXXIV. NO WAIVER OF PROVISIONS OR COMPLIANCE
34.1 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 all 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 XXXI hereof.
XXXV. SEVERABILITY OF PROVISIONS
35.1 If any clause or provision of this HOME LOAN AGREEMENT is held invalid, illegal or
unenforceable under present or fixture 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 added as a part of the HOME LOAN 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.
XXXVI. RENEWAL NOT AUTOMATIC
36.1 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.
XXXVII. NON - WAIVER OF PERFORMANCE
37.1 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 option. In fact, no waiver, change, modification or discharge by either
parry 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.
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HOME Loan Agreement
37.2 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 specifically preserved hereby.
37.3 No representative or agent of CCCIC may waive the effect of the provisions of this
Article.
XXXVIII. SPECIAL CONDITIONS
38.1 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.
38.2 BORROWER shall ensure that all professional and contractual services in connection
with Project implementation shall be procured in accordance with 24 CFR 570, Part 85, The
Common Rule, Procurement, Competitive Standards and all other federal laws and regulations
applicable to the Project.
38.3 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.
38.4 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 (IDIS) for each activity under this HOME LOAN
AGREEMENT, prior to initiating any activities and /or incurring any Project activity cost.
38.5 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.
38.6 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 BORROWER's receipt of the final remittance of HOME
LOAN AGREEMENT funds by CCCIC for such Project activity. BORROWER understands
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HOME Loan Agreement
and acknowledges that new Project Set -up Reports will not be processed by CCCIC if there are
any outstanding Project Completion Reports due.
38.7 BORROWER shall ensure that all units constructed 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.
38.8 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.
38.9 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.
38.10 BORROWER 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 Section 8 Income Guidelines.
38.11 BORROWER shall determine whether the HOME assisted units in the Project herein
shall be fixed or floating, and provide said information to CCCIC immediately upon its
determination. BORROWER understands and agrees that time is of the essence in making said
determination.
38.12 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.
38.13 BORROWER shall, in accordance with all applicable HOME regulations, determine and
utilize rent schedules and limits that ensure that the rent charged for TEN (10) of the 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.
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HOME Loan Agreement
38.14 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 rental subsidy) is the rent allowable under
the Federal or State project -based rental subsidy program.
38.15 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.
38.16 BORROWER understands and agrees that HOME assisted units shall meet the
affordability requirements for not less than twenty (20) years, commencing upon Project
completion.
38.17 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 HOME LOAN AGREEMENT. BORROWER shall annually provide CCCIC with
documentation on rents and occupancy of HOME assisted units to demonstrate compliance.
38.18 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.
38.19 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.
38.20 BORROWER 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 CCCIC are being taken to ensure that all vacancies are filled in
accordance with 24 CFR 92.252 until the noncompliance is corrected.
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i
38.21 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 U.S.C. 42) must pay rent governed by
section 42. If BORROWER has designated the HOME units as floating pursuant to Section
38.11 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.
38.22 BORROWER shall submit to CCCIC a post - construction appraisal promptly upon
completion of the Project.
38.23 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. 170lu (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
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HOME Loan Agreement
3 clause upon a finding that the subcontractor is in violation of the regulations in
24 CFR Part 135. 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 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 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. 450e) also applies to the work 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 shall
be given to Indians, and (ii) preference in the award of contracts and subcontracts
shall be given to Indian organizations and Indian-owned Economic Enterprises.
Parties to this contract that are subject to the 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).
XXXIX. ENTIRE - AGREEMENT
39.1 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.
XL. INTERPRETATION
40.1 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.
XLI. NOTICES
41.1 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
26
HOME Loan Agreement
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 five (5) business days after being deposited in the United States registered or certified 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 LENDER and BORROWER for all purposes
in connection herewith:
T ,FNDF.R
Corpus Christi Community Improvement Corporation
1201 Leopard St.
Corpus Christi, TX 78401
Attn: General Manager
• . t �] VIN 11:4
Costa Tarragona II, Ltd.
c/o Corpus Christi Housing Finance Corporation
1201 Leopard St.
Corpus Christi, TX 78401
Attn: General Manager
With a copy to:
Wood, Boykin & Wolter, P.C.
615 N. Upper Broadway, Suite 1100
Corpus Christi, Texas 78401
With a copy to:
Raymond James Tax Credit Fund 37 L.L.C.
c/o Raymond James Tax Credit Funds, Inc.
880 Carillion Parkway
St. Petersburg, FL 33716
27
HOME Loan Agreement
BORROWER'S MANAGEMENT COMPANY
The NRP Group, LLC
5309 Transportation Blvd.
Cleveland, OH 44125
Attn: Ted Einhorn
And a copy to:
Broad and Cassel
390 North Orange Ave., Suite 1400
Orlando, Florida 32801
Attn: David F. Leon, LLC
And a copy to:
The NRP Group, LLC
2819 South W.W. White Road
San Antonio, Texas 78222
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.
XLII. PARTIES BOUND
42.1 This HOME LOAN AGREEMENT shall be binding on and inure to the benefit of the
parties hereto and their respective successors and assigns, except as otherwise expressly provided
herein.
XLIII. GENDER
43.1 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.
XLIV. RELATIONSHIP OF PARTIES
44.1 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.
44.2 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.
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HOME Loan Agreement
y
a I
XLV. TEXAS LAW TO APPLY
45.1 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.
XLVI. CAPTIONS
46.1 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.
[SIGNATURE PAGE TO FOLLOW]
29
HOME Loan Agreement
O n
EXECUTED this the day of , 2011.
LENDER
x. -W
Armando Chapa
Secretary
BORROWER:
ry
r
CORPUS CHRISTI COMMUNITY
IMPROVEMFAIT-�QORPORATION
COSTA TARRAGONA II, LTD., a Texas limited partnership
Olson
Manager y i��, . AUTFIORI.W,
BY L NC11. 6 r 01 11„
---- ------- yk
SECRETARY rk-
By: CCHFC Costa Tarragona II, LLC, a Texas limited liability company, its general
partner
By: Corpus Christi Housing Finance Corporation,
a Texas corporation, it a tuber
By:
R nah Olson, General Manager._.
(ACKNOWLEDGMENT)
STATE OF TEXAS §
COUNTY OF NUECES §
This instrument was acknowledged before me on this 1 a of m ay -- , 2011,
by Ronald L. Olson, the General Manager of the Corpus Christi Housing Finance Corporation, a
Texas housing finance corporation, the sole member of CCHFC Costa Tarragona II, LLC, a
Texas limited liability company, acting as the general partner of Costa Tarragona II, Ltd., a
Texas limited partnership, on behalf of the partnership.
Y p EMER VELAZcwEz
M ComrnkW n Expires E)AA— V4�y---
,3ury os 2014 NOTARY PUBLIC, STATff OF TEXAS
Attachments
Exhibit "A" -- Property Description
30
HOME Loan Agreement
) 1.
EXHIBIT A
PROPERTY DESCRIPTION
I i i
a 1
For a 6.174 acre tract located in Nueces County, Texas, being a portion of Lot 3A, Amending Plat of West
Park Addition Lots 3A and 3B, a Subdivision of record in Volume 67, Page 494 of the Map Records of Nueces
County, Texas; Said 6.174 acre tract being more particularly described by metes and bounds as follows with
all bearings being referenced to the Easterly line of said Lot 3, Being S 04 °05'20" W;
Commencing at a found 5I8 -inch iron rod at the Southerly Right -of -Way line of North Padre Island Drive -
S.H. 358 (variable R.O.W.), for the Northeast corner of said Lot 3B, and the Northwest corner of Lot 1, West
Park Addition Subdivision of Record in Volume 47, Page 25 of the Map Records of Nueces County, Texas;
Thence, N 88 °12'41" W, 230.81 feet, along the Southerly Right -of -Way line of North Padre Island Drive -
S.H. 358 (variable R.O.W.), to a found TXDOT Monument, for corner;
Thence, S 75 0 43'45" W, 167.98 feet, to a found TXDOT Monument, on the Southerly Right -of -Way line of
North Padre Island Drive - S.H. 358 (variable R.O.W.), For the Point of Beginning of a non - tangent curve to
the left and the Point of Beginning hereof;
Thence, Southeasterly, along the common line of said Lot 3A, Lot 3B, and the are of a non - tangent curve to
the left having a radius of 2200.00 feet, a central angle of 32 0 46'07 ", an arc length of 1258.22 feet and a chord
bearing: S 37 1 07'57" E, a distance of 1241.15 feet, to a set 112 -inch iron rod with BPI cap located in the
southerly line of said Lot 3B, being a point in the irregular Northerly line of Lot 2 or West Park Addition
Lots 2 and 3, a Subdivision of record in Volume 65, Pages 11 -12 of the Map Records of Nueces County, Texas
for the Southeast corner of the herein described tract;
Thence, S 88 1 25'13" W, 478.14 feet, along a portion of the common boundary line of said Lot 3A and said Lot
2, to a set 112 -inch iron rod with BPI cap, for the Southwest corner of the herein described tract;
Thence, continuing along the common line of said Lot 2, and Lot 3A the following courses:
N 20 0 28'58" W, 303.75 feet, to a set 112 -inch iron rod with BPI cap for corner;
N 34 0 5328" W, 151.74 feet, to a set 112 -inch iron rod with BPI cap for corner;
N 31 0 38'26" E, 47.83 feet, to a set 112 -inch iron rod with BPI cap for corner;
N 20 0 2858" W, 12.67 feet, to a set 112 -inch iron rod with BPI cap for corner;
N 58 0 21'34" W, 70.00 feet, to a set 112 -inch iron rod with BPI cap for corner;
N 31 0 38'26" E, 27.21 feet, to a set 112 -inch iron rod with BPI cap for corner;
N 55 0 43'57" W, 170.07 feet, to a set 112 -inch iron rod with BPI cap for corner;
N 48 0 37'13" E, 66.05 feet, to a set mag nail for corner;
N 44 0 18'22" W, 296.99 feet, to a found 518 -inch iron rod on the Southeast right of way line of North Padre
Island Drive (variable R.O.W.), for the Northwest corner of said Lot 3A;
Thence, along the Southeast right of way line of North Padre Island Drive (variable R.O.W.), the following
courses:
N 52 °30'09" E, 54.97 feet, to a found TXDOT monument, for an angle corner of the herein described tract;
N 60 0 52'19" E, 93.63 feet, to a found TXDOT monument, for an angle corner of the herein described tract;
N 67 °12'55" E, 129.63 feet, to a found TXDOT monument, to the Point of Beginning, containing 6.189 acres
(269,575 square feet) of land, more or less.
SAVE AND EXCEPT that certain called 0.006 acre and 0.009 acre tract as conveyed to Corpus Christi
Housing Finance Corporation, by Special Warranty Deed dated December 13, 2007 and recorded in
Document No. 2007061698 of the Nueces County Records, leaving a net acreage for said Lot 3 of 6.174 acres.
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HOME Loan Agreement