R-08-12-18-7H3 - 12/18/2008RESOLUTION NO. R-08-12-18-7113
WHEREAS, the City of Round Rock has been awarded grant funds
which may be spent for the provision of certain services authorized
under the U.S. Department of Housing and Urban Development Community
Development Block Grant Program, and
WHEREAS, the City of Round Rock wishes to assist qualified
homeowners in the minor rehabilitation of their residence by
providing a non-interest bearing loan to pay a contractor for labor,
materials and equipment to be utilized in the rehabilitation, and
WHEREAS, the City Council desires to enter into a Community
Development Block Grant (CDBG) - Community Housing Repair and
Rehabilitation Homeowner Agreement with Barry Farley and Joanne
Farley for the rehabilitation of Lot 36, Block K, Sam Bass Trails,
Section One, also known as 1511 Lantern Light Drive ("Property"),
and
WHEREAS, the City Council desires to enter into a Community
Development Block Grant (CDBG) - Community Housing Repair and
Rehabilitation Program Contractor Agreement with All Tex Building &
Restoration, Inc. for the rehabilitation of the Property, Now
Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK,
TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City, a Community Development Block Grant (CDBG)
Community Housing Repair and Rehabilitation Homeowner Agreement with
Barry Farley and Joanne Farley, and a Community Development Block
Grant (CDBG) - Community Housing Repair and Rehabilitation Program
O:\WDOX\RESOLUTI\R81218H3.DOC/rmc
Contractor Agreement with All Tex Building & Restoration, Inc., a
copy of said agreements being attached hereto as Exhibit "A" and
Exhibit "B" and incorporated herein for all purposes.
The City Council hereby finds and declares that written notice
of the date, hour, place and subject of the meeting at which this
Resolution was adopted was posted and that such meeting was open to
the public as required by law at all times during which this
Resolution and the subject matter hereof were discussed, considered
and formally acted upon, all as required by the Open Meetings Act,
Chapter 551, Texas Government Code, as amended.
RESOLVED this 18th day of December, 2008.
ATTEST:
RLakfL
SARA L. WHITE, City Secretary
2
ALAN MCGRAW, Mayor
City of Round Rock, Texas
COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) -
COMMUNITY HOUSING REPAIR AND REHABILITATION
HOMEOWNER AGREEMENT
This CDBG Community Housing Repair and Rehabilitation Homeowner Agreement
(Agreement), is made this day of , 2008, between the CITY OF ROUND ROCK,
Texas, 221 East Main Street, Round Rock, Texas (CITY), and Barry Farley and Joanne Farley, a
married couple, whose address is 1511 Lantern Light Drive, Round Rock, Texas, 78681
(HOMEOWNER).
RECITALS
WHEREAS, the CITY has been awarded grant funds which may be spent by the CITY for
the provision of certain services authorized under the U.S. Department of Housing and Urban
Development (HUD) Community Development Block Grant (CDBG) Program; and
WHEREAS, CITY wishes to assist qualified homeowners in the minor rehabilitation of their
residence by providing a non-interest bearing loan to pay a contractor for labor, materials and
equipment to be utilized in the rehabilitation; and
WHEREAS, HOMEOWNER has qualified for the rehabilitation of LOT 36, BLOCK K,
SAM BASS TRAILS, SECTION ONE, a subdivision in Williamson County, Texas, according to
the map or plat thereof recorded in Cabinet I, Slide 260, Plat Records, Williamson County, Texas,
also known as 1511 LANTERN LIGHT DRIVE, Round Rock, Texas 78681 (the "Property"), as
specified in the Work Write -Up Bid Document, attached hereto and incorporated herein as Exhibit
Now therefore, for and in consideration of the mutual promises and covenants set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the CITY and HOMEOWNER agree as follows:
1.1
ARTICLE 1
GENERAL REQUIREMENTS
CITY will pay a contractor, by separate agreement attached hereto and incorporated herein
as Exhibit "C" (Contractor's Agreement), $20,095.00, (Contract Price) for labor, materials
and equipment utilized in the rehabilitation of the Property, as specified in the Work Write -
Up Bid Document. Funds will not be used to pay HOMEOWNER or members of its
family.
1.2 The Contract Price and any approved change orders will not total more than $25,118.75.
1.3 The loan awarded is forgivable provided the terms of this Agreement are met.
149415.doc/jmr
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1
EXHIBIT
ARTICLE 2
HOMEOWNER'S RESPONSIBILITIES
2.1 HOMEOWNER has qualified for a non-interest bearing loan under the Low to Moderate
Income guidelines as set forth in Section 8, Income Limits established and amended
annually by HUD, attached hereto and incorporated herein as Exhibit "B".
2.2 HOMEOWNER has resided in and been the owner(s) of the residence to be rehabilitated
for at least one (1) year prior to the submission of its application.
2.3 In order for the loan to be forgiven, the HOMEOWNER shall retain ownership of the
residence rehabilitated for at least five (5) years from the date of the Real Estate Lien Note
and Deed of Trust securing the loan awarded attached hereto and incorporated herein as
Exhibits "D" and "E". If a Deferral Termination Event, as that term is defined in the Real
Estate Lien Note, including, but not limited to the sale or rental of the Property, or failure
by the HOMEOWNER to occupy the Property as a primary residence, occurs prior to the
expiration of the five (5) years, HOMEOWNER shall pay the Real Estate Lien Note in full,
according to its terms.
2.4 The residence to be rehabilitated is not located in a flood zone area as defined in CITY's
Flood Insurance Map, produced by the Federal Emergency Management Agency, or if it is
located in a flood zone, HOMEOWNER has sufficient flood insurance, which
HOMEOWNER will keep current for at least five (5) years after receiving the award.
2.5 All property taxes on the Property are paid up to date, including CITY, County and
applicable School District Taxes.
2.6 The residence is not under a Contract for Deed, or any similar purchase agreement, in
which HOMEOWNER does not obtain legal title until final payment is made.
HOMEOWNER has not received HUD Program assistance for the preceding five (5)
years.
2.7 HOMEOWNER understands and agrees that the work performed by contractor will be
inspected by the Construction Advisor, as defined in the City of Round Rock Housing
Repair and Rehabilitation Program Policies and Procedures, and a City Inspector before
any funds are paid out and the rehabilitation is completed.
ARTICLE 3
OTHER PROGRAM REQUIREMENTS
3.1 DISCRIMINATION. HOMEOWNER will not exclude any person from participation in,
deny the benefits of or subject the person to discrimination under any of the contractor's
activities while receiving federal financial assistance on the grounds of race, color,
religion, sex, national origin, age or disability.
2
3.2 INTEREST OF MEMBERS, OFFICERS, EMPLOYEES OF PUBLIC BODY,
MEMBERS OF LOCAL GOVERNING BODY, OR OTHER PUBLIC OFFICIALS. No
member, officer, or employee of CITY, or its designees or agents, no member of the City
Council, and no other public official of CITY during his/her tenure or for one (1) year
thereafter, will have any interest, direct or indirect, in any contract or subcontract, or the
proceeds thereof, for work to be performed in connection with the program assisted under
this Agreement.
3.3 PROHIBITION OF BONUS OR COMMISSION. The assistance provided under this
Agreement will not be used in payment of any bonus or commission for the purpose of
obtaining CITY approval of the application for such assistance.
3.4 STATUTE OF LIMITATIONS. As between the parties to this Agreement, as to all acts
or failures to act by either party to this Agreement, any applicable statute of limitations
will commence to run and any alleged cause of action will be deemed to have accrued in
any and all events when the party commencing said cause of action knew or should have
known of the existence of the subject act(s) or failure(s) to act.
3.5 LIEN. HOMEOWNER agrees that a lien shall be placed against the Property for a period
of five (5) years after the work performed by the contractor has been approved by the
Construction Advisor.
3.6 INDEMNIFICATION. HOMEOWNER will defend, indemnify, and hold CITY, its
successors, assigns, officers, employees and elected officials harmless from and against
all suits, actions, legal proceedings, claims, demands, damages, costs, expenses,
attorney's fees, and any and all other costs or fees arising out of, or incident to,
concerning or resulting from this Agreement, no matter how, or to whom, such loss may
occur. Nothing herein will be deemed to limit the rights of CITY or HOMEOWNER
(including, but not limited to the right to seek contribution) against any third party who
may be liable for an indemnified claim.
3.7 CHANGE ORDERS. HOMEOWNER expressly agrees that no material changes or
alterations in the Work Write -Up Bid Document or Contract Price provided above will be
made unless in writing, mutually agreed by HOMEOWNER, the contractor and
authorized by CITY.
3.8 TERMS. All references in this Agreement to any particular gender are for convenience
only and will be construed and interpreted to be of the appropriate gender. For the
purposes of this Agreement the term "will" is mandatory.
3.9 SEVERABILITY. Should any provision in this Agreement be found or deemed to be
invalid, this Agreement will be construed as not containing such provision, and all other
provisions which are otherwise lawful will remain in full force and effect, and to this end
the provisions of this Agreement are declared to be severable.
3
3.10 PUBLIC INFORMATION ACT. The City of Round Rock is governed by the Texas
Public Information Act, Chapter 552 of the Texas Government Code. This Agreement
and all written information generated under this Agreement may be subject to release
under this Act.
ARTICLE 4
SUSPENSION AND TERMINATION
4.1 If HOMEOWNER fails to fulfill in a timely and proper manner their obligations under
this Agreement, or violates any of the terms or conditions of this Agreement, then
HOMEOWNER will have ten (10) days from the date it receives written notice from
CITY directing it to cure or correct the defects or failures to comply. Should
HOMEOWNER fail to make corrections as directed by CITY, and such breach of
contract results in a violation of federal law or regulation for which CITY receives a
demand of reimbursement of grant funds from HUD or its successor, CITY may
terminate this Agreement immediately, and may recover from HOMEOWNER the
amount sought by HUD for reimbursement, up to the full amount of the award.
4.2 HOMEOWNER will not be relieved of the liability to the CITY for damages sustained by
CITY by virtue of any breach of this Agreement by HOMEOWNER.
4.3 If CITY becomes aware of any HOMEOWNER activity which could jeopardize CITY's
position with HUD and cause CITY to return CDBG funds or other federal funds
received by CITY, CITY may take appropriate action, including injunctive relief against
HOMEOWNER, to terminate or prevent the activity. Failure of CITY to exercise this
right will not constitute a waiver by CITY of its right to demand payment or to seek any
other relief in law or in equity to which it may be entitled.
ARTICLE 5
ATTORNEY'S FEES
5.1 Any party to this Agreement who prevails in any legal proceedings between the parties
regarding this Agreement will be entitled to recover court costs and reasonable attorney's
fees from the non -prevailing party.
ARTICLE 6
VENUE AND REMEDIES
6.1 This Agreement is governed by the laws of the State of Texas. Exclusive venue for any
dispute arising under this Agreement is in Williamson County, Texas.
4
ARTICLE 7
SUCCESSORS AND ASSIGNS
7.1 CITY and HOMEOWNER, respectively, bind themselves, their successors, assigns and
legal representatives to the other party to this Agreement and to the successors, assigns
and legal representatives of the other party with respect to all covenants of this
Agreement. Neither CITY nor HOMEOWNER will assign, sublet, or transfer any
interest in this Agreement without the written consent of the other.
ARTICLE 8
ENUMERATION OF CONTRACT DOCUMENTS
8.1 This Agreement represents the entire and integrated agreement between CITY and
HOMEOWNER for the work specified in Exhibit "A" and supersedes all prior
negotiations, representations or arguments either written or oral. This Agreement may be
amended only by written instrument signed by CITY and HOMEOWNER. The
Agreement contains the following exhibits attached to and incorporated in this
Agreement for all purposes:
(1) Work Write -Up Bid Document (Exhibit "A")
(2) HUD Section 8 Income Limits (Exhibit "B")
(3) Contractor's Agreement (Exhibit "C")
(4) Real Estate Lien Note (Exhibit "D")
(5) Deed of Trust (Exhibit "E")
This Agreement is effective as of the date first written above.
HOMEOWNER:
Barry Farley
13
HOMED
Joanne Farley
ature
CITY:
City of Round Rock
Alan McGraw, Mayor
5
K/
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Contractor Signature
Bid Due Date; 9/16/2008
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EXHIBIT "B"
INCOME LIMITS
MAXIMUM INCOME CHART
Household Size
Maximum Income (80% of the Area Median)
1 person
$39,850
2 persons
$45,500
3 persons
$51,200
4 persons
$56,900
5 persons
$61,450
6 persons
$66,000
7 persons
$70,550
8 persons
$75,100
Source: U.S. Department of Housing & Urban Development. These income figures are
subject to change annually.
Effective February 19, 2008
EXHIBIT
COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) -
COMMUNITY HOUSING REPAIR AND REHABILITATION PROGRAM
CONTRACTOR AGREEMENT
This CDBG Community Housing Repair and Rehabilitation Program Contractor
Agreement (Agreement), is made this day of , 2008, between the CITY OF
ROUND ROCK, Texas, 221 East Main Street, Round Rock, Texas ("CITY"), and ALL TEX
BUILDING & RESTORATION, INC., 12711 Woodcreek Drive, Willis, Texas 77318
("CONTRACTOR").
RECITALS
WHEREAS, CITY has been awarded grant funds which may be spent by CITY for the
provision of certain services authorized under the U.S. Department of Housing and Urban
Development (HUD) Community Development Block Grant (CDBG) Program; and
WHEREAS, CITY wishes to assist qualified homeowners in the minor rehabilitation of their
residence by providing a non-interest bearing loan to pay CONTRACTOR for labor, materials and
equipment to be utilized in the rehabilitation; and
WHEREAS, CITY will pay CONTRACTOR for labor, materials and equipment to be
utilized in the rehabilitation of LOT 36, BLOCK K, SAM BASS TRAILS, SECTION ONE, a
subdivision in Williamson County, Texas, according to the map or plat thereof recorded in
Cabinet I, Slide 260, Plat Records, Williamson County, Texas, also known as 1511 LANTERN
LIGHT DRIVE, Round Rock, Texas (the "Property"), as specified in the Work -Write Up Bid
Document, attached hereto and incorporated herein as Exhibit "A".
Now therefore, for and in consideration of the mutual promises and covenants set forth herein,
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, CITY and CONTRACTOR agree as follows:
ARTICLE 1
GENERAL REQUIREMENTS
1.1 CITY will pay CONTRACTOR $20,095.00 ("Contract Amount"). Funds will not be used
to pay the homeowner or members of its family.
1.2 Payment will be made by CITY for all work described in the Work -Write Up Bid
Document after all of such work is found to be satisfactorily completed and inspected by
the Construction Advisor, as defined in the City of Round Rock Minor Home Repair
Program Policies and Procedures, and the CITY Inspector. CITY will pay
CONTRACTOR for work in accordance with CITY'S Prompt Payment Policy, as defined
in the City of Round Rock 2008 Community Housing Repair and Rehabilitation Program
Policies and Procedures.
148752.doc/jmr
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EXHIBIT
1 110
1.3 CONTRACTOR will not deviate from the work described in the Work -Write Up Bid
Document without a change order from CITY. Any such change order will be included in
an amendment to this Agreement. The Contract Amount and any change orders shall not
exceed a total amount equal to a twenty-five (25) percent increase in the original Contract
Amount.
1.4 The Contract Amount and any approved change orders will not total more than the
amount of $25,118.75.
1.5 All work specified in the Work -Write Up Bid Document will be satisfactorily completed
within ninety (90) days from the date of the Notice to Proceed.
1.6 Work -Write Up Bid Document line item deletions: None
1.7 CONTRACTOR will assign to the CITY all mechanic's lien notes and mechanic's lien
contracts on the Property held by CONTRACTOR.
ARTICLE 2
CONTRACTOR'S RESPONSIBILITIES
2.1 CONTRACTOR will ensure that all work performed under this Agreement is permitted
and inspected by CITY's Building Inspection Division. CONTRACTOR agrees to be duly
licensed under CITY ordinances and State laws and be responsible for obtaining the
building permit.
2.2 CONTRACTOR understands that it is solely responsible for meeting the terms and
conditions of this Agreement. If CONTRACTOR fails to properly perform or complete
any of the work specified in the Work -Write Up Bid Document, CONTRACTOR will not
receive funding for any work that is found to be improperly performed or incomplete.
2.3 CONTRACTOR understands that all work described in the Work -Write Up Bid Document
with the exception of line items deleted under Section 1.6 must be completed before any
funds will be paid out.
2.4 CONTRACTOR understands that the job will be inspected by a CITY Inspector and
Construction Advisor before any funds will be paid out.
2.5 CITY will provide a Notice to Proceed to CONTRACTOR to commence work.
CONTRACTOR agrees to start work within thirty (30) calendar days after receipt of the
Notice to Proceed. If CONTRACTOR fails to commence work within thirty (30) days
from the date on the Notice to Proceed, CITY will have the right to terminate this
Agreement, by providing a written notice of termination to CONTRACTOR.
2.6 CONTRACTOR agrees to complete the work within ninety (90) days from the date of the
2
Notice to Proceed. If completion is delayed for reasons beyond the CONTRACTOR's
control, CONTRACTOR will provide timely notice to CITY of the reasons for such delay.
If such good cause is claimed by CONTRACTOR, it will be CONTRACTOR'S obligation
to substantiate its claim by adequate documentation.
2.7 CONTRACTOR affirms that it has not been debarred from performing federal contract
work.
ARTICLE 3
OTHER PROGRAM REQUIREMENTS
3.1 PERMITS AND CODES. CONTRACTOR agrees to secure and pay for all necessary
permits and licenses required for CONTRACTOR'S performance and to adhere to
applicable local codes and requirements whether or not covered by the Work -Write Up
Bid Document, including any CONTRACTOR registration requirements.
3.2 DISCRIMINATION. CONTRACTOR will not exclude any person from participation in,
deny the benefits of or subject the person to discrimination under any of the
CONTRACTOR's activities while receiving federal financial assistance on the grounds
of race, color, religion, sex, national origin, age or disability.
3.3 WARRANTY. CONTRACTOR agrees to provide a full one-year warranty to the
homeowner, said warranty will extend to subsequent owners of the property to be
improved. The warranty will provide that improvements, hardware, and fixtures of
whatever kind or nature installed or constructed on said property by the CONTRACTOR
are of good quality and free from defects in workmanship or materials or deficiencies
subject to the warranty provided in this paragraph. CONTRACTOR and CITY agree,
however, that the warranty set forth in this paragraph will apply only to such deficiencies
and defects as to which homeowner or subsequent owners will have given written notice
by certified mail to the CONTRACTOR, at its principal place of business, within one (1)
year from the date of the final inspection and acceptance by the CITY Inspector that all
work under the Agreement has been completed.
3.4 BID. CONTRACTOR acknowledges that it has prepared the CONTRACTOR'S Work -
Write Up Bid Document, attached hereto and incorporated herein as Exhibit "A" and that
such Bid is accurate and consistent as to the name of CONTRACTOR, scope of work that
the CONTRACTOR will under -take, and price. CONTRACTOR acknowledges the
performance requirement established in the write up and warrants that all work
undertaken will conform to said specifications.
3.5 REMOVAL OF DEBRIS. Upon completion of work CONTRACTOR agrees to remove
all construction debris and surplus material from the Property and leave the Property in a
neat and clean condition.
3.6 SUBCONTRACTORS. CONTRACTOR agrees that all the warranties contained herein
will apply to all work performed under this Agreement, including that performed by any
3
Subcontractors.
3.7 FRAUDULENT ACTS. CONTRACTOR nor any of its officers, partners, owners,
agents, representatives, employees, subcontractors or parties in interest has in any way
colluded, conspired, connived or agreed, directly or indirectly with any other bidder,
firm, or person to submit a collusive or sham bid in connection with CONTRACTOR for
which the bid has been submitted or to refrain from bidding in connection with this
Agreement, or has in any manner, directly or indirectly, sought by agreement or collusion
or communication or conference with any other bidder, firm, or person to fix any
overhead, profit, or cost element of the bid price or the bid price of any other bidder, or to
secure through any collusion, conspiracy, connivance, or unlawful agreement, any
advantage against CITY or any person interested in this Agreement; and the price or
prices quoted are fair and proper and are not tainted by any collusion, conspiracy,
connivance or unlawful agreement on the part of CONTRACTOR or any of its agents,
representatives, owners, employees, or parties in interest.
3.8 INTEREST OF MEMBERS, OFFICERS, EMPLOYEES OF PUBLIC BODY,
MEMBERS OF LOCAL GOVERNING BODY, OR OTHER PUBLIC OFFICIALS. No
member, officer, or employee of CITY, or its designees or agents, no member of the City
Council, and no other public official of CITY during his/her tenure or for one (1) year
thereafter, will have any interest, direct or indirect, in any contract or subcontract, or the
proceeds thereof, for work to be performed in connection with the program assisted under
this Agreement.
3.9 PROHIBITION OF BONUS OR COMMISSION. The assistance provided under this
Agreement will not be used in payment of any bonus or commission for the purpose of
obtaining CITY approval of the application for such assistance.
3.10 STATUTE OF LIMITATIONS. As between the parties to this Agreement, as to all acts
or failures to act by either party to this Agreement, any applicable statute of limitations
will commence to run and any alleged cause of action will be deemed to have accrued in
any and all events when the party commencing said cause of action knew or should have
known of the existence of the subject act(s) or failure(s) to act.
3.11 INDEMNIFICATION. CONTRACTOR will defend, indemnify, and hold CITY, its
successors, assigns, officers, employees and elected officials harmless from and against
all suits, actions, legal proceedings, claims, demands, damages, costs, expenses,
attorney's fees, and any and all other costs or fees arising out of, or incident to,
concerning or resulting from the fault of CONTRACTOR, or CONTRACTOR's agents,
employees or subcontractors, in the performance of CONTRACTOR's obligations under
this Agreement, no matter how, or to whom, such loss may occur. Nothing herein will be
deemed to limit the rights of CITY or CONTRACTOR (including, but not limited to the
right to seek contribution) against any third party who may be liable for an indemnified
claim.
3.12 CHANGE ORDERS. CONTRACTOR expressly agrees that no material changes or
alterations in the Work -Write Up Bid Document or price provided above will be made
4
unless in writing, mutually agreed by the homeowner, CONTRACTOR and authorized
by CITY.
3.13 TERMS. All references in this Agreement to any particular gender are for convenience
only and will be construed and interpreted to be of the appropriate gender. For the
purposes of this Agreement the term "will" is mandatory.
3.14 SEVERABILITY. Should any provision in this Agreement be found or deemed to be
invalid, this Agreement will be construed as not containing such provision, and all other
provisions which are otherwise lawful will remain in full force and effect, and to this end
the provisions of this Agreement are declared to be severable.
3.15 PUBLIC INFORMATION ACT. The CITY is governed by the Texas Public Information
Act, Chapter 552 of the Texas Government Code. This Agreement and all written
information generated under this Agreement may be subject to release under this Act.
3.16 PERFORMANCE. In performing this Agreement, CONTRACTOR will comply with all
local, state and federal laws.
3.17 LIEN WAIVERS. CONTRACTOR agrees to protect, defend, and indemnify homeowner
and CITY from any claims for unpaid work, labor, or materials with respect to
CONTRACTOR'S performance. Final payment will not be paid until the
CONTRACTOR has delivered to CITY complete release of all liens for work completed
arising out of CONTRACTOR'S performance or a receipt in full, covering all labor and
materials for which a lien could be filed or a bond satisfactory to the homeowner and
CITY indemnifying him against any lien.
3.18 REPORTING REQUIREMENTS. CONTRACTOR agrees to submit a W9 Form,
attached hereto and incorporated herein as Exhibit "B" to fulfill reporting requirements
with the Internal Revenue Service.
ARTICLE 4
SUSPENSION AND TERMINATION
4.1 If CONTRACTOR fails to fulfill in a timely and proper manner its obligations under this
Agreement, or violates any of the terms or conditions of this Agreement, then the
CONTRACTOR will have ten (10) days from the date it receives written notice from
CITY directing it to cure or correct the defects. If CONTRACTOR fails to cure or
correct the defects, CITY will have the right to terminate this Agreement and to select a
substitute CONTRACTOR. If the expense of finishing the work exceeds the amount of
this Agreement, CONTRACTOR will pay the difference to CITY. Should
CONTRACTOR fail to make corrections as directed by CITY, and such breach of
contract results in a violation of federal law or regulation for which CITY receives a
demand of reimbursement of grant funds from HUD or its successor, CITY may
terminate this Agreement immediately, and may recover from CONTRACTOR the
5
amount sought by HUD for reimbursement, up to the full amount of funds
CONTRACTOR received from CITY.
4.2 CONTRACTOR will not be relieved of the liability to CITY for damages sustained by
the CITY by virtue of any breach of this Agreement by CONTRACTOR. CITY may
withhold payment to CONTRACTOR until the amount of monetary damages due CITY
from CONTRACTOR is determined.
4.3 If CITY becomes aware of any CONTRACTOR activity which could jeopardize CITY's
position with HUD and cause CITY to return CDBG funds or other federal funds
received by CITY, CITY may take appropriate action, including injunctive relief against
CONTRACTOR, to terminate or prevent the activity. Failure of CITY to exercise this
right will not constitute a waiver by CITY of its right to demand payment or to seek any
other relief in law or in equity to which it may be entitled.
ARTICLE 5
PAYMENTS
5.1 For work completed by CONTRACTOR, as described in the Work -Write Up Bid
Document, CITY agrees to pay CONTRACTOR the Contract Amount after all of such
work is found to be satisfactorily completed and is inspected by the Construction Advisor
and CITY Inspector, in accordance with the CITY'S Prompt Payment Policy.
ARTICLE 6
ATTORNEY'S FEES
6.1 Any party to this Agreement who prevails in any legal proceedings between the parties
regarding this Agreement will be entitled to recover court costs and reasonable attorney's
fees from the non -prevailing party.
ARTICLE 7
VENUE AND REMEDIES
7.1 This Agreement is governed by the laws of the State of Texas. Exclusive venue for any
dispute arising under this Agreement is in Williamson County, Texas.
ARTICLE 8
SUCCESSORS AND ASSIGNS
8.1 CITY and CONTRACTOR, respectively, bind themselves, their successors, assigns and
legal representatives to the other party to this Agreement and to the successors, assigns
and legal representatives of the other party with respect to all covenants of this
Agreement. Except for CONTRACTOR'S assignment of mechanic's lien contracts and
mechanic's lien notes to the CITY pursuant to Paragraph 1.7, neither CITY nor
CONTRACTOR will assign, sublet, or transfer any interest in this Agreement without the
6
written consent of the other.
ARTICLE 9
ENUMERATION OF CONTRACT DOCUMENTS
9.1 This Agreement represents the entire and integrated agreement between CITY and
CONTRACTOR for the work specified in Exhibit "A" and supersedes all prior
negotiations, representations or arguments either written or oral. This Agreement may be
amended only by written instrument signed by CITY and CONTRACTOR. The
Agreement contains the following exhibits attached to and incorporated in this
Agreement for all purposes:
(1) Work -Write Up Bid Document (Exhibit "A");
(2) W9 Form (Exhibit "B").
ARTICLE 10
ACKNOWLEDGMENT
10.1 The above warranties are in addition to, and not in limitation of, any and all other rights
and remedies to which CITY and the homeowner, or subsequent owners, may be entitled,
at law or in equity, and will survive the conveyance of title, delivery of possession of the
Property, or other final settlement made by the homeowner and will be binding on the
undersigned notwithstanding any provision to the contrary contained in any instrument
heretofore, and thereafter executed by the homeowner.
This Agreement is effective as of the date first written above.
CONTRACTOR: CITY:
ALL TEX BUILDING & RESTORATION, INC. CITY OF ROUND ROCK
Name Alan McGraw,
Title
7
Mayor
raj
H
131d Due Date: 9/16/2008
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Form W-9
(Rev.November
or the Tleaey
oopwna
InternalRevenue Revensandee
Request for Taxpayer
identification Number and Certification
Give form to the
not
requester. Do S.
sendIRS.ment
to the IRS.
mint or typo
I See Specific Instructions an page 2.
Name (as shoownn on your a tax
flfl sFes[( RU(1eir5 ci— (2 57b
A
Business name. If dfierent from above
See
Check a Individual/ Corporation
appropriate 6mc Sole propriobrwithholding
►
• Partnership 0 Other
.Exempt from backup
1 �� (number, street, and apt. 1 W° C Lnal l�
Requester's name and address (optional)
City, state, andZIP coda •
110 vii ,S IR( . fl 2i
Ust amount number(s) fere (optional)
Taxpayer ident,fication Number (Tl
Enter your 11N In the appropriate box. The TIN provided must match the name given on Line 1 to avoid
backup withholding. For individuals, this is your social security number (SSN). However, for a resident
alien, sole proprietor, or disregarded entity, see the Part I instructions on page 3. For other entities, it is
your employer Identification number (EIN). if you do not have a number, see How to get a 11N on page 3.
Note. If the account Is in more than one name, see the chart on page 4 for guidalnas on whose
number to enter.
Part 11
Certification
Social security number
1I-I�I•I 1 1
or
Employer Idantf i oo number
. r»-/ i bl 131x1 / 10
Under penalties of perjury, l certify that
1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and
2. I am not subject to backup withholding because: (a) I am exempt from backup withholding. or (b) 1 have not been notified by the Internal
Revenue Service (IRS) that 1 em subject to backup withholding as a result of a failure to report all Interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup withholding, and
3. I am a U.S. person (mdudrng a U.S. resident alien).
Certification instructions` You must cross out item 2 above if you have been notified by the iRS that you are currently subject to backup
withholding because you have failed to report all interest and dividends on your lax return. For real estate transactions, item 2 does not apply.
For mortgage Interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement
arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the Certification, but you must
provide your correct 11N. (See the instructions on page 4.)
i).61-.y/a6
Sign
Here
Signature of •
U.S, person
on ►
Purpose
Purpose of Form
A person who is required to file an information retum with the
IRS, must obtain your correct taxpayer identification number
(TIN) to report, for example, income paid to you, real estate
transactions, mortgage interest you paid, acquisition or
abandonment of secured property, cancellation of debt, or
contributions you made to an IRA.
U.S. person. Use Form W-9 only if you are a U.S. person
(including a resident alien), to provide your correct TIN to the
person requesting it (the requester) and, when applicable, to:
1. Certify that the TIN you are giving is correct (or you are
waiting for a number to be issued),
2. Certify that you are not subject to backup withholding, or
3. Claim exemption from backup withholding if you are a
U.S. exempt payee.
In 3 above. if applicable, you are also certifying that as a
U.S. person, your allocable share of any partnership income
from a US. trade or business is not subject to the
withholding tax on foreign partners' share of effectively
connected income.
Note. If a requester gives you a form other than Form W-9 to
request your TIN, you must use the requester's form if it is
substantially similar to this Form W-9.
For federal tax purposes, you are considered a person if you
are:
EXHIBIT
nBn
Date 11. -
• An individual who is a citizen or resident of the United
States,
• A partnership, corporation, company, or association
created or organized in the United States or under the laws
of the United States, or
• Any estate (other than a foreign estate) or trust. See
Regulations sections 301.7701-6(a) and 7(a) for additional
information.
Special rules for partnerships. Partnerships that conduct a
bade or business in the United States are generally required
to pay a withholding tax on any foreign partners' share of
income from such business. Further, in certain cases where a
Form W-9 has not been received, a partnership is required to
presume that a partner is a foreign person. and pay the
withholding tax. Therefore, if you are a U.S. person that is a
partner in a partnership conducting a trade or business in the
• United States, provide Four W-9 to the partnership to
establish yourU.S. status and avoid withholding on your
share of partnership income.
The person who gives Form W-9 to the partnership for
purposes of establishing its U.S. status and avoiding
withholding on its allocable sham of net income from the
partnership conducting a trade or business in the United
States is in the following cases:
• The U.S. owner of a disregarded entity and not the entity,
Cal No. 10231X
Form -9 (W 11 2005]
REAL ESTATE LIEN NOTE
(Community Housing Repair and Rehabilitation Program)
Date: , 2008
Maker (whether one or more): Barry and Joanne Farley, a married couple
Maker's Mailing Address (including county):
1511 Lantern Light Drive
Round Rock, Texas 78681
Williamson County
Payee: CITY OF ROUND ROCK, TEXAS
1. Place for Payment (including county):
CITY OF ROUND ROCK
Attn: Home Repair and Rehabilitation Program Manager
221 East Main Street
Round Rock, Texas 78664
Williamson County
or any other place that Payee may designate in writing.
2. Principal Amount:
TWENTY FIVE THOUSAND, ONE HUNDRED EIGHTEEN DOLLARS AND 75/100
($25,118.75). In the event that actual costs associated with the repair and rehabilitation of the
Property are less than the aforesaid Principal Amount, Maker shall be credited the difference
between the Principal Amount and the actual costs.
3. Annual Interest Rate on Unpaid Principal from Date: The highest interest rate allowed
by law will be charged on this Note if a Default has been declared by the Note Holder as
stated in Paragraph 12 of this Note.
4. Maker's Promise to Pay
a. Purpose This Note implements requirements applicable to assistance furnished by Payee
to Maker under a program to help eligible families with home repairs and rehabilitation
being carried out by Payee, which, for certain loans may use grant funds furnished by
HUD through the CDBG program. The Payee has assisted the Maker with respect to
rehabilitation of the Property, for use as the Maker's principal residence.
149526.doc/jmr
EXHIBIT
��Dn
b. Promise to Pay Maker promises to Pay to the order of Payee at the place for payment and
according to the terms of payment the principal amount plus interest, if any, plus other
charges at the rates stated above.
5. Terms of Payment:
a. Subsidy Repayment Obligation Principal In return for assistance Maker has received
with respect to rehabilitation of the Property, Maker promises to pay the Principal
Amount as stated in Paragraph 2 to the order of Payee. Payment of Principal under this
Note will be initially deferred. Such deferral shall end and the total Principal Amount
shall be due and payable on the date of an event of Default as stated in Paragraph 9.
b. Deferral and Payment of Principal The outstanding principal balance of this Note shall
remain the same as the amount stated in Paragraph 2 until five (5) years from the date of
this Note. If there is a Deferral Termination Event, as defined in paragraph (c) below,
within the five (5) years from the date of this Note, Maker shall repay the principal loan
amount to Payee. If there is no Deferral Termination Event within five (5) years from the
date of this Note, the loan shall be forgiven.
c. Deferral Termination Event Any of the following constitute a Deferral Termination
Event:
i. Rental during term of Note. If the Maker rents or leases (including an oral lease)
the Property to any person or entity during the term of this Note, the deferral period
stated above is terminated.
ii. Failure to Occupy Property as Principal Residence during the term of the Note.
If all Makers are continuously absent from the Property for a period of more than
thirty (30) days, or move substantially all their personal possessions out of the
Property, without the written consent of the Note Holder, the Makers shall be deemed
not to be occupying the Property as their Principal Residence and the deferral period
stated above is terminated.
iii. Any Transfer of the Property. Any transfer of the Property or any interest therein
(including a beneficial interest) within five (5) years of the signing of this Note
terminates the deferral period under this Note. Maker authorizes the Note Holder to
determine, in its sole discretion, whether a transfer of a portion of the Property, or a
partial interest therein, or any other reason has an effect on the value of the Note
Holder's interest substantial enough to be considered a transfer for purposes of this
Paragraph 9. Maker will mail, certified mail, return receipt requested, or deliver
notice of any proposed transfer and a copy of the sales contract to the Note Holder at
least fourteen (14) calendar days before the proposed Closing Date, at the Place for
Payment as stated in Paragraph 1 or any other place that Payee may designate in
writing. Exceptions to this provision are limited to (a) a subordinate lien or
encumbrance that does not transfer rights of occupancy of the Property; (b) creation
of a purchase -money security interest for household appliances; (c) transfer by devise,
descent, or operation of law on the death of a co -Grantor; (d) transfer to a spouse or
2
children of Grantor or between co -Grantors; (e) transfer to a relative of Grantor on
Grantor's death; and (0 transfer to an inter vivos trust in which Grantor is and
remains a beneficiary and occupant of the Property.
6. Security for Payment and Obligations:
a. In addition to the protections given to the Note Holder under this Note, this Note is
secured by a subordinated deed of trust, of even date, from Maker to Stephan L. Sheets,
Trustee, that conveys the Property as described below in trust (collectively, the
"Subordinate Security Instrument").
b. The lien securing this Note shall remain subordinate to the indebtedness evidenced by
one or more Notes payable to the Financial Institutions as defined below, which Notes
are secured by the Senior Liens as defined below, and as renewed, extended, re -
amortized, or otherwise adjusted from time to time; provided, however, that the renewal,
extension, or other credit extension does not constitute an increase in the unpaid principal
balance of the Financial Institutions' indebtedness.
c. The Subordinate Security Instrument describes the conditions under which Maker may be
required to make immediate payment in full of all amounts Maker owes under this Note.
One of those conditions set forth therein is that if all or any part of the Property or any
interest in it (including a beneficial interest) is sold or transferred without compliance
with the terms of this Note and the Subordinate Security Instrument, the Note Holder will
require immediate payment in full of all sums secured by the Subordinate Security
Instrument. In the event of such a sale, or in the event of any other Default under this
Note or the Subordinate Security Instrument, the Note Holder may give the Maker Notice
of Default and acceleration under Paragraph 9 of this Note.
7. Additional Definitions:
a. "Bona Fide Net Resale Proceeds" means the amount calculated by the Note Holder by
subtracting from the contract sales price between the Maker and the proposed buyer for
the Property the amounts due on the Closing Date on any "Senior Liens" and on
"Maker's Other Liens", and also subtracting the amount of any reasonable and
customary sales expenses paid by the Maker in connection with the sale, each as
determined by the Note Holder. If any part of the contract sales price for the Property is
paid in the form of a promissory Note, or any thing of value other than lawful money of
the United States, the Note Holder is hereby authorized to assign a fair market value
thereto. Maker agrees to accept such thing of value at such assigned fair market value as
part of maker's equity, or to allow it to be retained by the Note Holder as Alternate
Principal, as the Note Holder in its sole discretion may determine.
b. "Closing Date" means the date of closing of Maker's sale of the Property to a buyer, or
if there is no formal closing, the date on which the conveyance (deed) is recorded.
3
c. "Home Repair and Rehabilitation Payment Activity" means any loan made by Payee
using either CDBG funds or other funds to assist a Homeowner with payment funds for
minor repairs on a home.
d. "Financial Institution(s)" means Mortgage Electronic Registration Systems, Inc., as
Nominee for RBD Mortgage Company.
e. "CDBG" means Community Development Block Grant program.
f. "HUD " means the United States Department of Housing and Urban Development.
g.
"Maker's Other Liens" means unpaid liens or other charges that Maker authorized, or
allowed to exist against the Property since the date of this Note. Such liens may include,
for example, liens for money borrowed to finance additional improvements, home equity
lines of credit, and other voluntary liens, liens for unpaid taxes, special assessments,
water, sewer, and other utility charges, mechanics' liens, and other liens and charges
arising by operation of law; and judgment or other creditor's liens, any of which may
affect the amount of the sales proceeds, Maker hereby authorizes Note Holder to
determine, in Note Holder's sole discretion, the amount by which these liens or charges
reduce the Bond Fide Net Resale Proceeds for the Property, and to reduce the amount
payable to Maker as maker's equity by an equal amount.
h. "Note Holder" means the lender of any authorized party who takes this Note by
assignment and is entitled to receive amounts due under this Note.
i. "Property" means the certain real property described on Exhibit "A" attached to this
Note and by this reference incorporated in it.
j. "Senior Lien Note(s)" means the Note(s) in the original principal amount of
$105,661.00, filed the 26th day of January, 2005, executed by Maker, payable to the
order of Financial Institutions, and fully described in the Senior Liens.
k. "Senior Lien(s)" means a deed of trust(s) recorded in the real property records of
Williamson County, Texas as Document No. 2005006368 and Document No.
2005006369 securing the Senior Lien Note(s).
1. "Subordinate Security Instrument" means the instruments identified in Paragraph 6.a.
8. Maker's Right to Prepay
Maker may make a full prepayment or partial prepayments without paying any prepayment
or interest charge. In the event of prepayment, the Note Holder will use all of Maker's
prepayments to reduce the amount of Principal that Maker owes under this Note.
4
9. Default
a. Events of Default Any of the following events shall constitute a Default under this Note,
as of the date of the Notice of Default under Paragraph 10:
i. The Property or Maker is not Eligible under CDBG. The Maker is in default
under this Note, if:
(1) at the time the Note was signed by Maker, the Property:
(a) did not become the principal residence of the Maker; or
(b) was in an area identified by the Federal Emergency Management Agency as
having a special flood hazard, or, if the Property is in a flood hazard area,
flood insurance had not been obtained by Maker;
(2) at the time Maker purchased the Property, the Maker's household was not a low-
income family as stated at 24 CFR §92.217 at the later of (a) Maker's occupancy
of the Property, or (b) at the time the Principal is advanced; or
(3) at the time Maker purchased the Property, any employee, agent, consultant,
officer, or elected or appointed official who exercises or has exercised any
functions or responsibilities with respect to activities assisted with CDGB funds
or who are in a position to participate in a decision making process or gain inside
information with regard to these activities, has obtained a financial interest or
benefit from a Home Repair and Rehabilitation Payment Activity, or has an
interest in any contract, subcontract, or agreement with respect thereto, or the
proceeds thereunder, either for themselves or those with whom they have family
or business ties, during their tenure or for one year thereafter as stated at the
conflict of interest provisions of 24 C.F.R. §92.356.
ii. Any Default under the Note or the Subordinate Security Instrument:
(1) If there is an uncured default in payment of any part of principal or interest of the
Financial Institutions' $105,661.00 Note or in observance of any obligations or
covenants of any instruments securing them, the debt evidenced by this Note shall
immediately become payable at the option of Payee at the end of the cure period.
(2) If Maker defaults in the payment of this Note or in the performance of any
obligation in any instrument securing or collateral to it, and the default continues
after Payee gives Maker notice of the default and the time within which it must be
cured by Maker, as may be required by law or by written agreement, then Payee
may declare the unpaid principal balance and earned interest on this Note
immediately due.
(3) If Maker fails to perform any of Maker's obligations in this Note or in the
instruments securing it, Payee may perform those obligations and be reimbursed
5
by Maker, on demand, at the place where this Note is payable for any amounts so
paid, including attorney's fees, plus interest on those amounts from the date of
payment at the annual interest rate on the matured, unpaid amount. The amount to
be reimbursed shall be secured by all instruments securing this Note.
iii. Any Refinancing of the Senior Lien Notes. If either the Senior Lien Notes are
refinanced or the Maker's equity interest in the property pursuant to Art. 16 § 50(a)(6)
of the Texas Constitution is financed and the refinancing or financing is without
Payee's prior written approval, the outstanding principal balance and accrued interest
if any, of this Note shall be due and payable as described in Paragraph 5.
iv. Maker's Fraud or Misrepresentation. Any willful misstatement of, or failure to
disclose, a material fact by Maker relating to his or her eligibility for assistance with
respect to the Property under the Home Repair and Rehabilitation program under the
CDBG program is a Default under this Paragraph. Recovery against the Maker
responsible for the fraud or misrepresentation is not limited to the proceeds of sale of
the Property, but may include personal judgment and execution thereon to the full
extent authorized by law. Maker represents that all statements contained in the
Application for this loan with the City of Round Rock are true and correct.
b. Notice of Default and Amount Due If Maker is in Default, the Note Holder may send
Maker a written notice stating the reason Maker is in Default and telling Maker to pay
immediately: (i) the full amount of Principal then due on this Note, (ii) all of the interest
that Maker owes, and that will accrue until paid, on that amount, and (iii) all of the Note
Holder's costs and expenses reimbursable under Paragraph 9.c.
c. Payment of Note Holder's Costs and Expenses If the Note Holder has notified Maker to
pay immediately in full under Paragraph 10 and this Note or any instrument securing or
collateral to it is given to an attorney for collection or enforcement, or if suit is brought
for collection or enforcement, or if it is collected or enforced through probate,
bankruptcy, or other judicial proceeding, then Note Holder has the right to be repaid from
the proceeds of foreclosure for all of its costs and expenses in enforcing this Note to the
extent not prohibited by applicable law. Those expenses include, for example, all costs of
collection and enforcement, including reasonable attorney's fees and court costs, in
addition to other amounts due. Reasonable attorney's fees shall be 10% of all amounts
due unless either party pleads otherwise.
d. No Waiver By Note Holder Even if, at a time when Maker is in Default, the Note Holder
does not require Maker to pay immediately in full under Paragraph 10, the Note Holder
will still have the right to do so if Maker is in Default for the same reason, or for another
reason, at a later time.
10. Giving of Notices
Unless applicable law requires a different method, any notice that must be given to Maker
under this Note will be given by delivering it or by mailing it by first class mail to Maker at
6
the Property Address above, or at a different address if Maker gives the Note Holder a notice
of Maker's different address.
Any notice that must be given to the Note Holder under this Note will be given by mailing it
by first class mail to the Note Holder at the Place for Payment stated in Paragraph 1, or at a
different address, if Maker is given a notice of that different address.
11. Obligations of Persons under this Note
If more than one person signs this Note, each person is fully obligated to keep all of the
promises made in this Note, including the promise to pay the full amount owed from the
proceeds of sale of the Property. Any person who is a guarantor, surety or endorser of the
Note is also obligated to the same extent. Any person who takes over these obligations,
including the obligations of a guarantor, surety or endorser of this Note, is also obligated to
keep all of the promises made in this Note. The Note Holder may enforce its rights under this
Note against each person individually or against all of the persons signing the Note together.
12. Maximum Interest on the Debt
Interest on the debt evidenced by this Note shall not exceed the maximum amount of
nonusurious interest that may be contracted for, taken, reserved, charged, or received under
law; any interest in excess of that maximum amount shall be credited on the principal of the
debt or, if that has been paid, refunded. On any acceleration or required or permitted
prepayment, any such excess shall be canceled automatically as of the acceleration or
prepayment or, if already paid, credited on the principal of the debt or, if the principal of the
debt has been paid, refunded. This provision overrides other provisions in this and all other
instruments concerning the debt.
13. Waivers
Maker and any person who has obligations under this Note waive all demands for payment,
presentations for payment, notices of intention to accelerate maturity, notices of acceleration
of maturity, protests, notices of protest, the rights of presentment, and notice of dishonor to
the extent not prohibited by applicable law "Presentment" means Maker's right to require the
Note Holder formally to demand payment of amounts due. "Notice of dishonor" means the
right to require the Note Holder to give notice to other persons that amounts due have not
been paid.
14. Release and Satisfaction
This Note shall be deemed satisfied and Maker shall be entitled to a release of the
Subordinate Security Instrument upon payment of a reasonable fee, as determined by the
Note Holder, for preparation and recordation of the release upon forgiveness of the loan, or
repayment of the principal loan amount under Paragraph 5, upon full prepayment under
Paragraph 8, upon payment of all amounts due upon Default under Paragraph 9, or upon
recordation of a deed -in -lieu of foreclosure.
7
15. Governing Law
To the extent not inconsistent therewith, this Note and the Subordinate Security Instrument
shall be governed by the law of the State and local jurisdiction in which the Property is
located.
Each Maker is responsible for all obligations represented by this Note.
When the context requires singular nouns and pronouns include the plural.
EXECUTED AND DELIVERED as of the day and year first above written.
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on this the
2008 by Joanne Farley.
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF WILLIAMSON
eR6 day of A/01/8
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This instrument was acknowledged. before me on this the 6 day of /VO �/�it nl��
2008 by Barry Farley.
PLEASE RETURN TO:
Notary Public, State of Texas
Sheets & Crossfield, P.C.
309 E. Main St.
Round Rock, Texas 78664
8
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EXHIBIT "A"
(Legal Description of Property)
The Property (including any improvements) referred to in this agreement is described as
follows:
LOT 36, BLOCK K, SAM BASS TRAILS, SECTION ONE, a subdivision in
Williamson County, Texas, according to the map or plat thereof recorded in
Cabinet I, Slide 260, Plat Records, Williamson County, Texas.
9
DEED OF TRUST
(Community Housing Repair and Rehabilitation Program)
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,
YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION
FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC
RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE
NUMBER.
Date: , 2008
Grantor (whether one or more):
Barry and Joanne Farley, a married couple.
Grantor's Mailing Address (including county):
1511 Lantern Light Drive
Round Rock, Texas 78681
Williamson County
Trustee: Stephan L. Sheets
Trustee's Mailing Address (including county):
Stephan L. Sheets
309 East Main Street
Round Rock, Texas 78664
Williamson County
Beneficiary: City of Round Rock, Texas, a Texas home -rule municipality
Beneficiary's Mailing Address (including county):
City of Round Rock
Attn: Home Repair and Rehabilitation Program Manager
221 East Main
Round Rock, Texas 78664
Williamson County
Note(s)
Date: , 2008
Amount: $25,118.75
149526.doc/jmr
1
EXHIBIT
',Et,
Maker (whether one or more):
Barry and Joanne Farley, a married couple
Payee: CITY OF ROUND ROCK, TEXAS, a Texas home -rule municipality
Final Maturity Date: As provided in the Note.
Terms of Payment (optional): As provided in the Note.
Property (including any improvements):
The certain real property more particularly described on Exhibit "A" attached to this
Deed of Trust and by this reference incorporated in it, all fixtures and improvements
situated thereon and all rights, titles and interests appurtenant thereto.
Prior Lien(s) (including recording information):
The liens securing another note in the original principal amount of $105,661.00, filed the
26th day of January, 2005 executed by Grantor, payable to the order of Mortgage
Electronic Registration Systems, Inc., as Nominee for RBD Mortgage Company
("Financial Institution"), including without limitation the liens evidenced by that certain
deed of trust and security agreement, of even date, executed by Grantor in favor of
Financial Institution and recorded in the real property records of Williamson County,
Texas.
Other Exceptions to Conveyance and Warranty:
1. Note dated of even date herewith, between Grantor and Beneficiary (the "Note"). All
obligations and covenants in the Note shall terminate on the date Beneficiary, in its
sole discretion, issues a release of all present and future rights to establish or enforce
the Deed of Trust lien that secures the Note. The release shall be in such form as to
enable it to be recorded in the real property records of Williamson County, Texas;
and
2. Easements, rights-of-way, and prescriptive rights, whether of record or not; all
presently recorded instruments that affect the Property; taxes for 2007, the payment
of which Grantor assumes; and subsequent assessments for that and prior years due to
change in land usage, ownership, or both, the payment of which Grantor assumes.
For value received and to secure payment of the Note, Grantor conveys the Property to Trustee
in trust. Grantor warrants and agrees to defend the title to the Property. If Grantor performs all
the obligations and covenants in the Note and pays the Note according to its terms, this Deed of
Trust shall have no further effect, and Beneficiary shall release it at Grantor's expense.
2
Grantor's Obligations
Grantor agrees to:
1. keep the Property in good repair and condition;
2. pay all taxes and assessments on the Property when due;
3. preserve the lien's priority as it is established in this Deed of Trust;
4. maintain, if applicable in a form acceptable to Beneficiary, an insurance policy that:
a. provides flood insurance at any time the Property is in a flood hazard area; and
b. contains such other coverage as Beneficiary may reasonably require;
5. deliver the insurance policy to Beneficiary and deliver renewals to Beneficiary at
least ten days before expiration;
6. keep any buildings occupied as required by the insurance policy;
7. if this is not a first lien, pay all prior lien notes that Grantor is personally able to pay
and abide by all prior lien instruments;
8. if all or any part of the Property or an interest in it (including a beneficial interest) is
sold or transferred without compliance with the terms of the Note and this Deed of
Trust, immediately pay in full to Beneficiary all sums secured by this Deed of Trust;
and
9. comply at all times with the terms, representations, and conditions of the Note.
Beneficiary's Rights
1. Beneficiary may appoint in writing a substitute or successor trustee, succeeding to all
rights and responsibilities of Trustee.
2. If the proceeds of the Note are used to pay any debt secured by prior liens,
Beneficiary is subrogated to all of the rights and liens of the holders of any debt so
paid.
3. If applicable, Beneficiary may apply any proceeds received under the insurance
policy either to reduce the Note or to repair or replace damaged or destroyed
improvements covered by the policy.
4. If Grantor fails to perform any of Grantor's obligations, Beneficiary may perform
those obligations and be reimbursed by Grantor on demand at the place where the
Note is payable for any sums so paid, including attorney's fees, plus interest on those
3
sums from the dates of payment at the rate stated in the Note for matured, unpaid
amounts. The sum to be reimbursed shall be secured by this Deed of Trust.
5. If Grantor defaults on the Note, or if Grantor fails to perform any of Grantor's
obligations, or if all or any part of the Property or an interest in it (including a
beneficial interest) is sold or transferred without compliance with the terms of the
Note and this Deed of Trust, or if default occurs on a prior lien note or other
instrument, and the default continues after Beneficiary gives Grantor notice of the
default and the time within which it must be cured, as may be required by law or by
written agreement, then Beneficiary may:
a. declare the unpaid principal balance and carried interest on the Note immediately
due;
b. request Trustee to foreclose this lien, in which case Beneficiary or Beneficiary's
agent shall give notice of the foreclosure sale as provided by the Texas Property
Code as then amended; and
c. purchase the Property at any foreclosure sale by offering the highest bid and then
have the bid credited on the Note.
6. If the Grantor defaults on the Note or fails to perform any of Grantor's obligations
under this Deed of Trust, the Beneficiary shall provide the Financial Institution, a
prior lienholder, with copies of all correspondence transmitted to Grantor regarding
the default or notice of acceleration.
Trustee's Duties
If requested by Beneficiary to foreclose this lien, Trustee shall:
1. either personally or by agent give notice of the foreclosure sale as required by the
Texas Property Code as then amended;
2. sell and convey all or part of the Property to the highest bidder for cash with a general
warranty binding Grantor, subject to prior liens and to other exceptions to conveyance
and warranty;
3. from the proceeds of the sale, pay, in this order:
a. expenses of foreclosure, including a commission to Trustee of five (5) percent of
the bid;
b. to Beneficiary, the full amount of principal, interest, attorney's fees, and other
charges due and unpaid;
c. any amounts required by law to be paid before payment to Grantor; and
4
d. to Grantor, any balance; and
4. if the prior lien has not been released, give written notice to Financial Institution that
Grantor is in default under this Deed of Trust and a copy of the notice of foreclosure
sale given Grantor.
General Provisions
1. If any of the Property is sold under this Deed of Trust, Grantor shall immediately
surrender possession to the purchaser. If Grantor fails to do so, Grantor shall become
a tenant at sufferance of the purchaser, subject to an action for forcible detainer.
2. If Grantor transfers any part of the Property without Trustee's prior written consent,
Trustee may declare the Note secured by this Deed of Trust immediately payable and
invoke any remedies provided in this Deed of Trust for default. If the Property is
residential real property containing fewer than five dwelling units or a residential
manufactured home occupied by Grantor, exceptions to this provision are limited to
(a) a subordinate lien or encumbrance that does not transfer rights of occupancy of the
Property; (b) creation of a purchase -money security interest for household appliances;
(c) transfer by devise, descent, or operation of law on the death of a co -Grantor; (d)
transfer to a spouse or children of Grantor or between co -Grantors; (e) transfer to a
relative of Grantor on Grantor's death; and (f) transfer to an inter vivos trust in which
Grantor is an remains a beneficiary and occupant of the Property.
3. Recitals in any Trustee's deed conveying the Property will be presumed to be true.
4. Proceeding under this Deed of Trust, filing suit for foreclosure, or pursuing any other
remedy will not constitute an election of remedies.
5. This lien shall remain superior to liens later created even if the time of payment of all
or part of the Note is extended or part of the Property is released.
6. If any portion of the Note cannot be lawfully secured by this Deed of Trust, payments
shall be applied first to discharge that portion.
7. Grantor assigns to Beneficiary all sums payable to or received by Grantor from
condemnation of all or part of the Property, from private sale in lieu of condemnation,
and from damages caused by public works or construction on or near the Property.
After deducting any expenses incurred, including attorney's fees, Beneficiary may
release any remaining sums to Grantor or apply such sums to reduce the Note.
Beneficiary shall not be liable for failure to collect or to exercise diligence in
collecting any such sums.
8. Following the maturity of the above described Financial Institution loan, Grantor
assigns to Beneficiary absolutely, not only as collateral, all present and future rent
and other income and receipts from the Property. Prior to such maturity Borrower's
rights shall not arise under this paragraph 8. Leases are not assigned. Grantor
5
warrants the validity and enforceability of the assignment. Grantor may as
Beneficiary's licensee collect rent and other income and receipts as long as Grantor is
not in default under the Note or this Deed of Trust. Grantor will apply all rent and
other income and receipts to payment of the Note and performance of this Deed of
Trust, but if the rent and other income and receipts exceed the amount due under the
Note and Deed of Trust, Grantor may retain the excess. If Grantor defaults in
payment of the Note or performance of this Deed of Trust, Beneficiary may terminate
Grantor's license to collect and then as Grantor's agent may rent the Property if it is
vacant and collect all rent and other income and receipts. Beneficiary neither has nor
assumes any obligations as lessor or landlord with respect to any occupant of the
Property. Beneficiary may exercise Beneficiary's rights and remedies under this
paragraph 8 without taking possession of the Property. Beneficiary shall apply all rent
and other income and receipts collected under this paragraph 8 first to expenses
incurred in exercising Beneficiary's rights and remedies and then to Grantor's
obligations under the Note and this Deed of Trust in the order determined by
Beneficiary. Beneficiary is not required to act under this paragraph 8, and acting
under this paragraph 8 does not waive any of Beneficiary's other rights or remedies. If
Grantor becomes a voluntary or involuntary bankrupt, Beneficiary's filing a proof of
claim in bankruptcy will be tantamount to the appointment of a receiver under Texas
law.
9. Interest on the debt secured by this Deed of Trust shall not exceed the maximum
amount of nonusurious interest that may be contracted for, taken, reserved, charged,
or received under law; any interest in excess of that maximum amount shall be
credited on the principal of the debt or, if that has been paid, refunded. On any
acceleration or required or permitted prepayment, any such excess shall be canceled
automatically as of the acceleration or prepayment or, if already paid, credited on the
principal of the debt or, if the principal of the debt has been paid, refunded. This
provision overrides other provisions in this and all other instruments concerning the
debt.
10. Grantor represents that this Deed of Trust and the Note are given as security for
money provided for home repairs on the Property.
11. Except where otherwise required or permitted by the Beneficiary in connection with a
transfer on death, divorce, legal separation, or legal incapacity of a Grantor as
provided in the Note, the Note and this Deed of Trust may not be assumed.
12. If Grantor fails to pay any part of principal or interest secured by a prior lien or liens
on the Property when it becomes payable or defaults on any prior lien instrument, the
debt secured by this Deed of Trust shall immediately become payable at the option of
Beneficiary.
13. Beneficiary and Grantor acknowledge and agree that this Deed of Trust is subject and
subordinate in all respects to the liens, terms, covenants and conditions of the prior
lien and to all advances heretofore made or which may hereafter be made pursuant to
the prior lien, including all sums advanced for the purpose of (a) protecting or further
6
securing the lien of the prior lien or (b) constructing, renovating, repairing,
furnishing, fixturing or equipping the Property. The terms and provisions of the prior
lien are paramount and controlling, and they supersede any other terms and
provisions of this Deed of Trust in conflict therewith. In the event of a foreclosure or
deed in lieu of foreclosure of the prior lien, any provisions herein or any provision in
any collateral agreement restricting the use of the Property to low or moderate income
households or otherwise restricting the Grantor's ability to sell the Property shall have
no further force or effect on subsequent owners or purchasers of the Property. Any
person, including his successors or assigns (other than the Grantor or a person or
entity related to the Grantor), receiving title to the Property through foreclosure or
deed in lieu of foreclosure of the prior lien shall receive title to the Property free and
clear from such restrictions. Further, if the Financial Institution acquires title to the
Property pursuant to a deed in lieu of foreclosure, the lien of this Deed of Trust shall
automatically terminate upon the Financial Institution's acquisition of title, provided
that (i) the Beneficiary has been given written notice of a default under the prior lien
and (ii) the Beneficiary (or another party acting on its behalf) shall not have cured the
default under the prior lien, or diligently pursued curing the default as determined by
the Financial Institution, within the sixty-day period provided in such notice sent to
the Beneficiary.
14. To the extent not inconsistent therewith, this Deed of Trust and the Note shall be
governed by the laws of Texas and the local jurisdiction in which the Property is
located.
15. When the context requires, singular nouns and pronouns include the plural.
16. The term "Note" includes all sums secured by this Deed of Trust.
17. This Deed of Trust shall bind, inure to the benefit of, and be exercised by successors
in interest of all parties.
18. If Grantor and Maker are not the same person, the term "Grantor" shall include
Maker.
EXECUTED AND DELIVERED as of the date first above written.
(Signatures on the following page.)
GRANTOR:
GRANTOR:
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on this the .Z day of �4 ✓�1�
2008 by Joanne Farley.
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on this the 26 day of AJO
2008 by Barry Farley.
PLEASE RETURN TO:
Sheets & Crossfield, P.C.
309 E. Main St.
Round Rock, Texas 78664
8
GGA
Notary Public, State of Texas
ulurur�i
EXHIBIT "A"
(Legal Description of Property)
The Property (including any improvements) referred to in this agreement is described as
follows:
LOT 36, BLOCK K, SAM BASS TRAILS, SECTION ONE, a subdivision in
Williamson County, Texas, according to the map or plat thereof recorded in
Cabinet I, Slide 260, Plat Records, Williamson County, Texas.
9
REAL ESTATE LIEN NOTE
(Community Housing Repair and Rehabilitation Program)
Date: , 2008
Maker (whether one or more): Barry and Joanne Farley, a married couple
Maker's Mailing Address (including county):
1511 Lantern Light Drive
Round Rock, Texas 78681
Williamson County
Payee: CITY OF ROUND ROCK, TEXAS
1. Place for Payment (including county):
CITY OF ROUND ROCK
Attn: Home Repair and Rehabilitation Program Manager
221 East Main Street
Round Rock, Texas 78664
Williamson County
or any other place that Payee may designate in writing.
2. Principal Amount:
TWENTY FIVE THOUSAND, ONE HUNDRED EIGHTEEN DOLLARS AND 75/100
($25,118.75). In the event that actual costs associated with the repair and rehabilitation of the
Property are less than the aforesaid Principal Amount, Maker shall be credited the difference
between the Principal Amount and the actual costs.
3. Annual Interest Rate on Unpaid Principal from Date: The highest interest rate allowed
by law will be charged on this Note if a Default has been declared by the Note Holder as
stated in Paragraph 12 of this Note.
4. Maker's Promise to Pay
a. Purpose This Note implements requirements applicable to assistance furnished by Payee
to Maker under a program to help eligible families with home repairs and rehabilitation
being carried out by Payee, which, for certain loans may use grant funds furnished by
HUD through the CDBG program. The Payee has assisted the Maker with respect to
rehabilitation of the Property, for use as the Maker's principal residence.
149526.doc/jmr
1
b. Promise to Pay Maker promises to Pay to the order of Payee at the place for payment and
according to the terms of payment the principal amount plus interest, if any, plus other
charges at the rates stated above.
5. Terms of Payment:
a. Subsidy Repayment Obligation Principal In return for assistance Maker has received
with respect to rehabilitation of the Property, Maker promises to pay the Principal
Amount as stated in Paragraph 2 to the order of Payee. Payment of Principal under this
Note will be initially deferred. Such deferral shall end and the total Principal Amount
shall be due and payable on the date of an event of Default as stated in Paragraph 9.
b. Deferral and Payment of Principal The outstanding principal balance of this Note shall
remain the same as the amount stated in Paragraph 2 until five (5) years from the date of
this Note. If there is a Deferral Termination Event, as defined in paragraph (c) below,
within the five (5) years from the date of this Note, Maker shall repay the principal loan
amount to Payee. If there is no Deferral Termination Event within five (5) years from the
date of this Note, the loan shall be forgiven.
c. Deferral Termination Event Any of the following constitute a Deferral Termination
Event:
i. Rental during term of Note. If the Maker rents or leases (including an oral lease)
the Property to any person or entity during the term of this Note, the deferral period
stated above is terminated.
ii. Failure to Occupy Property as Principal Residence during the term of the Note.
If all Makers are continuously absent from the Property for a period of more than
thirty (30) days, or move substantially all their personal possessions out of the
Property, without the written consent of the Note Holder, the Makers shall be deemed
not to be occupying the Property as their Principal Residence and the deferral period
stated above is terminated.
iii. Any Transfer of the Property. Any transfer of the Property or any interest therein
(including a beneficial interest) within five (5) years of the signing of this Note
terminates the deferral period under this Note. Maker authorizes the Note Holder to
determine, in its sole discretion, whether a transfer of a portion of the Property, or a
partial interest therein, or any other reason has an effect on the value of the Note
Holder's interest substantial enough to be considered a transfer for purposes of this
Paragraph 9. Maker will mail, certified mail, return receipt requested, or deliver
notice of any proposed transfer and a copy of the sales contract to the Note Holder at
least fourteen (14) calendar days before the proposed Closing Date, at the Place for
Payment as stated in Paragraph 1 or any other place that Payee may designate in
writing. Exceptions to this provision are limited to (a) a subordinate lien or
encumbrance that does not transfer rights of occupancy of the Property; (b) creation
of a purchase -money security interest for household appliances; (c) transfer by devise,
descent, or operation of law on the death of a co -Grantor; (d) transfer to a spouse or
2
children of Grantor or between co -Grantors; (e) transfer to a relative of Grantor on
Grantor's death; and (f) transfer to an inter vivos trust in which Grantor is and
remains a beneficiary and occupant of the Property.
6. Security for Payment and Obligations:
a. In addition to the protections given to the Note Holder under this Note, this Note is
secured by a subordinated deed of trust, of even date, from Maker to Stephan L. Sheets,
Trustee, that conveys the Property as described below in trust (collectively, the
"Subordinate Security Instrument").
b. The lien securing this Note shall remain subordinate to the indebtedness evidenced by
one or more Notes payable to the Financial Institutions as defined below, which Notes
are secured by the Senior Liens as defined below, and as renewed, extended, re -
amortized, or otherwise adjusted from time to time; provided, however, that the renewal,
extension, or other credit extension does not constitute an increase in the unpaid principal
balance of the Financial Institutions' indebtedness.
c. The Subordinate Security Instrument describes the conditions under which Maker may be
required to make immediate payment in full of all amounts Maker owes under this Note.
One of those conditions set forth therein is that if all or any part of the Property or any
interest in it (including a beneficial interest) is sold or transferred without compliance
with the terms of this Note and the Subordinate Security Instrument, the Note Holder will
require immediate payment in full of all sums secured by the Subordinate Security
Instrument. In the event of such a sale, or in the event of any other Default under this
Note or the Subordinate Security Instrument, the Note Holder may give the Maker Notice
of Default and acceleration under Paragraph 9 of this Note.
7. Additional Defmitions:
a. "Bona Fide Net Resale Proceeds" means the amount calculated by the Note Holder by
subtracting from the contract sales price between the Maker and the proposed buyer for
the Property the amounts due on the Closing Date on any "Senior Liens" and on
"Maker's Other Liens", and also subtracting the amount of any reasonable and
customary sales expenses paid by the Maker in connection with the sale, each as
determined by the Note Holder. If any part of the contract sales price for the Property is
paid in the form of a promissory Note, or any thing of value other than lawful money of
the United States, the Note Holder is hereby authorized to assign a fair market value
thereto. Maker agrees to accept such thing of value at such assigned fair market value as
part of maker's equity, or to allow it to be retained by the Note Holder as Alternate
Principal, as the Note Holder in its sole discretion may determine.
b. "Closing Date" means the date of closing of Maker's sale of the Property to a buyer, or
if there is no formal closing, the date on which the conveyance (deed) is recorded.
3
c. "Home Repair and Rehabilitation Payment Activity" means any loan made by Payee
using either CDBG funds or other funds to assist a Homeowner with payment funds for
minor repairs on a home.
d. "Financial Institution(s)" means Mortgage Electronic Registration Systems, Inc., as
Nominee for RBD Mortgage Company.
e. "CDBG" means Community Development Block Grant program.
f. "HUD " means the United States Department of Housing and Urban Development.
g.
"Maker's Other Liens" means unpaid liens or other charges that Maker authorized, or
allowed to exist against the Property since the date of this Note. Such liens may include,
for example, liens for money borrowed to finance additional improvements, home equity
lines of credit, and other voluntary liens, liens for unpaid taxes, special assessments,
water, sewer, and other utility charges, mechanics' liens, and other liens and charges
arising by operation of law; and judgment or other creditor's liens, any of which may
affect the amount of the sales proceeds, Maker hereby authorizes Note Holder to
determine, in Note Holder's sole discretion, the amount by which these liens or charges
reduce the Bond Fide Net Resale Proceeds for the Property, and to reduce the amount
payable to Maker as maker's equity by an equal amount.
h. "Note Holder" means the lender of any authorized party who takes this Note by
assignment and is entitled to receive amounts due under this Note.
i. "Property" means the certain real property described on Exhibit "A" attached to this
Note and by this reference incorporated in it.
J.
"Senior Lien Note(s)" means the Note(s) in the original principal amount of
$105,661.00, filed the 26th day of January, 2005, executed by Maker, payable to the
order of Financial Institutions, and fully described in the Senior Liens.
k. "Senior Lien(s)" means a deed of trust(s) recorded in the real property records of
Williamson County, Texas as Document No. 2005006368 and Document No.
2005006369 securing the Senior Lien Note(s).
1. "Subordinate Security Instrument" means the instruments identified in Paragraph 6.a.
8. Maker's Right to Prepay
Maker may make a full prepayment or partial prepayments without paying any prepayment
or interest charge. In the event of prepayment, the Note Holder will use all of Maker's
prepayments to reduce the amount of Principal that Maker owes under this Note.
4
9. Default
a. Events of Default Any of the following events shall constitute a Default under this Note,
as of the date of the Notice of Default under Paragraph 10:
i. The Property or Maker is not Eligible under CDBG. The Maker is in default
under this Note, if:
(1) at the time the Note was signed by Maker, the Property:
(a) did not become the principal residence of the Maker; or
(b) was in an area identified by the Federal Emergency Management Agency as
having a special flood hazard, or, if the Property is in a flood hazard area,
flood insurance had not been obtained by Maker;
(2) at the time Maker purchased the Property, the Maker's household was not a low-
income family as stated at 24 CFR §92.217 at the later of (a) Maker's occupancy
of the Property, or (b) at the time the Principal is advanced; or
(3) at the time Maker purchased the Property, any employee, agent, consultant,
officer, or elected or appointed official who exercises or has exercised any
functions or responsibilities with respect to activities assisted with CDGB funds
or who are in a position to participate in a decision making process or gain inside
information with regard to these activities, has obtained a financial interest or
benefit from a Home Repair and Rehabilitation Payment Activity, or has an
interest in any contract, subcontract, or agreement with respect thereto, or the
proceeds thereunder, either for themselves or those with whom they have family
or business ties, during their tenure or for one year thereafter as stated at the
conflict of interest provisions of 24 C.F.R. §92.356.
ii. Any Default under the Note or the Subordinate Security Instrument:
(1) If there is an uncured default in payment of any part of principal or interest of the
Financial Institutions' $105,661.00 Note or in observance of any obligations or
covenants of any instruments securing them, the debt evidenced by this Note shall
immediately become payable at the option of Payee at the end of the cure period.
(2) If Maker defaults in the payment of this Note or in the performance of any
obligation in any instrument securing or collateral to it, and the default continues
after Payee gives Maker notice of the default and the time within which it must be
cured by Maker, as may be required by law or by written agreement, then Payee
may declare the unpaid principal balance and earned interest on this Note
immediately due.
(3) If Maker fails to perform any of Maker's obligations in this Note or in the
instruments securing it, Payee may perform those obligations and be reimbursed
5
by Maker, on demand, at the place where this Note is payable for any amounts so
paid, including attorney's fees, plus interest on those amounts from the date of
payment at the annual interest rate on the matured, unpaid amount. The amount to
be reimbursed shall be secured by all instruments securing this Note.
iii. Any Refinancing of the Senior Lien Notes. If either the Senior Lien Notes are
refinanced or the Maker's equity interest in the property pursuant to Art. 16 § 50(a)(6)
of the Texas Constitution is financed and the refinancing or financing is without
Payee's prior written approval, the outstanding principal balance and accrued interest
if any, of this Note shall be due and payable as described in Paragraph 5.
iv. Maker's Fraud or Misrepresentation. Any willful misstatement of, or failure to
disclose, a material fact by Maker relating to his or her eligibility for assistance with
respect to the Property under the Home Repair and Rehabilitation program under the
CDBG program is a Default under this Paragraph. Recovery against the Maker
responsible for the fraud or misrepresentation is not limited to the proceeds of sale of
the Property, but may include personal judgment and execution thereon to the full
extent authorized by law. Maker represents that all statements contained in the
Application for this loan with the City of Round Rock are true and correct.
b. Notice of Default and Amount Due If Maker is in Default, the Note Holder may send
Maker a written notice stating the reason Maker is in Default and telling Maker to pay
immediately: (i) the full amount of Principal then due on this Note, (ii) all of the interest
that Maker owes, and that will accrue until paid, on that amount, and (iii) all of the Note
Holder's costs and expenses reimbursable under Paragraph 9.c.
c. Payment of Note Holder's Costs and Expenses If the Note Holder has notified Maker to
pay immediately in full under Paragraph 10 and this Note or any instrument securing or
collateral to it is given to an attorney for collection or enforcement, or if suit is brought
for collection or enforcement, or if it is collected or enforced through probate,
bankruptcy, or other judicial proceeding, then Note Holder has the right to be repaid from
the proceeds of foreclosure for all of its costs and expenses in enforcing this Note to the
extent not prohibited by applicable law. Those expenses include, for example, all costs of
collection and enforcement, including reasonable attorney's fees and court costs, in
addition to other amounts due. Reasonable attorney's fees shall be 10% of all amounts
due unless either party pleads otherwise.
d. No Waiver By Note Holder Even if, at a time when Maker is in Default, the Note Holder
does not require Maker to pay immediately in full under Paragraph 10, the Note Holder
will still have the right to do so if Maker is in Default for the same reason, or for another
reason, at a later time.
10. Giving of Notices
Unless applicable law requires a different method, any notice that must be given to Maker
under this Note will be given by delivering it or by mailing it by first class mail to Maker at
6
the Property Address above, or at a different address if Maker gives the Note Holder a notice
of Maker's different address.
Any notice that must be given to the Note Holder under this Note will be given by mailing it
by first class mail to the Note Holder at the Place for Payment stated in Paragraph 1, or at a
different address, if Maker is given a notice of that different address.
11. Obligations of Persons under this Note
If more than one person signs this Note, each person is fully obligated to keep all of the
promises made in this Note, including the promise to pay the full amount owed from the
proceeds of sale of the Property. Any person who is a guarantor, surety or endorser of the
Note is also obligated to the same extent. Any person who takes over these obligations,
including the obligations of a guarantor, surety or endorser of this Note, is also obligated to
keep all of the promises made in this Note. The Note Holder may enforce its rights under this
Note against each person individually or against all of the persons signing the Note together.
12. Maximum Interest on the Debt
Interest on the debt evidenced by this Note shall not exceed the maximum amount of
nonusurious interest that may be contracted for, taken, reserved, charged, or received under
law; any interest in excess of that maximum amount shall be credited on the principal of the
debt or, if that has been paid, refunded. On any acceleration or required or permitted
prepayment, any such excess shall be canceled automatically as of the acceleration or
prepayment or, if already paid, credited on the principal of the debt or, if the principal of the
debt has been paid, refunded. This provision overrides other provisions in this and all other
instruments concerning the debt.
13. Waivers
Maker and any person who has obligations under this Note waive all demands for payment,
presentations for payment, notices of intention to accelerate maturity, notices of acceleration
of maturity, protests, notices of protest, the rights of presentment, and notice of dishonor to
the extent not prohibited by applicable law "Presentment" means Maker's right to require the
Note Holder formally to demand payment of amounts due. "Notice of dishonor" means the
right to require the Note Holder to give notice to other persons that amounts due have not
been paid.
14. Release and Satisfaction
This Note shall be deemed satisfied and Maker shall be entitled to a release of the
Subordinate Security Instrument upon payment of a reasonable fee, as determined by the
Note Holder, for preparation and recordation of the release upon forgiveness of the loan, or
repayment of the principal loan amount under Paragraph 5, upon full prepayment under
Paragraph 8, upon payment of all amounts due upon Default under Paragraph 9, or upon
recordation of a deed -in -lieu of foreclosure.
7
15. Governing Law
To the extent not inconsistent therewith, this Note and the Subordinate Security Instrument
shall be governed by the law of the State and local jurisdiction in which the Property is
located.
Each Maker is responsible for all obligations represented by this Note.
When the context requires singular nouns and pronouns include the plural.
EXECUTED AND DELIVERED as of the day and year first above written.
Jo e Farley
Barry Farl
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on this the d6 day of VO-1/r=d.
2008 by Joanne Farley.
ACKNOWLEDGMENT
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STATE OF TEXAS = /\
COUNTY OF WILLIAMSON ' .•'•
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Se -This instrument was acknowledged before me on this the o 6 day of A/0 �// �1i11�`0�\\
2008 by Barry Farley.
PLEASE RETURN TO:
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Notary Public, State of Texas
Sheets & Crossfield, P.C.
309 E. Main St.
Round Rock, Texas 78664
8
EXHIBIT "A"
(Legal Description of Property)
The Property (including any improvements) referred to in this agreement is described as
follows:
LOT 36, BLOCK K, SAM BASS TRAILS, SECTION ONE, a subdivision in
Williamson County, Texas, according to the map or plat thereof recorded in
Cabinet I, Slide 260, Plat Records, Williamson County, Texas.
9
DEED OF TRUST
(Community Housing Repair and Rehabilitation Program)
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,
YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION
FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC
RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE
NUMBER.
Date: , 2008
Grantor (whether one or more):
Barry and Joanne Farley, a married couple.
Grantor's Mailing Address (including county):
1511 Lantern Light Drive
Round Rock, Texas 78681
Williamson County
Trustee: Stephan L. Sheets
Trustee's Mailing Address (including county):
Stephan L. Sheets
309 East Main Street
Round Rock, Texas 78664
Williamson County
Beneficiary: City of Round Rock, Texas, a Texas home -rule municipality
Beneficiary's Mailing Address (including county):
City of Round Rock
Attn: Home Repair and Rehabilitation Program Manager
221 East Main
Round Rock, Texas 78664
Williamson County
Note(s)
Date: , 2008
Amount: $25,118.75
149526.doc/jmr
1
Maker (whether one or more):
Barry and Joanne Farley, a married couple
Payee: CITY OF ROUND ROCK, TEXAS, a Texas home -rule municipality
Final Maturity Date: As provided in the Note.
Terms of Payment (optional): As provided in the Note.
Property (including any improvements):
The certain real property more particularly described on Exhibit "A" attached to this
Deed of Trust and by this reference incorporated in it, all fixtures and improvements
situated thereon and all rights, titles and interests appurtenant thereto.
Prior Lien(s) (including recording information):
The liens securing another note in the original principal amount of $105,661.00, filed the
26th day of January, 2005 executed by Grantor, payable to the order of Mortgage
Electronic Registration Systems, Inc., as Nominee for RBD Mortgage Company
("Financial Institution"), including without limitation the liens evidenced by that certain
deed of trust and security agreement, of even date, executed by Grantor in favor of
Financial Institution and recorded in the real property records of Williamson County,
Texas.
Other Exceptions to Conveyance and Warranty:
1. Note dated of even date herewith, between Grantor and Beneficiary (the "Note"). All
obligations and covenants in the Note shall terminate on the date Beneficiary, in its
sole discretion, issues a release of all present and future rights to establish or enforce
the Deed of Trust lien that secures the Note. The release shall be in such form as to
enable it to be recorded in the real property records of Williamson County, Texas;
and
2. Easements, rights-of-way, and prescriptive rights, whether of record or not; all
presently recorded instruments that affect the Property; taxes for 2007, the payment
of which Grantor assumes; and subsequent assessments for that and prior years due to
change in land usage, ownership, or both, the payment of which Grantor assumes.
For value received and to secure payment of the Note, Grantor conveys the Property to Trustee
in trust. Grantor warrants and agrees to defend the title to the Property. If Grantor performs all
the obligations and covenants in the Note and pays the Note according to its terms, this Deed of
Trust shall have no further effect, and Beneficiary shall release it at Grantor's expense.
2
Grantor's Obligations
Grantor agrees to:
1. keep the Property in good repair and condition;
2. pay all taxes and assessments on the Property when due;
3. preserve the lien's priority as it is established in this Deed of Trust;
4. maintain, if applicable in a form acceptable to Beneficiary, an insurance policy that:
a. provides flood insurance at any time the Property is in a flood hazard area; and
b. contains such other coverage as Beneficiary may reasonably require;
5. deliver the insurance policy to Beneficiary and deliver renewals to Beneficiary at
least ten days before expiration;
6. keep any buildings occupied as required by the insurance policy;
7. if this is not a first lien, pay all prior lien notes that Grantor is personally able to pay
and abide by all prior lien instruments;
8. if all or any part of the Property or an interest in it (including a beneficial interest) is
sold or transferred without compliance with the terms of the Note and this Deed of
Trust, immediately pay in full to Beneficiary all sums secured by this Deed of Trust;
and
9. comply at all times with the terms, representations, and conditions of the Note.
Beneficiary's Rights
1. Beneficiary may appoint in writing a substitute or successor trustee, succeeding to all
rights and responsibilities of Trustee.
2. If the proceeds of the Note are used to pay any debt secured by prior liens,
Beneficiary is subrogated to all of the rights and liens of the holders of any debt so
paid.
3. If applicable, Beneficiary may apply any proceeds received under the insurance
policy either to reduce the Note or to repair or replace damaged or destroyed
improvements covered by the policy.
4. If Grantor fails to perform any of Grantor's obligations, Beneficiary may perform
those obligations and be reimbursed by Grantor on demand at the place where the
Note is payable for any sums so paid, including attorney's fees, plus interest on those
3
sums from the dates of payment at the rate stated in the Note for matured, unpaid
amounts. The sum to be reimbursed shall be secured by this Deed of Trust.
5. If Grantor defaults on the Note, or if Grantor fails to perform any of Grantor's
obligations, or if all or any part of the Property or an interest in it (including a
beneficial interest) is sold or transferred without compliance with the terms of the
Note and this Deed of Trust, or if default occurs on a prior lien note or other
instrument, and the default continues after Beneficiary gives Grantor notice of the
default and the time within which it must be cured, as may be required by law or by
written agreement, then Beneficiary may:
a. declare the unpaid principal balance and carried interest on the Note immediately
due;
b. request Trustee to foreclose this lien, in which case Beneficiary or Beneficiary's
agent shall give notice of the foreclosure sale as provided by the Texas Property
Code as then amended; and
c. purchase the Property at any foreclosure sale by offering the highest bid and then
have the bid credited on the Note.
6. If the Grantor defaults on the Note or fails to perform any of Grantor's obligations
under this Deed of Trust, the Beneficiary shall provide the Financial Institution, a
prior lienholder, with copies of all correspondence transmitted to Grantor regarding
the default or notice of acceleration.
Trustee's Duties
If requested by Beneficiary to foreclose this lien, Trustee shall:
1. either personally or by agent give notice of the foreclosure sale as required by the
Texas Property Code as then amended;
2. sell and convey all or part of the Property to the highest bidder for cash with a general
warranty binding Grantor, subject to prior liens and to other exceptions to conveyance
and warranty;
3. from the proceeds of the sale, pay, in this order:
a. expenses of foreclosure, including a commission to Trustee of five (5) percent of
the bid;
b. to Beneficiary, the full amount of principal, interest, attorney's fees, and other
charges due and unpaid;
c. any amounts required by law to be paid before payment to Grantor; and
4
d. to Grantor, any balance; and
4. if the prior lien has not been released, give written notice to Financial Institution that
Grantor is in default under this Deed of Trust and a copy of the notice of foreclosure
sale given Grantor.
General Provisions
1. If any of the Property is sold under this Deed of Trust, Grantor shall immediately
surrender possession to the purchaser. If Grantor fails to do so, Grantor shall become
a tenant at sufferance of the purchaser, subject to an action for forcible detainer.
2. If Grantor transfers any part of the Property without Trustee's prior written consent,
Trustee may declare the Note secured by this Deed of Trust immediately payable and
invoke any remedies provided in this Deed of Trust for default. If the Property is
residential real property containing fewer than five dwelling units or a residential
manufactured home occupied by Grantor, exceptions to this provision are limited to
(a) a subordinate lien or encumbrance that does not transfer rights of occupancy of the
Property; (b) creation of a purchase -money security interest for household appliances;
(c) transfer by devise, descent, or operation of law on the death of a co -Grantor; (d)
transfer to a spouse or children of Grantor or between co -Grantors; (e) transfer to a
relative of Grantor on Grantor's death; and (f) transfer to an inter vivos trust in which
Grantor is an remains a beneficiary and occupant of the Property.
3. Recitals in any Trustee's deed conveying the Property will be presumed to be true.
4. Proceeding under this Deed of Trust, filing suit for foreclosure, or pursuing any other
remedy will not constitute an election of remedies.
5. This lien shall remain superior to liens later created even if the time of payment of all
or part of the Note is extended or part of the Property is released.
6. If any portion of the Note cannot be lawfully secured by this Deed of Trust, payments
shall be applied first to discharge that portion.
7. Grantor assigns to Beneficiary all sums payable to or received by Grantor from
condemnation of all or part of the Property, from private sale in lieu of condemnation,
and from damages caused by public works or construction on or near the Property.
After deducting any expenses incurred, including attorney's fees, Beneficiary may
release any remaining sums to Grantor or apply such sums to reduce the Note.
Beneficiary shall not be liable for failure to collect or to exercise diligence in
collecting any such sums.
8. Following the maturity of the above described Financial Institution loan, Grantor
assigns to Beneficiary absolutely, not only as collateral, all present and future rent
and other income and receipts from the Property. Prior to such maturity Borrower's
rights shall not arise under this paragraph 8. Leases are not assigned. Grantor
5
warrants the validity and enforceability of the assignment. Grantor may as
Beneficiary's licensee collect rent and other income and receipts as long as Grantor is
not in default under the Note or this Deed of Trust. Grantor will apply all rent and
other income and receipts to payment of the Note and performance of this Deed of
Trust, but if the rent and other income and receipts exceed the amount due under the
Note and Deed of Trust, Grantor may retain the excess. If Grantor defaults in
payment of the Note or performance of this Deed of Trust, Beneficiary may terminate
Grantor's license to collect and then as Grantor's agent may rent the Property if it is
vacant and collect all rent and other income and receipts. Beneficiary neither has nor
assumes any obligations as lessor or landlord with respect to any occupant of the
Property. Beneficiary may exercise Beneficiary's rights and remedies under this
paragraph 8 without taking possession of the Property. Beneficiary shall apply all rent
and other income and receipts collected under this paragraph 8 first to expenses
incurred in exercising Beneficiary's rights and remedies and then to Grantor's
obligations under the Note and this Deed of Trust in the order determined by
Beneficiary. Beneficiary is not required to act under this paragraph 8, and acting
under this paragraph 8 does not waive any of Beneficiary's other rights or remedies. If
Grantor becomes a voluntary or involuntary bankrupt, Beneficiary's filing a proof of
claim in bankruptcy will be tantamount to the appointment of a receiver under Texas
law.
9. Interest on the debt secured by this Deed of Trust shall not exceed the maximum
amount of nonusurious interest that may be contracted for, taken, reserved, charged,
or received under law; any interest in excess of that maximum amount shall be
credited on the principal of the debt or, if that has been paid, refunded. On any
acceleration or required or permitted prepayment, any such excess shall be canceled
automatically as of the acceleration or prepayment or, if already paid, credited on the
principal of the debt or, if the principal of the debt has been paid, refunded. This
provision overrides other provisions in this and all other instruments concerning the
debt.
10. Grantor represents that this Deed of Trust and the Note are given as security for
money provided for home repairs on the Property.
11. Except where otherwise required or permitted by the Beneficiary in connection with a
transfer on death, divorce, legal separation, or legal incapacity of a Grantor as
provided in the Note, the Note and this Deed of Trust may not be assumed.
12. If Grantor fails to pay any part of principal or interest secured by a prior lien or liens
on the Property when it becomes payable or defaults on any prior lien instrument, the
debt secured by this Deed of Trust shall immediately become payable at the option of
Beneficiary.
13. Beneficiary and Grantor acknowledge and agree that this Deed of Trust is subject and
subordinate in all respects to the liens, terms, covenants and conditions of the prior
lien and to all advances heretofore made or which may hereafter be made pursuant to
the prior lien, including all sums advanced for the purpose of (a) protecting or further
6
securing the lien of the prior lien or (b) constructing, renovating, repairing,
furnishing, fixturing or equipping the Property. The terms and provisions of the prior
lien are paramount and controlling, and they supersede any other terms and
provisions of this Deed of Trust in conflict therewith. In the event of a foreclosure or
deed in lieu of foreclosure of the prior lien, any provisions herein or any provision in
any collateral agreement restricting the use of the Property to low or moderate income
households or otherwise restricting the Grantor's ability to sell the Property shall have
no further force or effect on subsequent owners or purchasers of the Property. Any
person, including his successors or assigns (other than the Grantor or a person or
entity related to the Grantor), receiving title to the Property through foreclosure or
deed in lieu of foreclosure of the prior lien shall receive title to the Property free and
clear from such restrictions. Further, if the Financial Institution acquires title to the
Property pursuant to a deed in lieu of foreclosure, the lien of this Deed of Trust shall
automatically terminate upon the Financial Institution's acquisition of title, provided
that (i) the Beneficiary has been given written notice of a default under the prior lien
and (ii) the Beneficiary (or another party acting on its behalf) shall not have cured the
default under the prior lien, or diligently pursued curing the default as determined by
the Financial Institution, within the sixty-day period provided in such notice sent to
the Beneficiary.
14. To the extent not inconsistent therewith, this Deed of Trust and the Note shall be
governed by the laws of Texas and the local jurisdiction in which the Property is
located.
15. When the context requires, singular nouns and pronouns include the plural.
16. The term "Note" includes all sums secured by this Deed of Trust.
17. This Deed of Trust shall bind, inure to the benefit of, and be exercised by successors
in interest of all parties.
18. If Grantor and Maker are not the same person, the term "Grantor" shall include
Maker.
EXECUTED AND DELIVERED as of the date first above written.
(Signatures on the following page.)
GRANTOR:
GRANTOR:
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on this the 02(.0 day of V4 ✓SM K...
2008 by Joanne Farley.
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on this the 26 day of AJO ,
2008 by Barry Farley.
PLEASE RETURN TO:
Sheets & Crossfield, P.C.
309 E. Main St.
Round Rock, Texas 78664
8
a '& -E__,A,ICTZt3
Notary Public, State of Texas
EXHIBIT "A"
(Legal Description of Property)
The Property (including any improvements) referred to in this agreement is described as
follows:
LOT 36, BLOCK K, SAM BASS TRAILS, SECTION ONE, a subdivision in
Williamson County, Texas, according to the map or plat thereof recorded in
Cabinet I, Slide 260, Plat Records, Williamson County, Texas.
i.
9
COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) -
COMMUNITY HOUSING REPAIR AND REHABILITATION PROGRAM
CONTRACTOR AGREEMENT
This CDBG Community Housing Repair and Rehabilitation Program Contractor
Agreement (Agreement), is made this day of , 2008, between the CITY OF
ROUND ROCK, Texas, 221 East Main Street, Round Rock, Texas ("CITY"), and ALL TEX
BUILDING & RESTORATION, INC., 12711 Woodcreek Drive, Willis, Texas 77318
("CONTRACTOR").
RECITALS
WHEREAS, CITY has been awarded grant funds which may be spent by CITY for the
provision of certain services authorized under the U.S. Department of Housing and Urban
Development (HUD) Community Development Block Grant (CDBG) Program; and
WHEREAS, CITY wishes to assist qualified homeowners in the minor rehabilitation of their
residence by providing a non-interest bearing loan to pay CONTRACTOR for labor, materials and
equipment to be utilized in the rehabilitation; and
WHEREAS, CITY will pay CONTRACTOR for labor, materials and equipment to be
utilized in the rehabilitation of LOT 36, BLOCK K, SAM BASS TRAILS, SECTION ONE, a
subdivision in Williamson County, Texas, according to the map or plat thereof recorded in
Cabinet I, Slide 260, Plat Records, Williamson County, Texas, also known as 1511 LANTERN
LIGHT DRIVE, Round Rock, Texas (the "Property"), as specified in the Work -Write Up Bid
Document, attached hereto and incorporated herein as Exhibit "A".
Now therefore, for and in consideration of the mutual promises and covenants set forth herein,
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, CITY and CONTRACTOR agree as follows:
ARTICLE 1
GENERAL REQUIREMENTS
1.1 CITY will pay CONTRACTOR $20,095.00 ("Contract Amount"). Funds will not be used
to pay the homeowner or members of its family.
1.2 Payment will be made by CITY for all work described in the Work -Write Up Bid
Document after all of such work is found to be satisfactorily completed and inspected by
the Construction Advisor, as defined in the City of Round Rock Minor Home Repair
Program Policies and Procedures, and the CITY Inspector. CITY will pay
CONTRACTOR for work in accordance with CITY'S Prompt Payment Policy, as defined
in the City of Round Rock 2008 Community Housing Repair and Rehabilitation Program
Policies and Procedures.
148752.doc/jmr
1
EXHIBIT
1.3 CONTRACTOR will not deviate from the work described in the Work -Write Up Bid
Document without a change order from CITY. Any such change order will be included in
an amendment to this Agreement. The Contract Amount and any change orders shall not
exceed a total amount equal to a twenty-five (25) percent increase in the original Contract
Amount.
1.4 The Contract Amount and any approved change orders will not total more than the
amount of $25,118.75.
1.5 All work specified in the Work -Write Up Bid Document will be satisfactorily completed
within ninety (90) days from the date of the Notice to Proceed.
1.6 Work -Write Up Bid Document line item deletions: None
1.7 CONTRACTOR will assign to the CITY all mechanic's lien notes and mechanic's lien
contracts on the Property held by CONTRACTOR.
ARTICLE 2
CONTRACTOR'S RESPONSIBILITIES
2.1 CONTRACTOR will ensure that all work performed under this Agreement is permitted
and inspected by CITY's Building Inspection Division. CONTRACTOR agrees to be duly
licensed under CITY ordinances and State laws and be responsible for obtaining the
building permit.
2.2 CONTRACTOR understands that it is solely responsible for meeting the terms and
conditions of this Agreement. If CONTRACTOR fails to properly perform or complete
any of the work specified in the Work -Write Up Bid Document, CONTRACTOR will not
receive funding for any work that is found to be improperly performed or incomplete.
2.3 CONTRACTOR understands that all work described in the Work -Write Up Bid Document
with the exception of line items deleted under Section 1.6 must be completed before any
funds will be paid out.
2.4 CONTRACTOR understands that the job will be inspected by a CITY Inspector and
Construction Advisor before any funds will be paid out.
2.5 CITY will provide a Notice to Proceed to CONTRACTOR to commence work.
CONTRACTOR agrees to start work within thirty (30) calendar days after receipt of the
Notice to Proceed. If CONTRACTOR fails to commence work within thirty (30) days
from the date on the Notice to Proceed, CITY will have the right to terminate this
Agreement, by providing a written notice of termination to CONTRACTOR.
2.6 CONTRACTOR agrees to complete the work within ninety (90) days from the date of the
2
Notice to Proceed. If completion is delayed for reasons beyond the CONTRACTOR's
control, CONTRACTOR will provide timely notice to CITY of the reasons for such delay.
If such good cause is claimed by CONTRACTOR, it will be CONTRACTOR'S obligation
to substantiate its claim by adequate documentation.
2.7 CONTRACTOR affirms that it has not been debarred from performing federal contract
work.
ARTICLE 3
OTHER PROGRAM REQUIREMENTS
3.1 PERMITS AND CODES. CONTRACTOR agrees to secure and pay for all necessary
permits and licenses required for CONTRACTOR'S performance and to adhere to
applicable local codes and requirements whether or not covered by the Work -Write Up
Bid Document, including any CONTRACTOR registration requirements.
3.2 DISCRIMINATION. CONTRACTOR will not exclude any person from participation in,
deny the benefits of or subject the person to discrimination under any of the
CONTRACTOR's activities while receiving federal financial assistance on the grounds
of race, color, religion, sex, national origin, age or disability.
33 WARRANTY. CONTRACTOR agrees to provide a full one-year warranty to the
homeowner, said warranty will extend to subsequent owners of the property to be
improved. The warranty will provide that improvements, hardware, and fixtures of
whatever kind or nature installed or constructed on said property by the CONTRACTOR
are of good quality and free from defects in workmanship or materials or deficiencies
subject to the warranty provided in this paragraph. CONTRACTOR and CITY agree,
however, that the warranty set forth in this paragraph will apply only to such deficiencies
and defects as to which homeowner or subsequent owners will have given written notice
by certified mail to the CONTRACTOR, at its principal place of business, within one (1)
year from the date of the final inspection and acceptance by the CITY Inspector that all
work under the Agreement has been completed.
3.4 BID. CONTRACTOR acknowledges that it has prepared the CONTRACTOR'S Work -
Write Up Bid Document, attached hereto and incorporated herein as Exhibit "A" and that
such Bid is accurate and consistent as to the name of CONTRACTOR, scope of work that
the CONTRACTOR will under -take, and price. CONTRACTOR acknowledges the
performance requirement established in the write up and warrants that all work
undertaken will conform to said specifications.
3.5 REMOVAL OF DEBRIS. Upon completion of work CONTRACTOR agrees to remove
all construction debris and surplus material from the Property and leave the Property in a
neat and clean condition.
3.6 SUBCONTRACTORS. CONTRACTOR agrees that all the warranties contained herein
will apply to all work performed under this Agreement, including that performed by any
3
Subcontractors.
3.7 FRAUDULENT ACTS. CONTRACTOR nor any of its officers, partners, owners,
agents, representatives, employees, subcontractors or parties in interest has in any way
colluded, conspired, connived or agreed, directly or indirectly with any other bidder,
firm, or person to submit a collusive or sham bid in connection with CONTRACTOR for
which the bid has been submitted or to refrain from bidding in connection with this
Agreement, or has in any manner, directly or indirectly, sought by agreement or collusion
or communication or conference with any other bidder, firm, or person to fix any
overhead, profit, or cost element of the bid price or the bid price of any other bidder, or to
secure through any collusion, conspiracy, connivance, or unlawful agreement, any
advantage against CITY or any person interested in this Agreement; and the price or
prices quoted are fair and proper and are not tainted by any collusion, conspiracy,
connivance or unlawful agreement on the part of CONTRACTOR or any of its agents,
representatives, owners, employees, or parties in interest.
3.8 INTEREST OF MEMBERS, OFFICERS, EMPLOYEES OF PUBLIC BODY,
MEMBERS OF LOCAL GOVERNING BODY, OR OTHER PUBLIC OFFICIALS. No
member, officer, or employee of CITY, or its designees or agents, no member of the City
Council, and no other public official of CITY during his/her tenure or for one (1) year
thereafter, will have any interest, direct or indirect, in any contract or subcontract, or the
proceeds thereof, for work to be performed in connection with the program assisted under
this Agreement.
3.9 PROHIBITION OF BONUS OR COMMISSION. The assistance provided under this
Agreement will not be used in payment of any bonus or commission for the purpose of
obtaining CITY approval of the application for such assistance.
3.10 STATUTE OF LIMITATIONS. As between the parties to this Agreement, as to all acts
or failures to act by either party to this Agreement, any applicable statute of limitations
will commence to run and any alleged cause of action will be deemed to have accrued in
any and all events when the party commencing said cause of action knew or should have
known of the existence of the subject act(s) or failure(s) to act.
3.11 INDEMNIFICATION. CONTRACTOR will defend, indemnify, and hold CITY, its
successors, assigns, officers, employees and elected officials harmless from and against
all suits, actions, legal proceedings, claims, demands, damages, costs, expenses,
attorney's fees, and any and all other costs or fees arising out of, or incident to,
concerning or resulting from the fault of CONTRACTOR, or CONTRACTOR's agents,
employees or subcontractors, in the performance of CONTRACTOR's obligations under
this Agreement, no matter how, or to whom, such loss may occur. Nothing herein will be
deemed to limit the rights of CITY or CONTRACTOR (including, but not limited to the
right to seek contribution) against any third party who may be liable for an indemnified
claim.
3.12 CHANGE ORDERS. CONTRACTOR expressly agrees that no material changes or
alterations in the Work -Write Up Bid Document or price provided above will be made
4
unless in writing, mutually agreed by the homeowner, CONTRACTOR and authorized
by CITY.
3.13 TERMS. All references in this Agreement to any particular gender are for convenience
only and will be construed and interpreted to be of the appropriate gender. For the
purposes of this Agreement the term "will" is mandatory.
3.14 SEVERABILITY. Should any provision in this Agreement be found or deemed to be
invalid, this Agreement will be construed as not containing such provision, and all other
provisions which are otherwise lawful will remain in full force and effect, and to this end
the provisions of this Agreement are declared to be severable.
3.15 PUBLIC INFORMATION ACT. The CITY is governed by the Texas Public Information
Act, Chapter 552 of the Texas Government Code. This Agreement and all written
information generated under this Agreement may be subject to release under this Act.
3.16 PERFORMANCE. In performing this Agreement, CONTRACTOR will comply with all
local, state and federal laws.
3.17 LIEN WAIVERS. CONTRACTOR agrees to protect, defend, and indemnify homeowner
and CITY from any claims for unpaid work, labor, or materials with respect to
CONTRACTOR'S performance. Final payment will not be paid until the
CONTRACTOR has delivered to CITY complete release of all liens for work completed
arising out of CONTRACTOR'S performance or a receipt in full, covering all labor and
materials for which a lien could be filed or a bond satisfactory to the homeowner and
CITY indemnifying him against any lien.
3.18 REPORTING REQUIREMENTS. CONTRACTOR agrees to submit a W9 Form,
attached hereto and incorporated herein as Exhibit "B" to fulfill reporting requirements
with the Internal Revenue Service.
ARTICLE 4
SUSPENSION AND TERMINATION
4.1 If CONTRACTOR fails to fulfill in a timely and proper manner its obligations under this
Agreement, or violates any of the terms or conditions of this Agreement, then the
CONTRACTOR will have ten (10) days from the date it receives written notice from
CITY directing it to cure or correct the defects. If CONTRACTOR fails to cure or
correct the defects, CITY will have the right to terminate this Agreement and to select a
substitute CONTRACTOR. If the expense of finishing the work exceeds the amount of
this Agreement, CONTRACTOR will pay the difference to CITY. Should
CONTRACTOR fail to make corrections as directed by CITY, and such breach of
contract results in a violation of federal law or regulation for which CITY receives a
demand of reimbursement of grant funds from HUD or its successor, CITY may
terminate this Agreement immediately, and may recover from CONTRACTOR the
5
amount sought by HUD for reimbursement, up to the full amount of funds
CONTRACTOR received from CITY.
4.2 CONTRACTOR will not be relieved of the liability to CITY for damages sustained by
the CITY by virtue of any breach of this Agreement by CONTRACTOR. CITY may
withhold payment to CONTRACTOR until the amount of monetary damages due CITY
from CONTRACTOR is determined.
4.3 If CITY becomes aware of any CONTRACTOR activity which could jeopardize CITY's
position with HUD and cause CITY to return CDBG funds or other federal funds
received by CITY, CITY may take appropriate action, including injunctive relief against
CONTRACTOR, to terminate or prevent the activity. Failure of CITY to exercise this
right will not constitute a waiver by CITY of its right to demand payment or to seek any
other relief in law or in equity to which it may be entitled.
ARTICLE 5
PAYMENTS
5.1 For work completed by CONTRACTOR, as described in the Work -Write Up Bid
Document, CITY agrees to pay CONTRACTOR the Contract Amount after all of such
work is found to be satisfactorily completed and is inspected by the Construction Advisor
and CITY Inspector, in accordance with the CITY'S Prompt Payment Policy.
ARTICLE 6
ATTORNEY'S FEES
6.1 Any party to this Agreement who prevails in any legal proceedings between the parties
regarding this Agreement will be entitled to recover court costs and reasonable attorney's
fees from the non -prevailing party.
ARTICLE 7
VENUE AND REMEDIES
7.1 This Agreement is governed by the laws of the State of Texas. Exclusive venue for any
dispute arising under this Agreement is in Williamson County, Texas.
ARTICLE 8
SUCCESSORS AND ASSIGNS
8.1 CITY and CONTRACTOR, respectively, bind themselves, their successors, assigns and
legal representatives to the other party to this Agreement and to the successors, assigns
and legal representatives of the other party with respect to all covenants of this
Agreement. Except for CONTRACTOR'S assignment of mechanic's lien contracts and
mechanic's lien notes to the CITY pursuant to Paragraph 1.7, neither CITY nor
CONTRACTOR will assign, sublet, or transfer any interest in this Agreement without the
6
written consent of the other.
ARTICLE 9
ENUMERATION OF CONTRACT DOCUMENTS
9.1 This Agreement represents the entire and integrated agreement between CITY and
CONTRACTOR for the work specified in Exhibit "A" and supersedes all prior
negotiations, representations or arguments either written or oral. This Agreement may be
amended only by written instrument signed by CITY and CONTRACTOR. The
Agreement contains the following exhibits attached to and incorporated in this
Agreement for all purposes:
(1) Work -Write Up Bid Document (Exhibit "A");
(2) W9 Form (Exhibit "B").
ARTICLE 10
ACKNOWLEDGMENT
10.1 The above warranties are in addition to, and not in limitation of, any and all other rights
and remedies to which CITY and the homeowner, or subsequent owners, may be entitled,
at law or in equity, and will survive the conveyance of title, delivery of possession of the
Property, or other final settlement made by the homeowner and will be binding on the
undersigned notwithstanding any provision to the contrary contained in any instrument
heretofore, and thereafter executed by the homeowner.
This Agreement is effective as of the date first written above.
CONTRACTOR: CITY:
ALL TEX BUILDING & RESTORATION, INC. CITY OF ROUND ROCK
Name Alan McGraw,
Mayor
Title
7
raj
H
Contractor Name
Contractor Signature
Bid Due Date: 9/16/2008
PROJECT TYPE: Rehabilitation
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Fenn 1N-9
(Rev. November 2005)
0oponmaa at the Treasury
internal Revenue service
Request for Taxpayer
Identification Number and Certification
Give form to the
requester. Do not
send to the IRS.
Name (as shown on youcinree tax retunr)
p)_n r RI is d-
Business name. if different from above
errv--C
[] Individual/ p p�� Cmpoca!]on 1-3Pannershtp 0 Other b
Check appropriate box:sole
Exempt from backup
❑ wahholding
Icnirr stmet.and 1/fit. or suite nal
City. state. and BP coda
will ,s T?(
List account number(s) here (optional)
Requester's name and address (optional}
Part 1
Taxpayer Identification Number (11N)
Enter your T1N In the appropriate box. The TIN provided must match the name given on Une 1 to avoid
backup withholding. For individuals. this is your socia( security number (SSN). However, for a resident
alien, sole proprietor. or did entity, see the Part I Instructions on page 3. For other entitles, it is
your employer identification number (EIN). if you do not have a number, see How to get a TIN on page 3.
Note. lithe account Is in more than one name, see the chart on page 4 for guidelines on whose
number to enter.
Part it
Certification
Social security number
1 1.1•I -I.1 1 I
or
Employer on number
5m7 13IolI1a
Under penalties of perjury, I certify that
1. The number shown on this form is my correct taxpayer identification number (ori am waiting for a number to be issued to me), and
2. I am not subject to backup withholding because: (a) I am exempt from badap withholding. or (b) I have not been notified by the Internal
Revenue Sen4ce (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup wkhhotding, and
3. I am a U.S. person (inducing a U.S. resident alien).
Certification insbuctions.You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup
withholding because you have failed to report all interest and dividends on your tax retum. For real estate transactions, kern 2 does not apply.
For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement
arrangement (IRA), and generally. payments other than Interest and dividends, you are not required to sign the Certification, but you must
provide your correct 11N. (See the instructions on page 4.)
Sign
Here
Signature of • kvtce___
U.S. person ►
Purpose of Form
A person who is required to file an information return with the
IRS, must obtain your correct taxpayer identification number
(TIN) to report for example, income paid to you, real estate
transactions, mortgage interest you paid, acquisition or
abandonment of secured property, cancellation of debt, or
contributions you made to an IRA'
U.S. person. Use Form W-9 only if you am a U.S. person
(including a resident alien), to provide your correct TiN to the
person requesting it (the requester) and, when applicable, to:
1. Certify that the TIN you are giving is correct (or you are
waiting for a number to be issued),
2. Certify that you are not subject to backup withholding, or
3. Claim exemption from backup withholding if you are a
U.S. exempt payee.
In 3 above. if applicable, you are also certifying that as a
U.S. person, your allocable share of any partnership income
from a U.S. trade or business is not subject to the
withholding tax on foreign partners' share of effectively
connected income.
Note. If a requester gives you a form other than Form W-9 to
request your 11N, you must use the requester's form if it is
substantially similar to this Form W-9.
For federal tax purposes, you are considered a person if you
are:
EXHIBIT
IIBrr
Date 11.-
Purpose
~
ALLt 0,6
• An individual who is a citizen or resident of the United
States,
• A partnership, corporation, company, or association
created or organized in the United States or under the laws
of the United States, or
• Any estate (other than a foreign estate) or trust. See
Regulations sections 301.7701-6(a) and 7(a) for additional
information.
Special rules for partnerships. Partnerships that conduct a
trade or business in the United States are generally required
to pay a withholding tax on any foreign partners' share of
income from such business. Further, in certain cases where a
Form W-9 has not been received, a partnership is required to
presume that a partner is a foreign person, and pay the
withholding tax. Therefore, if you are a U.S. person that Is a
partner in a partnership conducting a trade or business in the
• United States, provide Form W-9 to the partnership to
establish yourU.S. status and avoid withholding on your
share of partnership income.
The person who gives Form W-9 to the partnership for
purposes of establishing Its U.S. status and avoiding
withholding on its allocable share of net income from the
partnership conducting a trade or business in the United
States is in the following cases:
• The U.S. owner of a disregarded entity and not the entity,
Cat. No. 10231X Formlilt-9 (Rev. 11-2005)
DATE: December 11, 2008
SUBJECT: City Council Meeting — December 18, 2008
ITEM: *7H3. Consider a resolution authorizing the Mayor to execute a Community
Housing Repair and Rehabilitation Agreement with All Tex Building and
Restoration, Inc. and Barry and Joanne Farley to make repairs to their
home located at 1511 Lantern Light Drive.
Department:
Staff Person:
Justification:
Planning and Community Development
Mona Ryan, Community Development Coordinator
This property requires upgrades and repairs to bring it to minimum code standards.
Funding:
Cost: $20,095.00
Source of funds: CDBG HUD Entitlement Fund
Outside Resources: N/A
Background Information:
The contractor will be paid directly by the City of Round Rock from the CDBG HUD Entitlement
Fund. The major work to be done on this property includes structural improvements,
weatherization, termite treatment, plumbing, electrical, exterior improvements, and HVAC
work. This house was constructed in 1993.
Public Comment: N/A
EXECUTED
DOCUMENT
FOLLOWS
COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) -
COMMUNITY HOUSING REPAIR AND REHABILITATION
HOMEOWNER AGREEMENT
This CDBG Community Housing Repair and Rehabilitation Homeowner Agreement
(Agreement), is made this Olt day ofAL4 2008, between the CITY OF ROUND ROCK,
Texas, 221 East Main Street, Round Rock, Texas (CITY), and Barry Farley and Joanne Farley, a
married couple, whose address is 1511 Lantern Light Drive, Round Rock, Texas, 78681
(HOMEOWNER).
RECITALS
WHEREAS, the CITY has been awarded grant funds which may be spent by the CITY for
the provision of certain services authorized under the U.S. Department of Housing and Urban
Development (HUD) Community Development Block Grant (CDBG) Program; and
WHEREAS, CITY wishes to assist qualified homeowners in the minor rehabilitation of their
residence by providing a non-interest bearing loan to pay a contractor for labor, materials and
equipment to be utilized in the rehabilitation; and
WHEREAS, HOMEOWNER has qualified for the rehabilitation of LOT 36, BLOCK K,
SAM BASS TRAILS, SECTION ONE, a subdivision in Williamson County, Texas, according to
the map or plat thereof recorded in Cabinet I, Slide 260, Plat Records, Williamson County, Texas,
also known as 1511 LANTERN LIGHT DRIVE, Round Rock, Texas 78681 (the "Property"), as
specified in the Work Write -Up Bid Document, attached hereto and incorporated herein as Exhibit
Now therefore, for and in consideration of the mutual promises and covenants set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the CITY and HOMEOWNER agree as follows:
1.1
ARTICLE 1
GENERAL REQUIREMENTS
CITY will pay a contractor, by separate agreement attached hereto and incorporated herein
as Exhibit "C" (Contractor's Agreement), $20,095.00, (Contract Price) for labor, materials
and equipment utilized in the rehabilitation of the Property, as specified in the Work Write -
Up Bid Document. Funds will not be used to pay HOMEOWNER or members of its
family.
1.2 The Contract Price and any approved change orders will not total more than $25,118.75.
1.3 The loan awarded is forgivable provided the terms of this Agreement are met.
149415.doc/jmr
1
R -0?) -12,--t?)- 1002
ARTICLE 2
HOMEOWNER'S RESPONSIBILITIES
2.1 HOMEOWNER has qualified for a non-interest bearing loan under the Low to Moderate
Income guidelines as set forth in Section 8, Income Limits established and amended
annually by HUD, attached hereto and incorporated herein as Exhibit "B".
2.2 HOMEOWNER has resided in and been the owner(s) of the residence to be rehabilitated
for at least one (1) year prior to the submission of its application.
2.3 In order for the loan to be forgiven, the HOMEOWNER shall retain ownership of the
residence rehabilitated for at least five (5) years from the date of the Real Estate Lien Note
and Deed of Trust securing the loan awarded attached hereto and incorporated herein as
Exhibits "D" and "E". If a Deferral Termination Event, as that term is defined in the Real
Estate Lien Note, including, but not limited to the sale or rental of the Property, or failure
by the HOMEOWNER to occupy the Property as a primary residence, occurs prior to the
expiration of the five (5) years, HOMEOWNER shall pay the Real Estate Lien Note in full,
according to its terms.
2.4 The residence to be rehabilitated is not located in a flood zone area as defined in CITY's
Flood Insurance Map, produced by the Federal Emergency Management Agency, or if it is
located in a flood zone, HOMEOWNER has sufficient flood insurance, which
HOMEOWNER will keep current for at least five (5) years after receiving the award.
2.5 All property taxes on the Property are paid up to date, including CITY, County and
applicable School District Taxes.
2.6 The residence is not under a Contract for Deed, or any similar purchase agreement, in
which HOMEOWNER does not obtain legal title until final payment is made.
HOMEOWNER has not received HUD Program assistance for the preceding five (5)
years.
2.7 HOMEOWNER understands and agrees that the work performed by contractor will be
inspected by the Construction Advisor, as defined in the City of Round Rock Housing
Repair and Rehabilitation Program Policies and Procedures, and a City Inspector before
any funds are paid out and the rehabilitation is completed.
ARTICLE 3
OTHER PROGRAM REQUIREMENTS
3.1 DISCRIMINATION. HOMEOWNER will not exclude any person from participation in,
deny the benefits of or subject the person to discrimination under any of the contractor's
activities while receiving federal financial assistance on the grounds of race, color,
religion, sex, national origin, age or disability.
2
3.2 INTEREST OF MEMBERS, OFFICERS, EMPLOYEES OF PUBLIC BODY,
MEMBERS OF LOCAL GOVERNING BODY, OR OTHER PUBLIC OFFICIALS. No
member, officer, or employee of CITY, or its designees or agents, no member of the City
Council, and no other public official of CITY during his/her tenure or for one (1) year
thereafter, will have any interest, direct or indirect, in any contract or subcontract, or the
proceeds thereof, for work to be performed in connection with the program assisted under
this Agreement.
3.3 PROHIBITION OF BONUS OR COMMISSION. The assistance provided under this
Agreement will not be used in payment of any bonus or commission for the purpose of
obtaining CITY approval of the application for such assistance.
3.4 STATUTE OF LIMITATIONS. As between the parties to this Agreement, as to all acts
or failures to act by either party to this Agreement, any applicable statute of limitations
will commence to run and any alleged cause of action will be deemed to have accrued in
any and all events when the party commencing said cause of action knew or should have
known of the existence of the subject act(s) or failure(s) to act.
3.5 LIEN. HOMEOWNER agrees that a lien shall be placed against the Property for a period
of five (5) years after the work performed by the contractor has been approved by the
Construction Advisor.
3.6 INDEMNIFICATION. HOMEOWNER will defend, indemnify, and hold CITY, its
successors, assigns, officers, employees and elected officials harmless from and against
all suits, actions, legal proceedings, claims, demands, damages, costs, expenses,
attorney's fees, and any and all other costs or fees arising out of, or incident to,
concerning or resulting from this Agreement, no matter how, or to whom, such loss may
occur. Nothing herein will be deemed to limit the rights of CITY or HOMEOWNER
(including, but not limited to the right to seek contribution) against any third party who
may be liable for an indemnified claim.
3.7 CHANGE ORDERS. HOMEOWNER expressly agrees that no material changes or
alterations in the Work Write -Up Bid Document or Contract Price provided above will be
made unless in writing, mutually agreed by HOMEOWNER, the contractor and
authorized by CITY.
3.8 TERMS. All references in this Agreement to any particular gender are for convenience
only and will be construed and interpreted to be of the appropriate gender. For the
purposes of this Agreement the term "will" is mandatory.
3.9 SEVERABILITY. Should any provision in this Agreement be found or deemed to be
invalid, this Agreement will be construed as not containing such provision, and all other
provisions which are otherwise lawful will remain in full force and effect, and to this end
the provisions of this Agreement are declared to be severable.
3
3.10 PUBLIC INFORMATION ACT. The City of Round Rock is governed by the Texas
Public Information Act, Chapter 552 of the Texas Government Code. This Agreement
and all written information generated under this Agreement may be subject to release
under this Act.
ARTICLE 4
SUSPENSION AND TERMINATION
4.1 If HOMEOWNER fails to fulfill in a timely and proper manner their obligations under
this Agreement, or violates any of the terms or conditions of this Agreement, then
HOMEOWNER will have ten (10) days from the date it receives written notice from
CITY directing it to cure or correct the defects or failures to comply. Should
HOMEOWNER fail to make corrections as directed by CITY, and such breach of
contract results in a violation of federal law or regulation for which CITY receives a
demand of reimbursement of grant funds from HUD or its successor, CITY may
terminate this Agreement immediately, and may recover from HOMEOWNER the
amount sought by HUD for reimbursement, up to the full amount of the award.
4.2 HOMEOWNER will not be relieved of the liability to the CITY for damages sustained by
CITY by virtue of any breach of this Agreement by HOMEOWNER.
4.3 If CITY becomes aware of any HOMEOWNER activity which could jeopardize CITY's
position with HUD and cause CITY to return CDBG funds or other federal funds
received by CITY, CITY may take appropriate action, including injunctive relief against
HOMEOWNER, to terminate or prevent the activity. Failure of CITY to exercise this
right will not constitute a waiver by CITY of its right to demand payment or to seek any
other relief in law or in equity to which it may be entitled.
ARTICLE 5
ATTORNEY'S FEES
5.1 Any party to this Agreement who prevails in any legal proceedings between the parties
regarding this Agreement will be entitled to recover court costs and reasonable attorney's
fees from the non -prevailing party.
ARTICLE 6
VENUE AND REMEDIES
6.1 This Agreement is governed by the laws of the State of Texas. Exclusive venue for any
dispute arising under this Agreement is in Williamson County, Texas.
4
ARTICLE 7
SUCCESSORS AND ASSIGNS
7.1 CITY and HOMEOWNER, respectively, bind themselves, their successors, assigns and
legal representatives to the other party to this Agreement and to the successors, assigns
and legal representatives of the other party with respect to all covenants of this
Agreement. Neither CITY nor HOMEOWNER will assign, sublet, or transfer any
interest in this Agreement without the written consent of the other.
ARTICLE 8
ENUMERATION OF CONTRACT DOCUMENTS
8.1 This Agreement represents the entire and integrated agreement between CITY and
HOMEOWNER for the work specified in Exhibit "A" and supersedes all prior
negotiations, representations or arguments either written or oral. This Agreement may be
amended only by written instrument signed by CITY and HOMEOWNER. The
Agreement contains the following exhibits attached to and incorporated in this
Agreement for all purposes:
(1) Work Write -Up Bid Document (Exhibit "A")
(2) HUD Section 8 Income Limits (Exhibit "B")
(3) Contractor's Agreement (Exhibit "C")
(4) Real Estate Lien Note (Exhibit "D")
(5) Deed of Trust (Exhibit "E")
This Agreement is effective as of the date first written above.
HOMEOWNER:
Barry Farley
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HOMED
Joanne Farley
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HOMEOWNER Signature
5
CITY:
City of Round Rock
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Alan McGraw, Mayor
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COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) -
COMMUNITY HOUSING REPAIR AND REHABILITATION PROGRAM
CONTRACTOR AGREEMENT
This CDBG Community Housing Repair and Rehabilitation Program Contractor
Agreement (Agreement), is made this day of , 2008, between the CITY OF
ROUND ROCK, Texas, 221 East Main Street, Round Rock, Texas ('`CITY"), and ALL TEX
BUILDING & RESTORATION, INC., 12711 Woodcreek Drive, Willis, Texas 77318
("CONTRACTOR").
RECITALS
WHEREAS, CITY has been awarded grant funds which may be spent by CITY for the
provision of certain services authorized under the U.S. Department of Housing and Urban
Development (HUD) Community Development Block Grant (CDBG) Program; and
WHEREAS, CITY wishes to assist qualified homeowners in the minor rehabilitation of their
residence by providing a non-interest bearing loan to pay CONTRACTOR for labor, materials and
equipment to be utilized in the rehabilitation; and
WHEREAS, CITY will pay CONTRACTOR for labor, materials and equipment to be
utilized in the rehabilitation of LOT 36, BLOCK K, SAM BASS TRAILS, SECTION ONE, a
subdivision in Williamson County, Texas, according to the map or plat thereof recorded in
Cabinet I, Slide 260, Plat Records, Williamson County, Texas, also known as 1511 LANTERN
LIGHT DRIVE, Round Rock, Texas (the "Property"), as specified in the Work -Write Up Bid
Document, attached hereto and incorporated herein as Exhibit "A".
Now therefore, for and in consideration of the mutual promises and covenants set forth herein,
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, CITY and CONTRACTOR agree as follows:
ARTICLE 1
GENERAL REQUIREMENTS
1.1 CITY will pay CONTRACTOR $20,095.00 ("Contract Amount"). Funds will not be used
to pay the homeowner or members of its family.
1.2 Payment will be made by CITY for all work described in the Work -Write Up Bid
Document after all of such work is found to be satisfactorily completed and inspected by
the Construction Advisor, as defined in the City of Round Rock Minor Home Repair
Program Policies and Procedures, and the CITY Inspector. CITY will pay
CONTRACTOR for work in accordance with CITY'S Prompt Payment Policy, as defined
in the City of Round Rock 2008 Community Housing Repair and Rehabilitation Program
Policies and Procedures.
148752.doc/jmr
1
EXHIBIT
„d,,
1.3 CONTRACTOR will not deviate from the work described in the Work -Write Up Bid
Document without a change order from CITY. Any such change order will be included in
an amendment to this Agreement. The Contract Amount and any change orders shall not
exceed a total amount equal to a twenty-five (25) percent increase in the original Contract
Amount.
1.4 The Contract Amount and any approved change orders will not total more than the
amount of $25,118.75.
1.5 All work specified in the Work -Write Up Bid Document will be satisfactorily completed
within ninety (90) days from the date of the Notice to Proceed.
1.6 Work -Write Up Bid Document line item deletions: None
1.7 CONTRACTOR will assign to the CITY all mechanic's lien notes and mechanic's lien
contracts on the Property held by CONTRACTOR.
ARTICLE 2
CONTRACTOR'S RESPONSIBILITIES
2.1 CONTRACTOR will ensure that all work performed under this Agreement is permitted
and inspected by CITY's Building Inspection Division. CONTRACTOR agrees to be duly
licensed under CITY ordinances and State laws and be responsible for obtaining the
building permit.
2.2 CONTRACTOR understands that it is solely responsible for meeting the terms and
conditions of this Agreement. If CONTRACTOR fails to properly perform or complete
any of the work specified in the Work -Write Up Bid Document, CONTRACTOR will not
receive funding for any work that is found to be improperly performed or incomplete.
2.3 CONTRACTOR understands that all work described in the Work -Write Up Bid Document
with the exception of line items deleted under Section 1.6 must be completed before any
funds will be paid out.
2.4 CONTRACTOR understands that the job will be inspected by a CITY Inspector and
Construction Advisor before any funds will be paid out.
2.5 CITY will provide a Notice to Proceed to CONTRACTOR to commence work.
CONTRACTOR agrees to start work within thirty (30) calendar days after receipt of the
Notice to Proceed. If CONTRACTOR fails to commence work within thirty (30) days
from the date on the Notice to Proceed, CITY will have the right to terminate this
Agreement, by providing a written notice of termination to CONTRACTOR.
2.6 CONTRACTOR agrees to complete the work within ninety (90) days from the date of the
2
Notice to Proceed. If completion is delayed for reasons beyond the CONTRACTOR's
control, CONTRACTOR will provide timely notice to CITY of the reasons for such delay.
If such good cause is claimed by CONTRACTOR, it will be CONTRACTOR'S obligation
to substantiate its claim by adequate documentation.
2.7 CONTRACTOR affirms that it has not been debarred from performing federal contract
work.
ARTICLE 3
OTHER PROGRAM REQUIREMENTS
3.1 PERMITS AND CODES. CONTRACTOR agrees to secure and pay for all necessary
permits and licenses required for CONTRACTOR'S performance and to adhere to
applicable local codes and requirements whether or not covered by the Work -Write Up
Bid Document, including any CONTRACTOR registration requirements.
3.2 DISCRIMINATION. CONTRACTOR will not exclude any person from participation in,
deny the benefits of or subject the person to discrimination under any of the
CONTRACTOR's activities while receiving federal financial assistance on the grounds
of race, color, religion, sex, national origin, age or disability.
3.3 WARRANTY. CONTRACTOR agrees to provide a full one-year warranty to the
homeowner, said warranty will extend to subsequent owners of the property to be
improved. The warranty will provide that improvements, hardware, and fixtures of
whatever kind or nature installed or constructed on said property by the CONTRACTOR
are of good quality and free from defects in workmanship or materials or deficiencies
subject to the warranty provided in this paragraph. CONTRACTOR and CITY agree,
however, that the warranty set forth in this paragraph will apply only to such deficiencies
and defects as to which homeowner or subsequent owners will have given written notice
by certified mail to the CONTRACTOR, at its principal place of business, within one (1)
year from the date of the final inspection and acceptance by the CITY Inspector that all
work under the Agreement has been completed.
3.4 BID. CONTRACTOR acknowledges that it has prepared the CONTRACTOR'S Work -
Write Up Bid Document, attached hereto and incorporated herein as Exhibit "A" and that
such Bid is accurate and consistent as to the name of CONTRACTOR, scope of work that
the CONTRACTOR will under -take, and price. CONTRACTOR acknowledges the
performance requirement established in the write up and warrants that all work
undertaken will conform to said specifications.
3.5 REMOVAL OF DEBRIS. Upon completion of work CONTRACTOR agrees to remove
all construction debris and surplus material from the Property and leave the Property in a
neat and clean condition.
3.6 SUBCONTRACTORS. CONTRACTOR agrees that all the warranties contained herein
will apply to all work performed under this Agreement, including that performed by any
3
Subcontractors.
3.7 FRAUDULENT ACTS. CONTRACTOR nor any of its officers, partners, owners,
agents, representatives, employees, subcontractors or parties in interest has in any way
colluded, conspired, connived or agreed, directly or indirectly with any other bidder,
firm, or person to submit a collusive or sham bid in connection with CONTRACTOR for
which the bid has been submitted or to refrain from bidding in connection with this
Agreement, or has in any manner, directly or indirectly, sought by agreement or collusion
or communication or conference with any other bidder, firm, or person to fix any
overhead, profit, or cost element of the bid price or the bid price of any other bidder, or to
secure through any collusion, conspiracy, connivance, or unlawful agreement, any
advantage against CITY or any person interested in this Agreement; and the price or
prices quoted are fair and proper and are not tainted by any collusion, conspiracy,
connivance or unlawful agreement on the part of CONTRACTOR or any of its agents,
representatives, owners, employees, or parties in interest.
3.8 INTEREST OF MEMBERS, OFFICERS, EMPLOYEES OF PUBLIC BODY,
MEMBERS OF LOCAL GOVERNING BODY, OR OTHER PUBLIC OFFICIALS. No
member, officer, or employee of CITY, or its designees or agents, no member of the City
Council, and no other public official of CITY during his/her tenure or for one (1) year
thereafter, will have any interest, direct or indirect, in any contract or subcontract, or the
proceeds thereof, for work to be performed in connection with the program assisted under
this Agreement.
3.9 PROHIBITION OF BONUS OR COMMISSION. The assistance provided under this
Agreement will not be used in payment of any bonus or commission for the purpose of
obtaining CITY approval of the application for such assistance.
3.10 STATUTE OF LIMITATIONS. As between the parties to this Agreement, as to all acts
or failures to act by either party to this Agreement, any applicable statute of limitations
will commence to run and any alleged cause of action will be deemed to have accrued in
any and all events when the party commencing said cause of action knew or should have
known of the existence of the subject act(s) or failure(s) to act.
3.11 INDEMNIFICATION. CONTRACTOR will defend, indemnify, and hold CITY, its
successors, assigns, officers, employees and elected officials harmless from and against
all suits, actions, legal proceedings, claims, demands, damages, costs, expenses,
attorney's fees, and any and all other costs or fees arising out of, or incident to,
concerning or resulting from the fault of CONTRACTOR, or CONTRACTOR's agents,
employees or subcontractors, in the performance of CONTRACTOR's obligations under
this Agreement, no matter how, or to whom, such loss may occur. Nothing herein will be
deemed to limit the rights of CITY or CONTRACTOR (including, but not limited to the
right to seek contribution) against any third party who may be liable for an indemnified
claim.
3.12 CHANGE ORDERS. CONTRACTOR expressly agrees that no material changes or
alterations in the Work -Write Up Bid Document or price provided above will be made
4
unless in writing, mutually agreed by the homeowner, CONTRACTOR and authorized
by CITY.
3.13 TERMS. All references in this Agreement to any particular gender are for convenience
only and will be construed and interpreted to be of the appropriate gender. For the
purposes of this Agreement the term "will" is mandatory.
3.14 SEVERABILITY. Should any provision in this Agreement be found or deemed to be
invalid, this Agreement will be construed as not containing such provision, and all other
provisions which are otherwise lawful will remain in full force and effect, and to this end
the provisions of this Agreement are declared to be severable.
3.15 PUBLIC INFORMATION ACT. The CITY is governed by the Texas Public Information
Act, Chapter 552 of the Texas Government Code. This Agreement and all written
information generated under this Agreement may be subject to release under this Act.
3.16 PERFORMANCE. In performing this Agreement, CONTRACTOR will comply with all
local, state and federal laws.
3.17 LIEN WAIVERS. CONTRACTOR agrees to protect, defend, and indemnify homeowner
and CITY from any claims for unpaid work, labor, or materials with respect to
CONTRACTOR'S performance. Final payment will not be paid until the
CONTRACTOR has delivered to CITY complete release of all liens for work completed
arising out of CONTRACTOR'S performance or a receipt in full, covering all labor and
materials for which a lien could be filed or a bond satisfactory to the homeowner and
CITY indemnifying him against any lien.
3.18 REPORTING REQUIREMENTS. CONTRACTOR agrees to submit a W9 Form,
attached hereto and incorporated herein as Exhibit "B" to fulfill reporting requirements
with the Internal Revenue Service.
ARTICLE 4
SUSPENSION AND TERMINATION
4.1 If CONTRACTOR fails to fulfill in a timely and proper manner its obligations under this
Agreement, or violates any of the terms or conditions of this Agreement, then the
CONTRACTOR will have ten (10) days from the date it receives written notice from
CITY directing it to cure or correct the defects. If CONTRACTOR fails to cure or
correct the defects, CITY will have the right to terminate this Agreement and to select a
substitute CONTRACTOR. If the expense of finishing the work exceeds the amount of
this Agreement, CONTRACTOR will pay the difference to CITY. Should
CONTRACTOR fail to make corrections as directed by CITY, and such breach of
contract results in a violation of federal law or regulation for which CITY receives a
demand of reimbursement of grant funds from HUD or its successor, CITY may
terminate this Agreement immediately, and may recover from CONTRACTOR the
5
amount sought by HUD for reimbursement, up to the full amount of funds
CONTRACTOR received from CITY.
4.2 CONTRACTOR will not be relieved of the liability to CITY for damages sustained by
the CITY by virtue of any breach of this Agreement by CONTRACTOR. CITY may
withhold payment to CONTRACTOR until the amount of monetary damages due CITY
from CONTRACTOR is determined.
4.3 If CITY becomes aware of any CONTRACTOR activity which could jeopardize CITY's
position with HUD and cause CITY to return CDBG funds or other federal funds
received by CITY, CITY may take appropriate action, including injunctive relief against
CONTRACTOR, to terminate or prevent the activity. Failure of CITY to exercise this
right will not constitute a waiver by CITY of its right to demand payment or to seek any
other relief in law or in equity to which it may be entitled.
ARTICLE 5
PAYMENTS
5.1 For work completed by CONTRACTOR, as described in the Work -Write Up Bid
Document, CITY agrees to pay CONTRACTOR the Contract Amount after all of such
work is found to be satisfactorily completed and is inspected by the Construction Advisor
and CITY Inspector, in accordance with the CITY'S Prompt Payment Policy.
ARTICLE 6
ATTORNEY'S FEES
6.1 Any party to this Agreement who prevails in any legal proceedings between the parties
regarding this Agreement will be entitled to recover court costs and reasonable attorney's
fees from the non -prevailing party.
ARTICLE 7
VENUE AND REMEDIES
7.1 This Agreement is governed by the laws of the State of Texas. Exclusive venue for any
dispute arising under this Agreement is in Williamson County, Texas.
ARTICLE 8
SUCCESSORS AND ASSIGNS
8.1 CITY and CONTRACTOR, respectively, bind themselves, their successors, assigns and
legal representatives to the other party to this Agreement and to the successors, assigns
and legal representatives of the other party with respect to all covenants of this
Agreement. Except for CONTRACTOR'S assignment of mechanic's lien contracts and
mechanic's lien notes to the CITY pursuant to Paragraph 1.7, neither CITY nor
CONTRACTOR will assign, sublet, or transfer any interest in this Agreement without the
6
written consent of the other.
ARTICLE 9
ENUMERATION OF CONTRACT DOCUMENTS
9.1 This Agreement represents the entire and integrated agreement between CITY and
CONTRACTOR for the work specified in Exhibit "A" and supersedes all prior
negotiations, representations or arguments either written or oral. This Agreement may be
amended only by written instrument signed by CITY and CONTRACTOR. The
Agreement contains the following exhibits attached to and incorporated in this
Agreement for all purposes:
(1) Work -Write Up Bid Document (Exhibit "A");
(2) W9 Form (Exhibit "B").
ARTICLE 10
ACKNOWLEDGMENT
10.1 The above warranties are in addition to, and not in limitation of, any and all other rights
and remedies to which CITY and the homeowner, or subsequent owners, may be entitled,
at law or in equity, and will survive the conveyance of title, delivery of possession of the
Property, or other final settlement made by the homeowner and will be binding on the
undersigned notwithstanding any provision to the contrary contained in any instrument
heretofore, and thereafter executed by the homeowner.
This Agreement is effective as of the date first written above.
CONTRACTOR: CITY:
ALL TEX BUILDING & RESTORATION, INC. CITY OF ROUND ROCK
Name
Title
7
Alan McGraw,
Mayor
`ly
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Contractor Name
Contractor Signature
Bid Due Date: 9/16/2008
PROJECT TYPE: Rehabilitation
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Fornt W-9
(Rev.November 2tH15)
Deportment of the Treasury
Internal Ravenna service
Request for Taxpayer
Identification Number and Certification
Give form to the
requester. Do not
send to the IRS.
Print or type
See Specific Instructions an page 2.
Naupe tax return)
me Ru Qe54 - 011 D
C
Business name. if dlfereo2 from above
5e
Check appmpciate
Other ►
Exempt.from backup
• IndMduaVCorporation Partnership
1
box: Sole proprietorwithholding
` 1dress (n ber. street. and apL or suite rn)
) � '1 tit-) creeS1-- 1)e
Requester's name and address (optional)
City, state. and ZIP code
kit) 'vllkS `R( .7-)-4
List amount number(s) here (optional)
Part i Taxpayer Identification Number (TIN)
Enter your TIN In the appropriate box The TIN provided must match the name given on Line 1 to avoid
backup withholding. For individuals, this is your social security number (SSN). However, for a resident
ellen, sole proprietor, or disregarded entity. see the Part I instructions on page 3. For other entities, it is
your employer identification number (ElN). if you do not have a number, see How to get a 77N on page 3.
Note. If the account Is in more than one name, see the chart on page 4 for guidelines on whose
number to enter.
Part II
Certification
Social security number
1 1 •1 1 -l. 1 1 1
or
spb+Citi l3nIOl/Io
Under penalties of perjury. 1 certify that
1. The number shown an this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and
2..
I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) t have not been notified by the internal
Revenue Service (IRS) that 1 am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup withholding, and
3. I am a U.S. person (including a U.S. resident alien).
Certification instructions. You must cross out item 2 above if you have been notified by the iRS that you are currently subject to backup
withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply.
For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement
arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the Certification, but you must
provide your correct 11N. (See the instructions on page 4.)
Sign
Here
Signature or • ✓ 3r'{_e_____
U.S. person ►
Purpose of Form
A person who is required to file an information retum with the
IRS, must obtain your correct taxpayer identification number
(TIN) to report, for example, income paid to you, real estate
transactions, mortgage interest you paid, acquisition or
abandonment of secured property, cancellation of debt, or
contributions you made to an IRA.'
U.S. person. Use Form W-9 only if you are a U.S. person
(including a resident alien), to provide your correct TIN to the
person requesting it (the requester) and, when applicable, to:
1. Certify that the TIN you are giving is correct (or you are
waiting for a number to be issued),
2. Certify that you are not subject to backup withholding, or
3. Claim exemption from backup withholding if you are a
U.S. exempt payee.
In 3 above. if applicable, you are also certifying that as a
U.S. person, your allocable share of any partnership income
from a U.S. trade or business is not subject to the
withholding tax on foreign partners' share of effectively
connected income.
Note. If a requester gives you a form other than Form W-9 to
request your TIN. you must use the requester's form if it is
substantially similar to this Form W-9.
For federal tax purposes, you are considered a person if you
are:
EXHIBIT
rrBn
• An individual who is a citizen or resident of the United
States,
• A partnership, corporation, company, or association
created or organized in the United States or under the laws
of the United States, or
• Any estate (other than a foreign estate) or trust See
Regulations sections 301.7701-6(a) and 7(a) for additional
information.
Special rules for partnerships. Partnerships that conduct a
trade or business in the United States are generally required
to pay a withholding tax on any foreign partners' share of
income from such business. Further, in certain cases where a
Form W-9 has not been received, a partnership is required to
presume that a partner is a foreign person, and pay the
withholding tax. Therefore, if you are a U.S. person that is a
partner in a partnership conducting a trade or business in the
• United States, provide Form W-9 to the partnership to
establish your U.S. status and avoid withholding on your
share of partnership income.
The person who gives Form W-9 to the partnership for
purposes of establishing its U.S. status and avoiding
withholding on its allocable share of net income from the
partnership conducting a trade or business In the United
States is in the following cases:
• The U.S. owner of a disregarded entity and not the entity,
Cat. No. 10231)1 Form W-9 (Rev. 11-2005)
REAL ESTATE LIEN NOTE
(Community Housing Repair and Rehabilitation Program)
Date: , 2008
Maker (whether one or more): Barry and Joanne Farley, a married couple
Maker's Mailing Address (including county):
1511 Lantern Light Drive
Round Rock, Texas 78681
Williamson County
Payee: CITY OF ROUND ROCK, TEXAS
1. Place for Payment (including county):
CITY OF ROUND ROCK
Attn: Home Repair and Rehabilitation Program Manager
221 East Main Street
Round Rock, Texas 78664
Williamson County
or any other place that Payee may designate in writing.
2. Principal Amount:
TWENTY FIVE THOUSAND, ONE HUNDRED EIGHTEEN DOLLARS AND 75/100
($25,118.75). In the event that actual costs associated with the repair and rehabilitation of the
Property are less than the aforesaid Principal Amount, Maker shall be credited the difference
between the Principal Amount and the actual costs.
3. Annual Interest Rate on Unpaid Principal from Date: The highest interest rate allowed
by law will be charged on this Note if a Default has been declared by the Note Holder as
stated in Paragraph 12 of this Note.
4. Maker's Promise to Pay
a. Purpose This Note implements requirements applicable to assistance furnished by Payee
to Maker under a program to help eligible families with home repairs and rehabilitation
being carried out by Payee, which, for certain loans may use grant funds furnished by
HUD through the CDBG program. The Payee has assisted the Maker with respect to
rehabilitation of the Property, for use as the Maker's principal residence.
149526.doc/jmr
b. Promise to Pay Maker promises to Pay to the order of Payee at the place for payment and
according to the terms of payment the principal amount plus interest, if any, plus other
charges at the rates stated above.
5. Terms of Payment:
a. Subsidy Repayment Obligation Principal In return for assistance Maker has received
with respect to rehabilitation of the Property, Maker promises to pay the Principal
Amount as stated in Paragraph 2 to the order of Payee. Payment of Principal under this
Note will be initially deferred. Such deferral shall end and the total Principal Amount
shall be due and payable on the date of an event of Default as stated in Paragraph 9.
b. Deferral and Payment of Principal The outstanding principal balance of this Note shall
remain the same as the amount stated in Paragraph 2 until five (5) years from the date of
this Note. If there is a Deferral Termination Event, as defined in paragraph (c) below,
within the five (5) years from the date of this Note, Maker shall repay the principal loan
amount to Payee. If there is no Deferral Termination Event within five (5) years from the
date of this Note, the loan shall be forgiven.
c. Deferral Termination Event Any of the following constitute a Deferral Termination
Event:
i. Rental during term of Note. If the Maker rents or leases (including an oral lease)
the Property to any person or entity during the term of this Note, the deferral period
stated above is terminated.
ii. Failure to Occupy Property as Principal Residence during the term of the Note.
If all Makers are continuously absent from the Property for a period of more than
thirty (30) days, or move substantially all their personal possessions out of the
Property, without the written consent of the Note Holder, the Makers shall be deemed
not to be occupying the Property as their Principal Residence and the deferral period
stated above is terminated.
iii. Any Transfer of the Property. Any transfer of the Property or any interest therein
(including a beneficial interest) within five (5) years of the signing of this Note
terminates the deferral period under this Note. Maker authorizes the Note Holder to
determine, in its sole discretion, whether a transfer of a portion of the Property, or a
partial interest therein, or any other reason has an effect on the value of the Note
Holder's interest substantial enough to be considered a transfer for purposes of this
Paragraph 9. Maker will mail, certified mail, return receipt requested, or deliver
notice of any proposed transfer and a copy of the sales contract to the Note Holder at
least fourteen (14) calendar days before the proposed Closing Date, at the Place for
Payment as stated in Paragraph 1 or any other place that Payee may designate in
writing. Exceptions to this provision are limited to (a) a subordinate lien or
encumbrance that does not transfer rights of occupancy of the Property; (b) creation
of a purchase -money security interest for household appliances; (c) transfer by devise,
descent, or operation of law on the death of a co -Grantor; (d) transfer to a spouse or
2
children of Grantor or between co -Grantors; (e) transfer to a relative of Grantor on
Grantor's death; and (f) transfer to an inter vivos trust in which Grantor is and
remains a beneficiary and occupant of the Property.
6. Security for Payment and Obligations:
a. In addition to the protections given to the Note Holder under this Note, this Note is
secured by a subordinated deed of trust, of even date, from Maker to Stephan L. Sheets,
Trustee, that conveys the Property as described below in trust (collectively, the
"Subordinate Security Instrument").
b. The lien securing this Note shall remain subordinate to the indebtedness evidenced by
one or more Notes payable to the Financial Institutions as defined below, which Notes
are secured by the Senior Liens as defined below, and as renewed, extended, re -
amortized, or otherwise adjusted from time to time; provided, however, that the renewal,
extension, or other credit extension does not constitute an increase in the unpaid principal
balance of the Financial Institutions' indebtedness.
c. The Subordinate Security Instrument describes the conditions under which Maker may be
required to make immediate payment in full of all amounts Maker owes under this Note.
One of those conditions set forth therein is that if all or any part of the Property or any
interest in it (including a beneficial interest) is sold or transferred without compliance
with the terms of this Note and the Subordinate Security Instrument, the Note Holder will
require immediate payment in full of all sums secured by the Subordinate Security
Instrument. In the event of such a sale, or in the event of any other Default under this
Note or the Subordinate Security Instrument, the Note Holder may give the Maker Notice
of Default and acceleration under Paragraph 9 of this Note.
7. Additional Definitions:
a. "Bona Fide Net Resale Proceeds" means the amount calculated by the Note Holder by
subtracting from the contract sales price between the Maker and the proposed buyer for
the Property the amounts due on the Closing Date on any "Senior Liens" and on
"Maker's Other Liens", and also subtracting the amount of any reasonable and
customary sales expenses paid by the Maker in connection with the sale, each as
determined by the Note Holder. If any part of the contract sales price for the Property is
paid in the form of a promissory Note, or any thing of value other than lawful money of
the United States, the Note Holder is hereby authorized to assign a fair market value
thereto. Maker agrees to accept such thing of value at such assigned fair market value as
part of maker's equity, or to allow it to be retained by the Note Holder as Alternate
Principal, as the Note Holder in its sole discretion may determine.
b. "Closing Date" means the date of closing of Maker's sale of the Property to a buyer, or
if there is no formal closing, the date on which the conveyance (deed) is recorded.
3
c. "Home Repair and Rehabilitation Payment Activity" means any loan made by Payee
using either CDBG funds or other funds to assist a Homeowner with payment funds for
minor repairs on a home.
d. "Financial Institution(s)" means Mortgage Electronic Registration Systems, Inc., as
Nominee for RBD Mortgage Company.
e. "CDBG" means Community Development Block Grant program.
f. "HUD " means the United States Department of Housing and Urban Development.
g.
"Maker's Other Liens" means unpaid liens or other charges that Maker authorized, or
allowed to exist against the Property since the date of this Note. Such liens may include,
for example, liens for money borrowed to finance additional improvements, home equity
lines of credit, and other voluntary liens, liens for unpaid taxes, special assessments,
water, sewer, and other utility charges, mechanics' liens, and other liens and charges
arising by operation of law; and judgment or other creditor's liens, any of which may
affect the amount of the sales proceeds, Maker hereby authorizes Note Holder to
determine, in Note Holder's sole discretion, the amount by which these liens or charges
reduce the Bond Fide Net Resale Proceeds for the Property, and to reduce the amount
payable to Maker as maker's equity by an equal amount.
h. "Note Holder" means the lender of any authorized party who takes this Note by
assignment and is entitled to receive amounts due under this Note.
i. "Property" means the certain real property described on Exhibit "A" attached to this
Note and by this reference incorporated in it.
"Senior Lien Note(s)" means the Note(s) in the original principal amount of
$105,661.00, filed the 26th day of January, 2005, executed by Maker, payable to the
order of Financial Institutions, and fully described in the Senior Liens.
k. "Senior Lien(s)" means a deed of trust(s) recorded in the real property records of
Williamson County, Texas as Document No. 2005006368 and Document No.
2005006369 securing the Senior Lien Note(s).
1. "Subordinate Security Instrument" means the instruments identified in Paragraph 6.a.
8. Maker's Right to Prepay
Maker may make a full prepayment or partial prepayments without paying any prepayment
or interest charge. In the event of prepayment, the Note Holder will use all of Maker's
prepayments to reduce the amount of Principal that Maker owes under this Note.
4
9. Default
a. Events of Default Any of the following events shall constitute a Default under this Note,
as of the date of the Notice of Default under Paragraph 10:
i. The Property or Maker is not Eligible under CDBG. The Maker is in default
under this Note, if:
(1) at the time the Note was signed by Maker, the Property:
(a) did not become the principal residence of the Maker; or
(b) was in an area identified by the Federal Emergency Management Agency as
having a special flood hazard, or, if the Property is in a flood hazard area,
flood insurance had not been obtained by Maker;
(2) at the time Maker purchased the Property, the Maker's household was not a low-
income family as stated at 24 CFR §92.217 at the later of (a) Maker's occupancy
of the Property, or (b) at the time the Principal is advanced; or
(3)
at the time Maker purchased the Property, any employee, agent, consultant,
officer, or elected or appointed official who exercises or has exercised any
functions or responsibilities with respect to activities assisted with CDGB funds
or who are in a position to participate in a decision making process or gain inside
information with regard to these activities, has obtained a financial interest or
benefit from a Home Repair and Rehabilitation Payment Activity, or has an
interest in any contract, subcontract, or agreement with respect thereto, or the
proceeds thereunder, either for themselves or those with whom they have family
or business ties, during their tenure or for one year thereafter as stated at the
conflict of interest provisions of 24 C.F.R. §92.356.
ii. Any Default under the Note or the Subordinate Security Instrument:
(1) If there is an uncured default in payment of any part of principal or interest of the
Financial Institutions' $105,661.00 Note or in observance of any obligations or
covenants of any instruments securing them, the debt evidenced by this Note shall
immediately become payable at the option of Payee at the end of the cure period.
(2) If Maker defaults in the payment of this Note or in the performance of any
obligation in any instrument securing or collateral to it, and the default continues
after Payee gives Maker notice of the default and the time within which it must be
cured by Maker, as may be required by law or by written agreement, then Payee
may declare the unpaid principal balance and earned interest on this Note
immediately due.
(3) If Maker fails to perform any of Maker's obligations in this Note or in the
instruments securing it, Payee may perform those obligations and be reimbursed
5
by Maker, on demand, at the place where this Note is payable for any amounts so
paid, including attorney's fees, plus interest on those amounts from the date of
payment at the annual interest rate on the matured, unpaid amount. The amount to
be reimbursed shall be secured by all instruments securing this Note.
iii. Any Refinancing of the Senior Lien Notes. If either the Senior Lien Notes are
refinanced or the Maker's equity interest in the property pursuant to Art. 16 § 50(a)(6)
of the Texas Constitution is financed and the refinancing or financing is without
Payee's prior written approval, the outstanding principal balance and accrued interest
if any, of this Note shall be due and payable as described in Paragraph 5.
iv. Maker's Fraud or Misrepresentation. Any willful misstatement of, or failure to
disclose, a material fact by Maker relating to his or her eligibility for assistance with
respect to the Property under the Home Repair and Rehabilitation program under the
CDBG program is a Default under this Paragraph. Recovery against the Maker
responsible for the fraud or misrepresentation is not limited to the proceeds of sale of
the Property, but may include personal judgment and execution thereon to the full
extent authorized by law. Maker represents that all statements contained in the
Application for this loan with the City of Round Rock are true and correct.
b. Notice of Default and Amount Due If Maker is in Default, the Note Holder may send
Maker a written notice stating the reason Maker is in Default and telling Maker to pay
immediately: (i) the full amount of Principal then due on this Note, (ii) all of the interest
that Maker owes, and that will accrue until paid, on that amount, and (iii) all of the Note
Holder's costs and expenses reimbursable under Paragraph 9.c.
c. Payment of Note Holder's Costs and Expenses If the Note Holder has notified Maker to
pay immediately in full under Paragraph 10 and this Note or any instrument securing or
collateral to it is given to an attorney for collection or enforcement, or if suit is brought
for collection or enforcement, or if it is collected or enforced through probate,
bankruptcy, or other judicial proceeding, then Note Holder has the right to be repaid from
the proceeds of foreclosure for all of its costs and expenses in enforcing this Note to the
extent not prohibited by applicable law. Those expenses include, for example, all costs of
collection and enforcement, including reasonable attorney's fees and court costs, in
addition to other amounts due. Reasonable attorney's fees shall be 10% of all amounts
due unless either party pleads otherwise.
d. No Waiver By Note Holder Even if, at a time when Maker is in Default, the Note Holder
does not require Maker to pay immediately in full under Paragraph 10, the Note Holder
will still have the right to do so if Maker is in Default for the same reason, or for another
reason, at a later time.
10. Giving of Notices
Unless applicable law requires a different method, any notice that must be given to Maker
under this Note will be given by delivering it or by mailing it by first class mail to Maker at
6
the Property Address above, or at a different address if Maker gives the Note Holder a notice
of Maker's different address.
Any notice that must be given to the Note Holder under this Note will be given by mailing it
by first class mail to the Note Holder at the Place for Payment stated in Paragraph 1, or at a
different address, if Maker is given a notice of that different address.
11. Obligations of Persons under this Note
If more than one person signs this Note, each person is fully obligated to keep all of the
promises made in this Note, including the promise to pay the full amount owed from the
proceeds of sale of the Property. Any person who is a guarantor, surety or endorser of the
Note is also obligated to the same extent. Any person who takes over these obligations,
including the obligations of a guarantor, surety or endorser of this Note, is also obligated to
keep all of the promises made in this Note. The Note Holder may enforce its rights under this
Note against each person individually or against all of the persons signing the Note together.
12. Maximum Interest on the Debt
Interest on the debt evidenced by this Note shall not exceed the maximum amount of
nonusurious interest that may be contracted for, taken, reserved, charged, or received under
law; any interest in excess of that maximum amount shall be credited on the principal of the
debt or, if that has been paid, refunded. On any acceleration or required or permitted
prepayment, any such excess shall be canceled automatically as of the acceleration or
prepayment or, if already paid, credited on the principal of the debt or, if the principal of the
debt has been paid, refunded. This provision overrides other provisions in this and all other
instruments concerning the debt.
13. Waivers
Maker and any person who has obligations under this Note waive all demands for payment,
presentations for payment, notices of intention to accelerate maturity, notices of acceleration
of maturity, protests, notices of protest, the rights of presentment, and notice of dishonor to
the extent not prohibited by applicable law "Presentment" means Maker's right to require the
Note Holder formally to demand payment of amounts due. "Notice of dishonor" means the
right to require the Note Holder to give notice to other persons that amounts due have not
been paid.
14. Release and Satisfaction
This Note shall be deemed satisfied and Maker shall be entitled to a release of the
Subordinate Security Instrument upon payment of a reasonable fee, as determined by the
Note Holder, for preparation and recordation of the release upon forgiveness of the loan, or
repayment of the principal loan amount under Paragraph 5, upon full prepayment under
Paragraph 8, upon payment of all amounts due upon Default under Paragraph 9, or upon
recordation of a deed -in -lieu of foreclosure.
15. Governing Law
To the extent not inconsistent therewith, this Note and the Subordinate Security Instrument
shall be governed by the law of the State and local jurisdiction in which the Property is
located.
Each Maker is responsible for all obligations represented by this Note.
When the context requires singular nouns and pronouns include the plural.
EXECUTED AND DELIVERED as of the day and year first above written.
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on this the cR6 day of Nd -Vere
2008 by Joanne Farley.
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF WILLIAMSON
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This instrument was acknowledged before me on this the a 6 day of 4/0 V h 3 y aee``‘��\\
2008 by Barry Farley.
PLEASE RETURN TO:
Notary Public, State of Texas
Sheets & Crossfield, P.C.
309 E. Main St.
Round Rock, Texas 78664
8
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EXHIBIT "A"
(Legal Description of Property)
The Property (including any improvements) referred to in this agreement is described as
follows:
LOT 36, BLOCK K, SAM BASS TRAILS, SECTION ONE, a subdivision in
Williamson County, Texas, according to the map or plat thereof recorded in
Cabinet I, Slide 260, Plat Records, Williamson County, Texas.
9
DEED OF TRUST
(Community Housing Repair and Rehabilitation Program)
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,
YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION
FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC
RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE
NUMBER.
Date: , 2008
Grantor (whether one or more):
Barry and Joanne Farley, a married couple.
Grantor's Mailing Address (including county):
1511 Lantern Light Drive
Round Rock, Texas 78681
Williamson County
Trustee: Stephan L. Sheets
Trustee's Mailing Address (including county):
Stephan L. Sheets
309 East Main Street
Round Rock, Texas 78664
Williamson County
Beneficiary: City of Round Rock, Texas, a Texas home -rule municipality
Beneficiary's Mailing Address (including county):
City of Round Rock
Attn: Home Repair and Rehabilitation Program Manager
221 East Main
Round Rock, Texas 78664
Williamson County
Note(s)
Date: , 2008
Amount: $25,118.75
149526.doc/jmr
1
1
a
1
EXHIBIT
Maker (whether one or more):
Barry and Joanne Farley, a married couple
Payee: CITY OF ROUND ROCK, TEXAS, a Texas home -rule municipality
Final Maturity Date: As provided in the Note.
Terms of Payment (optional): As provided in the Note.
Property (including any improvements):
The certain real property more particularly described on Exhibit "A" attached to this
Deed of Trust and by this reference incorporated in it, all fixtures and improvements
situated thereon and all rights, titles and interests appurtenant thereto.
Prior Lien(s) (including recording information):
The liens securing another note in the original principal amount of $105,661.00, filed the
26th day of January, 2005 executed by Grantor, payable to the order of Mortgage
Electronic Registration Systems, Inc., as Nominee for RBD Mortgage Company
("Financial Institution"), including without limitation the liens evidenced by that certain
deed of trust and security agreement, of even date, executed by Grantor in favor of
Financial Institution and recorded in the real property records of Williamson County,
Texas.
Other Exceptions to Conveyance and Warranty:
1. Note dated of even date herewith, between Grantor and Beneficiary (the "Note"). All
obligations and covenants in the Note shall terminate on the date Beneficiary, in its
sole discretion, issues a release of all present and future rights to establish or enforce
the Deed of Trust lien that secures the Note. The release shall be in such form as to
enable it to be recorded in the real property records of Williamson County, Texas;
and
2. Easements, rights-of-way, and prescriptive rights, whether of record or not; all
presently recorded instruments that affect the Property; taxes for 2007, the payment
of which Grantor assumes; and subsequent assessments for that and prior years due to
change in land usage, ownership, or both, the payment of which Grantor assumes.
For value received and to secure payment of the Note, Grantor conveys the Property to Trustee
in trust. Grantor warrants and agrees to defend the title to the Property. If Grantor performs all
the obligations and covenants in the Note and pays the Note according to its terms, this Deed of
Trust shall have no further effect, and Beneficiary shall release it at Grantor's expense.
2
Grantor's Obligations
Grantor agrees to:
1. keep the Property in good repair and condition;
2. pay all taxes and assessments on the Property when due;
3. preserve the lien's priority as it is established in this Deed of Trust;
4. maintain, if applicable in a form acceptable to Beneficiary, an insurance policy that:
a. provides flood insurance at any time the Property is in a flood hazard area; and
b. contains such other coverage as Beneficiary may reasonably require;
5. deliver the insurance policy to Beneficiary and deliver renewals to Beneficiary at
least ten days before expiration;
6. keep any buildings occupied as required by the insurance policy;
7. if this is not a first lien, pay all prior lien notes that Grantor is personally able to pay
and abide by all prior lien instruments;
8. if all or any part of the Property or an interest in it (including a beneficial interest) is
sold or transferred without compliance with the terms of the Note and this Deed of
Trust, immediately pay in full to Beneficiary all sums secured by this Deed of Trust;
and
9. comply at all times with the terms, representations, and conditions of the Note.
Beneficiary's Rights
1. Beneficiary may appoint in writing a substitute or successor trustee, succeeding to all
rights and responsibilities of Trustee.
2. If the proceeds of the Note are used to pay any debt secured by prior liens,
Beneficiary is subrogated to all of the rights and liens of the holders of any debt so
paid.
3. If applicable, Beneficiary may apply any proceeds received under the insurance
policy either to reduce the Note or to repair or replace damaged or destroyed
improvements covered by the policy.
4. If Grantor fails to perform any of Grantor's obligations, Beneficiary may perform
those obligations and be reimbursed by Grantor on demand at the place where the
Note is payable for any sums so paid, including attorney's fees, plus interest on those
3
sums from the dates of payment at the rate stated in the Note for matured, unpaid
amounts. The sum to be reimbursed shall be secured by this Deed of Trust.
5. If Grantor defaults on the Note, or if Grantor fails to perform any of Grantor's
obligations, or if all or any part of the Property or an interest in it (including a
beneficial interest) is sold or transferred without compliance with the terms of the
Note and this Deed of Trust, or if default occurs on a prior lien note or other
instrument, and the default continues after Beneficiary gives Grantor notice of the
default and the time within which it must be cured, as may be required by law or by
written agreement, then Beneficiary may:
a. declare the unpaid principal balance and carried interest on the Note immediately
due;
b. request Trustee to foreclose this lien, in which case Beneficiary or Beneficiary's
agent shall give notice of the foreclosure sale as provided by the Texas Property
Code as then amended; and
c. purchase the Property at any foreclosure sale by offering the highest bid and then
have the bid credited on the Note.
6. If the Grantor defaults on the Note or fails to perform any of Grantor's obligations
under this Deed of Trust, the Beneficiary shall provide the Financial Institution, a
prior lienholder, with copies of all correspondence transmitted to Grantor regarding
the default or notice of acceleration.
Trustee's Duties
If requested by Beneficiary to foreclose this lien, Trustee shall:
1. either personally or by agent give notice of the foreclosure sale as required by the
Texas Property Code as then amended;
2. sell and convey all or part of the Property to the highest bidder for cash with a general
warranty binding Grantor, subject to prior liens and to other exceptions to conveyance
and warranty;
3. from the proceeds of the sale, pay, in this order:
a. expenses of foreclosure, including a commission to Trustee of five (5) percent of
the bid;
b. to Beneficiary, the full amount of principal, interest, attorney's fees, and other
charges due and unpaid;
c. any amounts required by law to be paid before payment to Grantor; and
4
d. to Grantor, any balance; and
4. if the prior lien has not been released, give written notice to Financial Institution that
Grantor is in default under this Deed of Trust and a copy of the notice of foreclosure
sale given Grantor.
General Provisions
1. If any of the Property is sold under this Deed of Trust, Grantor shall immediately
surrender possession to the purchaser. If Grantor fails to do so, Grantor shall become
a tenant at sufferance of the purchaser, subject to an action for forcible detainer.
2. If Grantor transfers any part of the Property without Trustee's prior written consent,
Trustee may declare the Note secured by this Deed of Trust immediately payable and
invoke any remedies provided in this Deed of Trust for default. If the Property is
residential real property containing fewer than five dwelling units or a residential
manufactured home occupied by Grantor, exceptions to this provision are limited to
(a) a subordinate lien or encumbrance that does not transfer rights of occupancy of the
Property; (b) creation of a purchase -money security interest for household appliances;
(c) transfer by devise, descent, or operation of law on the death of a co -Grantor; (d)
transfer to a spouse or children of Grantor or between co -Grantors; (e) transfer to a
relative of Grantor on Grantor's death; and (f) transfer to an inter vivos trust in which
Grantor is an remains a beneficiary and occupant of the Property.
3. Recitals in any Trustee's deed conveying the Property will be presumed to be true.
4. Proceeding under this Deed of Trust, filing suit for foreclosure, or pursuing any other
remedy will not constitute an election of remedies.
5. This lien shall remain superior to liens later created even if the time of payment of all
or part of the Note is extended or part of the Property is released.
6. If any portion of the Note cannot be lawfully secured by this Deed of Trust, payments
shall be applied first to discharge that portion.
7. Grantor assigns to Beneficiary all sums payable to or received by Grantor from
condemnation of all or part of the Property, from private sale in lieu of condemnation,
and from damages caused by public works or construction on or near the Property.
After deducting any expenses incurred, including attorney's fees, Beneficiary may
release any remaining sums to Grantor or apply such sums to reduce the Note.
Beneficiary shall not be liable for failure to collect or to exercise diligence in
collecting any such sums.
8. Following the maturity of the above described Financial Institution loan, Grantor
assigns to Beneficiary absolutely, not only as collateral, all present and future rent
and other income and receipts from the Property. Prior to such maturity Borrower's
rights shall not arise under this paragraph 8. Leases are not assigned. Grantor
5
warrants the validity and enforceability of the assignment. Grantor may as
Beneficiary's licensee collect rent and other income and receipts as long as Grantor is
not in default under the Note or this Deed of Trust. Grantor will apply all rent and
other income and receipts to payment of the Note and performance of this Deed of
Trust, but if the rent and other income and receipts exceed the amount due under the
Note and Deed of Trust, Grantor may retain the excess. If Grantor defaults in
payment of the Note or performance of this Deed of Trust, Beneficiary may terminate
Grantor's license to collect and then as Grantor's agent may rent the Property if it is
vacant and collect all rent and other income and receipts. Beneficiary neither has nor
assumes any obligations as lessor or landlord with respect to any occupant of the
Property. Beneficiary may exercise Beneficiary's rights and remedies under this
paragraph 8 without taking possession of the Property. Beneficiary shall apply all rent
and other income and receipts collected under this paragraph 8 first to expenses
incurred in exercising Beneficiary's rights and remedies and then to Grantor's
obligations under the Note and this Deed of Trust in the order determined by
Beneficiary. Beneficiary is not required to act under this paragraph 8, and acting
under this paragraph 8 does not waive any of Beneficiary's other rights or remedies. If
Grantor becomes a voluntary or involuntary bankrupt, Beneficiary's filing a proof of
claim in bankruptcy will be tantamount to the appointment of a receiver under Texas
law.
9. Interest on the debt secured by this Deed of Trust shall not exceed the maximum
amount of nonusurious interest that may be contracted for, taken, reserved, charged,
or received under law; any interest in excess of that maximum amount shall be
credited on the principal of the debt or, if that has been paid, refunded. On any
acceleration or required or permitted prepayment, any such excess shall be canceled
automatically as of the acceleration or prepayment or, if already paid, credited on the
principal of the debt or, if the principal of the debt has been paid, refunded. This
provision overrides other provisions in this and all other instruments concerning the
debt.
10. Grantor represents that this Deed of Trust and the Note are given as security for
money provided for home repairs on the Property.
11. Except where otherwise required or permitted by the Beneficiary in connection with a
transfer on death, divorce, legal separation, or legal incapacity of a Grantor as
provided in the Note, the Note and this Deed of Trust may not be assumed.
12. If Grantor fails to pay any part of principal or interest secured by a prior lien or liens
on the Property when it becomes payable or defaults on any prior lien instrument, the
debt secured by this Deed of Trust shall immediately become payable at the option of
Beneficiary.
13. Beneficiary and Grantor acknowledge and agree that this Deed of Trust is subject and
subordinate in all respects to the liens, terms, covenants and conditions of the prior
lien and to all advances heretofore made or which may hereafter be made pursuant to
the prior lien, including all sums advanced for the purpose of (a) protecting or further
6
securing the lien of the prior lien or (b) constructing, renovating, repairing,
furnishing, fixturing or equipping the Property. The terms and provisions of the prior
lien are paramount and controlling, and they supersede any other terms and
provisions of this Deed of Trust in conflict therewith. In the event of a foreclosure or
deed in lieu of foreclosure of the prior lien, any provisions herein or any provision in
any collateral agreement restricting the use of the Property to low or moderate income
households or otherwise restricting the Grantor's ability to sell the Property shall have
no further force or effect on subsequent owners or purchasers of the Property. Any
person, including his successors or assigns (other than the Grantor or a person or
entity related to the Grantor), receiving title to the Property through foreclosure or
deed in lieu of foreclosure of the prior lien shall receive title to the Property free and
clear from such restrictions. Further, if the Financial Institution acquires title to the
Property pursuant to a deed in lieu of foreclosure, the lien of this Deed of Trust shall
automatically terminate upon the Financial Institution's acquisition of title, provided
that (i) the Beneficiary has been given written notice of a default under the prior lien
and (ii) the Beneficiary (or another party acting on its behalf) shall not have cured the
default under the prior lien, or diligently pursued curing the default as determined by
the Financial Institution, within the sixty-day period provided in such notice sent to
the Beneficiary.
14. To the extent not inconsistent therewith, this Deed of Trust and the Note shall be
governed by the laws of Texas and the local jurisdiction in which the Property is
located.
15. When the context requires, singular nouns and pronouns include the plural.
16. The term "Note" includes all sums secured by this Deed of Trust.
17. This Deed of Trust shall bind, inure to the benefit of, and be exercised by successors
in interest of all parties.
18. If Grantor and Maker are not the same person, the term "Grantor" shall include
Maker.
EXECUTED AND DELIVERED as of the date first above written.
(Signatures on the following page.)
7
GRANTOR:
Joann} Farley
GRANTOR:
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on this the Zo day of VO ✓F%1acleie--.
2008 by Joanne Farley.
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on this the -2.6 day of /V0 Vtf140—Le. __
2008 by Barry Farley.
PLEASE RETURN TO:
Sheets & Crossfield, P.C.
309 E. Main St.
Round Rock, Texas 78664
8
Notary Public, State of Texas
EXHIBIT "A"
(Legal Description of Property)
The Property (including any improvements) referred to in this agreement is described as
follows:
LOT 36, BLOCK K, SAM BASS TRAILS, SECTION ONE, a subdivision in
Williamson County, Texas, according to the map or plat thereof recorded in
Cabinet I, Slide 260, Plat Records, Williamson County, Texas.
9
COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) -
COMMUNITY HOUSING REPAIR AND REHABILITATION PROGRAM
CONTRACTOR AGREEMENT
This CDBG Community Housin Repair and Rehabilitation Program Contractor
Agreement (Agreement), is made this a s day of tPy1LP.r, 2008, between the CITY OF
ROUND ROCK, Texas, 221 East Main Street, Round Rock, Texas ("CITY"), and ALL TEX
BUILDING & RESTORATION, INC., 12711 Woodcreek Drive, Willis, Texas 77318
("CONTRACTOR").
RECITALS
WHEREAS, CITY has been awarded grant funds which may be spent by CITY for the
provision of certain services authorized under the U.S. Department of Housing and Urban
Development (HUD) Community Development Block Grant (CDBG) Program; and
WHEREAS, CITY wishes to assist qualified homeowners in the minor rehabilitation of their
residence by providing a non-interest bearing loan to pay CONTRACTOR for labor, materials and
equipment to be utilized in the rehabilitation; and
WHEREAS, CITY will pay CONTRACTOR for labor, materials and equipment to be
utilized in the rehabilitation of LOT 36, BLOCK K, SAM BASS TRAILS, SECTION ONE, a
subdivision in Williamson County, Texas, according to the map or plat thereof recorded in
Cabinet I, Slide 260, Plat Records, Williamson County, Texas, also known as 1511 LANTERN
LIGHT DRIVE, Round Rock, Texas (the "Property"), as specified in the Work -Write Up Bid
Document, attached hereto and incorporated herein as Exhibit "A".
Now therefore, for and in consideration of the mutual promises and covenants set forth herein,
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, CITY and CONTRACTOR agree as follows:
ARTICLE 1
GENERAL REQUIREMENTS
1.1 CITY will pay CONTRACTOR $20,095.00 ("Contract Amount"). Funds will not be used
to pay the homeowner or members of its family.
1.2 Payment will be made by CITY for all work described in the Work -Write Up Bid
Document after all of such work is found to be satisfactorily completed and inspected by
the Construction Advisor, as defined in the City of Round Rock Minor Home Repair
Program Policies and Procedures, and the CITY Inspector. CITY will pay
CONTRACTOR for work in accordance with CITY'S Prompt Payment Policy, as defined
in the City of Round Rock 2008 Community Housing Repair and Rehabilitation Program
Policies and Procedures.
148752.doc/jmr
(t -'f•12- 10- -3443
1.3 CONTRACTOR will not deviate from the work described in the Work -Write Up Bid
Document without a change order from CITY. Any such change order will be included in
an amendment to this Agreement. The Contract Amount and any change orders shall not
exceed a total amount equal to a twenty-five (25) percent increase in the original Contract
Amount.
1.4 The Contract Amount and any approved change orders will not total more than the
amount of $25,118.75.
1.5 All work specified in the Work -Write Up Bid Document will be satisfactorily completed
within ninety (90) days from the date of the Notice to Proceed.
1.6 Work -Write Up Bid Document line item deletions: None
1.7 CONTRACTOR will assign to the CITY all mechanic's lien notes and mechanic's lien
contracts on the Property held by CONTRACTOR.
ARTICLE 2
CONTRACTOR'S RESPONSIBILITIES
2.1 CONTRACTOR will ensure that all work performed under this Agreement is permitted
and inspected by CITY's Building Inspection Division. CONTRACTOR agrees to be duly
licensed under CITY ordinances and State laws and be responsible for obtaining the
building permit.
2.2 CONTRACTOR understands that it is solely responsible for meeting the terms and
conditions of this Agreement. If CONTRACTOR fails to properly perform or complete
any of the work specified in the Work -Write Up Bid Document, CONTRACTOR will not
receive funding for any work that is found to be improperly performed or incomplete.
2.3 CONTRACTOR understands that all work described in the Work -Write Up Bid Document
with the exception of line items deleted under Section 1.6 must be completed before any
funds will be paid out.
2.4 CONTRACTOR understands that the job will be inspected by a CITY Inspector and
Construction Advisor before any funds will be paid out.
2.5 CITY will provide a Notice to Proceed to CONTRACTOR to commence work.
CONTRACTOR agrees to start work within thirty (30) calendar days after receipt of the
Notice to Proceed. If CONTRACTOR fails to commence work within thirty (30) days
from the date on the Notice to Proceed, CITY will have the right to terminate this
Agreement, by providing a written notice of termination to CONTRACTOR.
2.6 CONTRACTOR agrees to complete the work within ninety (90) days from the date of the
2
Notice to Proceed. If completion is delayed for reasons beyond the CONTRACTOR's
control, CONTRACTOR will provide timely notice to CITY of the reasons for such delay.
If such good cause is claimed by CONTRACTOR, it will be CONTRACTOR'S obligation
to substantiate its claim by adequate documentation.
2.7 CONTRACTOR affirms that it has not been debarred from performing federal contract
work.
ARTICLE 3
OTHER PROGRAM REQUIREMENTS
3.1 PERMITS AND CODES. CONTRACTOR agrees to secure and pay for all necessary
permits and licenses required for CONTRACTOR'S performance and to adhere to
applicable local codes and requirements whether or not covered by the Work -Write Up
Bid Document, including any CONTRACTOR registration requirements.
3.2 DISCRIMINATION. CONTRACTOR will not exclude any person from participation in,
deny the benefits of or subject the person to discrimination under any of the
CONTRACTOR's activities while receiving federal financial assistance on the grounds
of race, color, religion, sex, national origin, age or disability.
3.3 WARRANTY. CONTRACTOR agrees to provide a full one-year warranty to the
homeowner, said warranty will extend to subsequent owners of the property to be
improved. The warranty will provide that improvements, hardware, and fixtures of
whatever kind or nature installed or constructed on said property by the CONTRACTOR
are of good quality and free from defects in workmanship or materials or deficiencies
subject to the warranty provided in this paragraph. CONTRACTOR and CITY agree,
however, that the warranty set forth in this paragraph will apply only to such deficiencies
and defects as to which homeowner or subsequent owners will have given written notice
by certified mail to the CONTRACTOR, at its principal place of business, within one (1)
year from the date of the final inspection and acceptance by the CITY Inspector that all
work under the Agreement has been completed.
3.4 BID. CONTRACTOR acknowledges that it has prepared the CONTRACTOR'S Work -
Write Up Bid Document, attached hereto and incorporated herein as Exhibit "A" and that
such Bid is accurate and consistent as to the name of CONTRACTOR, scope of work that
the CONTRACTOR will under -take, and price. CONTRACTOR acknowledges the
performance requirement established in the write up and warrants that all work
undertaken will conform to said specifications.
3.5 REMOVAL OF DEBRIS. Upon completion of work CONTRACTOR agrees to remove
all construction debris and surplus material from the Property and leave the Property in a
neat and clean condition.
3.6 SUBCONTRACTORS. CONTRACTOR agrees that all the warranties contained herein
will apply to all work performed under this Agreement, including that performed by any
3
Subcontractors.
3.7 FRAUDULENT ACTS. CONTRACTOR nor any of its officers, partners, owners,
agents, representatives, employees, subcontractors or parties in interest has in any way
colluded, conspired, connived or agreed, directly or indirectly with any other bidder,
firm, or person to submit a collusive or sham bid in connection with CONTRACTOR for
which the bid has been submitted or to refrain from bidding in connection with this
Agreement, or has in any manner, directly or indirectly, sought by agreement or collusion
or communication or conference with any other bidder, firm, or person to fix any
overhead, profit, or cost element of the bid price or the bid price of any other bidder, or to
secure through any collusion, conspiracy, connivance, or unlawful agreement, any
advantage against CITY or any person interested in this Agreement; and the price or
prices quoted are fair and proper and are not tainted by any collusion, conspiracy,
connivance or unlawful agreement on the part of CONTRACTOR or any of its agents,
representatives, owners, employees, or parties in interest.
3.8 INTEREST OF MEMBERS, OFFICERS, EMPLOYEES OF PUBLIC BODY,
MEMBERS OF LOCAL GOVERNING BODY, OR OTHER PUBLIC OFFICIALS. No
member, officer, or employee of CITY, or its designees or agents, no member of the City
Council, and no other public official of CITY during his/her tenure or for one (1) year
thereafter, will have any interest, direct or indirect, in any contract or subcontract, or the
proceeds thereof, for work to be performed in connection with the program assisted under
this Agreement.
3.9 PROHIBITION OF BONUS OR COMMISSION. The assistance provided under this
Agreement will not be used in payment of any bonus or commission for the purpose of
obtaining CITY approval of the application for such assistance.
3.10 STATUTE OF LIMITATIONS. As between the parties to this Agreement, as to all acts
or failures to act by either party to this Agreement, any applicable statute of limitations
will commence to run and any alleged cause of action will be deemed to have accrued in
any and all events when the party commencing said cause of action knew or should have
known of the existence of the subject act(s) or failure(s) to act.
3.11 INDEMNIFICATION. CONTRACTOR will defend, indemnify, and hold CITY, its
successors, assigns, officers, employees and elected officials harmless from and against
all suits, actions, legal proceedings, claims, demands, damages, costs, expenses,
attorney's fees, and any and all other costs or fees arising out of, or incident to,
concerning or resulting from the fault of CONTRACTOR, or CONTRACTOR's agents,
employees or subcontractors, in the performance of CONTRACTOR's obligations under
this Agreement, no matter how, or to whom, such loss may occur. Nothing herein will be
deemed to limit the rights of CITY or CONTRACTOR (including, but not limited to the
right to seek contribution) against any third party who may be liable for an indemnified
claim.
3.12 CHANGE ORDERS. CONTRACTOR expressly agrees that no material changes or
alterations in the Work -Write Up Bid Document or price provided above will be made
4
unless in writing, mutually agreed by the homeowner, CONTRACTOR and authorized
by CITY.
3.13 TERMS. All references in this Agreement to any particular gender are for convenience
only and will be construed and interpreted to be of the appropriate gender. For the
purposes of this Agreement the term "will" is mandatory.
3.14 SEVERABILITY. Should any provision in this Agreement be found or deemed to be
invalid, this Agreement will be construed as not containing such provision, and all other
provisions which are otherwise lawful will remain in full force and effect, and to this end
the provisions of this Agreement are declared to be severable.
3.15 PUBLIC INFORMATION ACT. The CITY is governed by the Texas Public Information
Act, Chapter 552 of the Texas Government Code. This Agreement and all written
information generated under this Agreement may be subject to release under this Act.
3.16 PERFORMANCE. In performing this Agreement, CONTRACTOR will comply with all
local, state and federal laws.
3.17 LIEN WAIVERS. CONTRACTOR agrees to protect, defend, and indemnify homeowner
and CITY from any claims for unpaid work, labor, or materials with respect to
CONTRACTOR'S performance. Final payment will not be paid until the
CONTRACTOR has delivered to CITY complete release of all liens for work completed
arising out of CONTRACTOR'S performance or a receipt in full, covering all labor and
materials for which a lien could be filed or a bond satisfactory to the homeowner and
CITY indemnifying him against any lien.
3.18 REPORTING REQUIREMENTS. CONTRACTOR agrees to submit a W9 Form,
attached hereto and incorporated herein as Exhibit "B" to fulfill reporting requirements
with the Internal Revenue Service.
ARTICLE 4
SUSPENSION AND TERMINATION
4.1 If CONTRACTOR fails to fulfill in a timely and proper manner its obligations under this
Agreement, or violates any of the terms or conditions of this Agreement, then the
CONTRACTOR will have ten (10) days from the date it receives written notice from
CITY directing it to cure or correct the defects. If CONTRACTOR fails to cure or
correct the defects, CITY will have the right to terminate this Agreement and to select a
substitute CONTRACTOR. If the expense of finishing the work exceeds the amount of
this Agreement, CONTRACTOR will pay the difference to CITY. Should
CONTRACTOR fail to make corrections as directed by CITY, and such breach of
contract results in a violation of federal law or regulation for which CITY receives a
demand of reimbursement of grant funds from HUD or its successor, CITY may
terminate this Agreement immediately, and may recover from CONTRACTOR the
5
amount sought by HUD for reimbursement, up to the full amount of funds
CONTRACTOR received from CITY.
4.2 CONTRACTOR will not be relieved of the liability to CITY for damages sustained by
the CITY by virtue of any breach of this Agreement by CONTRACTOR. CITY may
withhold payment to CONTRACTOR until the amount of monetary damages due CITY
from CONTRACTOR is determined.
4.3 If CITY becomes aware of any CONTRACTOR activity which could jeopardize CITY's
position with HUD and cause CITY to return CDBG funds or other federal funds
received by CITY, CITY may take appropriate action, including injunctive relief against
CONTRACTOR, to terminate or prevent the activity. Failure of CITY to exercise this
right will not constitute a waiver by CITY of its right to demand payment or to seek any
other relief in law or in equity to which it may be entitled.
ARTICLE 5
PAYMENTS
5.1 For work completed by CONTRACTOR, as described in the Work -Write Up Bid
Document, CITY agrees to pay CONTRACTOR the Contract Amount after all of such
work is found to be satisfactorily completed and is inspected by the Construction Advisor
and CITY Inspector, in accordance with the CITY'S Prompt Payment Policy.
ARTICLE 6
ATTORNEY'S FEES
6.1 Any party to this Agreement who prevails in any legal proceedings between the parties
regarding this Agreement will be entitled to recover court costs and reasonable attorney's
fees from the non -prevailing party.
ARTICLE 7
VENUE AND REMEDIES
7.1 This Agreement is governed by the laws of the State of Texas. Exclusive venue for any
dispute arising under this Agreement is in Williamson County, Texas.
ARTICLE 8
SUCCESSORS AND ASSIGNS
8.1 CITY and CONTRACTOR, respectively, bind themselves, their successors, assigns and
legal representatives to the other party to this Agreement and to the successors, assigns
and legal representatives of the other party with respect to all covenants of this
Agreement. Except for CONTRACTOR'S assignment of mechanic's lien contracts and
mechanic's lien notes to the CITY pursuant to Paragraph 1.7, neither CITY nor
CONTRACTOR will assign, sublet, or transfer any interest in this Agreement without the
6
written consent of the other.
ARTICLE 9
ENUMERATION OF CONTRACT DOCUMENTS
9.1 This Agreement represents the entire and integrated agreement between CITY and
CONTRACTOR for the work specified in Exhibit "A" and supersedes all prior
negotiations, representations or arguments either written or oral. This Agreement may be
amended only by written instrument signed by CITY and CONTRACTOR. The
Agreement contains the following exhibits attached to and incorporated in this
Agreement for all purposes:
(1) Work -Write Up Bid Document (Exhibit "A");
(2) W9 Form (Exhibit "B").
ARTICLE 10
ACKNOWLEDGMENT
10.1 The above warranties are in addition to, and not in limitation of, any and all other rights
and remedies to which CITY and the homeowner, or subsequent owners, may be entitled,
at law or in equity, and will survive the conveyance of title, delivery of possession of the
Property, or other final settlement made by the homeowner and will be binding on the
undersigned notwithstanding any provision to the contrary contained in any instrument
heretofore, and thereafter executed by the homeowner.
This Agreement is effective as of the date first written above.
CONTRACTOR:
ALL TEX BUILDING & RESTORATION, INC.
Name
Cres',
Title
7
CITY:
CITY OF ROUND ROCK
Alan McGraw,
Mayor
ifttt0.4
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Contractor Name
Contractor Signature
Bid Due Date: 9/16/2008
PROJECT TYPE: Rehabilitation
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Form W-9
(Rev. November 2005)
DopertmentortheTreanny
Internal Revenue service
Request for Taxpayer
Identification Number and Certification
Give form to the
requester. Do not
send to the IRS.
Print or type
See Specific Instructions an page 2.
Name (as shown an you -No -we tax remm)
C Ruric,ne, 4- P•e5-21-0. I,1 -i Dn
C
Business name, if different from above
See
❑ Individual/ IyZj
Check appropriate bare Sore proprietor �i
Partnership ❑ Other ►
tempt from backup
tion lilt
withholding
`�dress (number, street, end apt. or suite no.)
2-fir '[ t,.) cl Dr
Requester's name and address (optional)
City, state, and ZIP cafe .7 2
list account number(s) here (optional)
Parti Taxpayer Identification Number (TIN)
Enter your TIN In the appropriate box. The 11N provided must match the name given on Line 1 to avoid
backup withholding. For individuals, this is your social security number (SSN). However, for a resident
alien, sole proprietor, or disregarded entity, see the Part I Instructions on page 3. For other entitles, it is
your employer identification number (E1N). If you do not have a number, see How to get a TIN on page 3.
Note. If the account is in more than one name, see the chart on page 4 for guidelines on whose
number to enter.
Part 11
Certification
Social security number
1 1+ 1+ 1 1 1
or
Employer fdenilfi on number
5b+l I bI 13101/ 10
Under penalties of perjury, I certify that
1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and
2. I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the internal
Revenue Service (IRS) that 1 am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup withholding, and
3. 1 am a U.S. person (including a U.S. resident alien).
Certification instmctions.You must cross out item 2 above if you have been notified by the iRS that you are currently subject to backup
withholding because you have faNed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply.
For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement
arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the Certification, but you must
provide your correct 11N. (See the instructions on page 4.)
Sign
Here
Uirehrre
U.S person ►
Purpose of Form
A person who is required to file an information return with the
IRS, must obtain your correct taxpayer identification number
(TIN) to report, for example, income paid to you, real estate
transactions, mortgage interest you paid, acquisition or
abandonment of secured property, cancellation of debt, or
contributions you made to an IRA.'
U.S. person. Use Form W-9 only if you are a U.S. person
(including a resident alien), to provide your correct TiN to the
person requesting it (the requester) and, when applicable, to:
1. Certify that the TIN you are giving is correct (or you are
waiting for a number to be issued),
2. Certify that you are not subject to backup withholding, or
3. Claim exemption from backup withholding if you are a
U.S. exempt payee.
In 3 above, if applicable. you are also certifying that as a
U.S. person, your allocable share of any partnership income
from a U.S. trade or business is not subject to the
withholding tax on foreign partners' share of effectively
connected income.
Note. If a requester gives you a form other than Form W-9 to
request your TIN, you must use the requester's form if it is
substantially similar to this Form W-9.
For federal tax purposes. you are considered a person if you
are:
f
orrte . %Y/off
• An individual who is a citizen or resident of the United
States,
• A partnership, corporation, company, or association
created or organized In the United States or under the laws
of the United States, or
• Any estate (other than a foreign estate) or trust See
Regulations sections 301.7701-6(a) and 7(a) for additional
information.
Special rules for partnerships. Partnerships that conduct a
trade or business in the United States are generally required
to pay a withholding tax on any foreign partners' share of
income from such business. Further, in certain cases where a
Form W-9 has not been received, a partnership 1s required to
presume that a partner is a foreign person, and pay the
withholding tax. Therefore, if you are a U.S. person that is a
partner in a partnership conducting a bade or business in the
' United States, provide Form W-9 to the partnership to
establish your'U.S. status and avoid withholding on your
share of partnership income.
The person who gives Form W-9 to the partnership for
purposes of establishing its U.S. status and avoiding
withholding on its allocable share of net income from the
partnership conducting a trade or business in the United
States is in the following cases:
• The U.S. owner of a disregarded entity and not the entity,
Cat. Na 10231X Form W-9 (Rev. 11-20051
REAL ESTATE LIEN NOTE
(Community Housing Repair and Rehabilitation Program)
Date: DeCt-MW L.) , 2008
Maker (whether one or more): Barry and Joanne Farley, a married couple
Maker's Mailing Address (including county):
1511 Lantern Light Drive
Round Rock, Texas 78681
Williamson County
Payee: CITY OF ROUND ROCK, TEXAS
1. Place for Payment (including county):
CITY OF ROUND ROCK
Attn: Home Repair and Rehabilitation Program Manager
221 East Main Street
Round Rock, Texas 78664
Williamson County
or any other place that Payee may designate in writing.
2. Principal Amount:
TWENTY FIVE THOUSAND, ONE HUNDRED EIGHTEEN DOLLARS AND 75/100
($25,118.75). In the event that actual costs associated with the repair and rehabilitation of the
Property are less than the aforesaid Principal Amount, Maker shall be credited the difference
between the Principal Amount and the actual costs.
3. Annual Interest Rate on Unpaid Principal from Date: The highest interest rate allowed
by law will be charged on this Note if a Default has been declared by the Note Holder as
stated in Paragraph 12 of this Note.
4. Maker's Promise to Pay
a. Purpose This Note implements requirements applicable to assistance furnished by Payee
to Maker under a program to help eligible families with home repairs and rehabilitation
being carried out by Payee, which, for certain loans may use grant funds furnished by
HUD through the CDBG program. The Payee has assisted the Maker with respect to
rehabilitation of the Property, for use as the Maker's principal residence.
149526.doc/jmr
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1
b. Promise to Pay Maker promises to Pay to the order of Payee at the place for payment and
according to the terms of payment the principal amount plus interest, if any, plus other
charges at the rates stated above.
5. Terms of Payment:
a. Subsidy Repayment Obligation Principal In return for assistance Maker has received
with respect to rehabilitation of the Property, Maker promises to pay the Principal
Amount as stated in Paragraph 2 to the order of Payee. Payment of Principal under this
Note will be initially deferred. Such deferral shall end and the total Principal Amount
shall be due and payable on the date of an event of Default as stated in Paragraph 9.
b. Deferral and Payment of Principal The outstanding principal balance of this Note shall
remain the same as the amount stated in Paragraph 2 until five (5) years from the date of
this Note. If there is a Deferral Termination Event, as defined in paragraph (c) below,
within the five (5) years from the date of this Note, Maker shall repay the principal loan
amount to Payee. If there is no Deferral Termination Event within five (5) years from the
date of this Note, the loan shall be forgiven.
c. Deferral Termination Event Any of the following constitute a Deferral Termination
Event:
i. Rental during term of Note. If the Maker rents or leases (including an oral lease)
the Property to any person or entity during the term of this Note, the deferral period
stated above is terminated.
ii. Failure to Occupy Property as Principal Residence during the term of the Note.
If all Makers are continuously absent from the Property for a period of more than
thirty (30) days, or move substantially all their personal possessions out of the
Property, without the written consent of the Note Holder, the Makers shall be deemed
not to be occupying the Property as their Principal Residence and the deferral period
stated above is terminated.
iii. Any Transfer of the Property. Any transfer of the Property or any interest therein
(including a beneficial interest) within five (5) years of the signing of this Note
terminates the deferral period under this Note. Maker authorizes the Note Holder to
determine, in its sole discretion, whether a transfer of a portion of the Property, or a
partial interest therein, or any other reason has an effect on the value of the Note
Holder's interest substantial enough to be considered a transfer for purposes of this
Paragraph 9. Maker will mail, certified mail, return receipt requested, or deliver
notice of any proposed transfer and a copy of the sales contract to the Note Holder at
least fourteen (14) calendar days before the proposed Closing Date, at the Place for
Payment as stated in Paragraph 1 or any other place that Payee may designate in
writing. Exceptions to this provision are limited to (a) a subordinate lien or
encumbrance that does not transfer rights of occupancy of the Property; (b) creation
of a purchase -money security interest for household appliances; (c) transfer by devise,
descent, or operation of law on the death of a co -Grantor; (d) transfer to a spouse or
2
children of Grantor or between co -Grantors; (e) transfer to a relative of Grantor on
Grantor's death; and (f) transfer to an inter vivos trust in which Grantor is and
remains a beneficiary and occupant of the Property.
6. Security for Payment and Obligations:
a. In addition to the protections given to the Note Holder under this Note, this Note is
secured by a subordinated deed of trust, of even date, from Maker to Stephan L. Sheets,
Trustee, that conveys the Property as described below in trust (collectively, the
"Subordinate Security Instrument").
b. The lien securing this Note shall remain subordinate to the indebtedness evidenced by
one or more Notes payable to the Financial Institutions as defined below, which Notes
are secured by the Senior Liens as defined below, and as renewed, extended, re -
amortized, or otherwise adjusted from time to time; provided, however, that the renewal,
extension, or other credit extension does not constitute an increase in the unpaid principal
balance of the Financial Institutions' indebtedness.
c. The Subordinate Security Instrument describes the conditions under which Maker may be
required to make immediate payment in full of all amounts Maker owes under this Note.
One of those conditions set forth therein is that if all or any part of the Property or any
interest in it (including a beneficial interest) is sold or transferred without compliance
with the terms of this Note and the Subordinate Security Instrument, the Note Holder will
require immediate payment in full of all sums secured by the Subordinate Security
Instrument. In the event of such a sale, or in the event of any other Default under this
Note or the Subordinate Security Instrument, the Note Holder may give the Maker Notice
of Default and acceleration under Paragraph 9 of this Note.
7. Additional Definitions:
a. "Bona Fide Net Resale Proceeds" means the amount calculated by the Note Holder by
subtracting from the contract sales price between the Maker and the proposed buyer for
the Property the amounts due on the Closing Date on any "Senior Liens" and on
"Maker's Other Liens", and also subtracting the amount of any reasonable and
customary sales expenses paid by the Maker in connection with the sale, each as
determined by the Note Holder. If any part of the contract sales price for the Property is
paid in the form of a promissory Note, or any thing of value other than lawful money of
the United States, the Note Holder is hereby authorized to assign a fair market value
thereto. Maker agrees to accept such thing of value at such assigned fair market value as
part of maker's equity, or to allow it to be retained by the Note Holder as Alternate
Principal, as the Note Holder in its sole discretion may determine.
b. "Closing Date" means the date of closing of Maker's sale of the Property to a buyer, or
if there is no formal closing, the date on which the conveyance (deed) is recorded.
3
c. "Home Repair and Rehabilitation Payment Activity" means any loan made by Payee
using either CDBG funds or other funds to assist a Homeowner with payment funds for
minor repairs on a home.
d. "Financial Institution(s)" means Mortgage Electronic Registration Systems, Inc., as
Nominee for RBD Mortgage Company.
e. "CDBG" means Community Development Block Grant program.
f. "HUD " means the United States Department of Housing and Urban Development.
g.
"Maker's Other Liens" means unpaid liens or other charges that Maker authorized, or
allowed to exist against the Property since the date of this Note. Such liens may include,
for example, liens for money borrowed to finance additional improvements, home equity
lines of credit, and other voluntary liens, liens for unpaid taxes, special assessments,
water, sewer, and other utility charges, mechanics' liens, and other liens and charges
arising by operation of law; and judgment or other creditor's liens, any of which may
affect the amount of the sales proceeds, Maker hereby authorizes Note Holder to
determine, in Note Holder's sole discretion, the amount by which these liens or charges
reduce the Bond Fide Net Resale Proceeds for the Property, and to reduce the amount
payable to Maker as maker's equity by an equal amount.
h. "Note Holder" means the lender of any authorized party who takes this Note by
assignment and is entitled to receive amounts due under this Note.
i. "Property" means the certain real property described on Exhibit "A" attached to this
Note and by this reference incorporated in it.
J.
"Senior Lien Note(s)" means the Note(s) in the original principal amount of
$105,661.00, filed the 26th day of January, 2005, executed by Maker, payable to the
order of Financial Institutions, and fully described in the Senior Liens.
k. "Senior Lien(s)" means a deed of trust(s) recorded in the real property records of
Williamson County, Texas as Document No. 2005006368 and Document No.
2005006369 securing the Senior Lien Note(s).
1. "Subordinate Security Instrument" means the instruments identified in Paragraph 6.a.
8. Maker's Right to Prepay
Maker may make a full prepayment or partial prepayments without paying any prepayment
or interest charge. In the event of prepayment, the Note Holder will use all of Maker's
prepayments to reduce the amount of Principal that Maker owes under this Note.
4
9. Default
a. Events of Default Any of the following events shall constitute a Default under this Note,
as of the date of the Notice of Default under Paragraph 10:
i. The Property or Maker is not Eligible under CDBG. The Maker is in default
under this Note, if:
(1) at the time the Note was signed by Maker, the Property:
(a) did not become the principal residence of the Maker; or
(b) was in an area identified by the Federal Emergency Management Agency as
having a special flood hazard, or, if the Property is in a flood hazard area,
flood insurance had not been obtained by Maker;
(2) at the time Maker purchased the Property, the Maker's household was not a low-
income family as stated at 24 CFR §92.217 at the later of (a) Maker's occupancy
of the Property, or (b) at the time the Principal is advanced; or
(3)
at the time Maker purchased the Property, any employee, agent, consultant,
officer, or elected or appointed official who exercises or has exercised any
functions or responsibilities with respect to activities assisted with CDGB funds
or who are in a position to participate in a decision making process or gain inside
information with regard to these activities, has obtained a financial interest or
benefit from a Home Repair and Rehabilitation Payment Activity, or has an
interest in any contract, subcontract, or agreement with respect thereto, or the
proceeds thereunder, either for themselves or those with whom they have family
or business ties, during their tenure or for one year thereafter as stated at the
conflict of interest provisions of 24 C.F.R. §92.356.
ii. Any Default under the Note or the Subordinate Security Instrument:
(1)
If there is an uncured default in payment of any part of principal or interest of the
Financial Institutions' $105,661.00 Note or in observance of any obligations or
covenants of any instruments securing them, the debt evidenced by this Note shall
immediately become payable at the option of Payee at the end of the cure period.
(2) If Maker defaults in the payment of this Note or in the performance of any
obligation in any instrument securing or collateral to it, and the default continues
after Payee gives Maker notice of the default and the time within which it must be
cured by Maker, as may be required by law or by written agreement, then Payee
may declare the unpaid principal balance and earned interest on this Note
immediately due.
(3)
If Maker fails to perform any of Maker's obligations in this Note or in the
instruments securing it, Payee may perform those obligations and be reimbursed
5
by Maker, on demand, at the place where this Note is payable for any amounts so
paid, including attorney's fees, plus interest on those amounts from the date of
payment at the annual interest rate on the matured, unpaid amount. The amount to
be reimbursed shall be secured by all instruments securing this Note.
iii. Any Refinancing of the Senior Lien Notes. If either the Senior Lien Notes are
refinanced or the Maker's equity interest in the property pursuant to Art. 16 § 50(a)(6)
of the Texas Constitution is financed and the refinancing or financing is without
Payee's prior written approval, the outstanding principal balance and accrued interest
if any, of this Note shall be due and payable as described in Paragraph 5.
iv. Maker's Fraud or Misrepresentation. Any willful misstatement of, or failure to
disclose, a material fact by Maker relating to his or her eligibility for assistance with
respect to the Property under the Home Repair and Rehabilitation program under the
CDBG program is a Default under this Paragraph. Recovery against the Maker
responsible for the fraud or misrepresentation is not limited to the proceeds of sale of
the Property, but may include personal judgment and execution thereon to the full
extent authorized by law. Maker represents that all statements contained in the
Application for this loan with the City of Round Rock are true and correct.
b. Notice of Default and Amount Due If Maker is in Default, the Note Holder may send
Maker a written notice stating the reason Maker is in Default and telling Maker to pay
immediately: (i) the full amount of Principal then due on this Note, (ii) all of the interest
that Maker owes, and that will accrue until paid, on that amount, and (iii) all of the Note
Holder's costs and expenses reimbursable under Paragraph 9.c.
c. Payment of Note Holder's Costs and Expenses If the Note Holder has notified Maker to
pay immediately in full under Paragraph 10 and this Note or any instrument securing or
collateral to it is given to an attorney for collection or enforcement, or if suit is brought
for collection or enforcement, or if it is collected or enforced through probate,
bankruptcy, or other judicial proceeding, then Note Holder has the right to be repaid from
the proceeds of foreclosure for all of its costs and expenses in enforcing this Note to the
extent not prohibited by applicable law. Those expenses include, for example, all costs of
collection and enforcement, including reasonable attorney's fees and court costs, in
addition to other amounts due. Reasonable attorney's fees shall be 10% of all amounts
due unless either party pleads otherwise.
d. No Waiver By Note Holder Even if, at a time when Maker is in Default, the Note Holder
does not require Maker to pay immediately in full under Paragraph 10, the Note Holder
will still have the right to do so if Maker is in Default for the same reason, or for another
reason, at a later time.
10. Giving of Notices
Unless applicable law requires a different method, any notice that must be given to Maker
under this Note will be given by delivering it or by mailing it by first class mail to Maker at
6
the Property Address above, or at a different address if Maker gives the Note Holder a notice
of Maker's different address.
Any notice that must be given to the Note Holder under this Note will be given by mailing it
by first class mail to the Note Holder at the Place for Payment stated in Paragraph 1, or at a
different address, if Maker is given a notice of that different address.
11. Obligations of Persons under this Note
If more than one person signs this Note, each person is fully obligated to keep all of the
promises made in this Note, including the promise to pay the full amount owed from the
proceeds of sale of the Property. Any person who is a guarantor, surety or endorser of the
Note is also obligated to the same extent. Any person who takes over these obligations,
including the obligations of a guarantor, surety or endorser of this Note, is also obligated to
keep all of the promises made in this Note. The Note Holder may enforce its rights under this
Note against each person individually or against all of the persons signing the Note together.
12. Maximum Interest on the Debt
Interest on the debt evidenced by this Note shall not exceed the maximum amount of
nonusurious interest that may be contracted for, taken, reserved, charged, or received under
law; any interest in excess of that maximum amount shall be credited on the principal of the
debt or, if that has been paid, refunded. On any acceleration or required or permitted
prepayment, any such excess shall be canceled automatically as of the acceleration or
prepayment or, if already paid, credited on the principal of the debt or, if the principal of the
debt has been paid, refunded. This provision overrides other provisions in this and all other
instruments concerning the debt.
13. Waivers
Maker and any person who has obligations under this Note waive all demands for payment,
presentations for payment, notices of intention to accelerate maturity, notices of acceleration
of maturity, protests, notices of protest, the rights of presentment, and notice of dishonor to
the extent not prohibited by applicable law "Presentment" means Maker's right to require the
Note Holder formally to demand payment of amounts due. "Notice of dishonor" means the
right to require the Note Holder to give notice to other persons that amounts due have not
been paid.
14. Release and Satisfaction
This Note shall be deemed satisfied and Maker shall be entitled to a release of the
Subordinate Security Instrument upon payment of a reasonable fee, as determined by the
Note Holder, for preparation and recordation of the release upon forgiveness of the loan, or
repayment of the principal loan amount under Paragraph 5, upon full prepayment under
Paragraph 8, upon payment of all amounts due upon Default under Paragraph 9, or upon
recordation of a deed -in -lieu of foreclosure.
15. Governing Law
To the extent not inconsistent therewith, this Note and the Subordinate Security Instrument
shall be governed by the law of the State and local jurisdiction in which the Property is
located.
Each Maker is responsible for all obligations represented by this Note.
When the context requires singular nouns and pronouns include the plural.
EXECUTED AND DELIVERED as of the day and year first above written.
Joa e Farley
Barry Farl
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on this the
2008 by Joanne Farley.
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on this the
2008 by Barry Farley.
PLEASE RETURN TO:
d6 day of 4Ad-vendaed
�`NNUNNJ►N�
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day of 0 v'd HI'``\
Notary Public, State of Texas
Sheets & Crossfield, P.C.
309 E. Main St.
Round Rock, Texas 78664
8
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PRIMA B. (����,�
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EXHIBIT "A"
(Legal Description of Property)
The Property (including any improvements) referred to in this agreement is described as
follows:
LOT 36, BLOCK K, SAM BASS TRAILS, SECTION ONE, a subdivision in
Williamson County, Texas, according to the map or plat thereof recorded in
Cabinet I, Slide 260, Plat Records, Williamson County, Texas.
9
DEED OF TRUST
(Community Housing Repair and Rehabilitation Program)
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,
YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION
FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC
RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE
NUMBER.
Date: t ct44 -mit' I) , 2008
Grantor (whether one or more):
Barry and Joanne Farley, a married couple.
Grantor's Mailing Address (including county):
1511 Lantern Light Drive
Round Rock, Texas 78681
Williamson County
Trustee: Stephan L. Sheets
Trustee's Mailing Address (including county):
Stephan L. Sheets
309 East Main Street
Round Rock, Texas 78664
Williamson County
Beneficiary: City of Round Rock, Texas, a Texas home -rule municipality
Beneficiary's Mailing Address (including county):
City of Round Rock
Attn: Home Repair and Rehabilitation Program Manager
221 East Main
Round Rock, Texas 78664
Williamson County
Note(s)
Date: tZCtMbiAr 10 , 2008
Amount: $25,118.75
149526.doc/jmr
1
Maker (whether one or more):
Barry and Joanne Farley, a married couple
Payee: CITY OF ROUND ROCK, TEXAS, a Texas home -rule municipality
Final Maturity Date: As provided in the Note.
Terms of Payment (optional): As provided in the Note.
Property (including any improvements):
The certain real property more particularly described on Exhibit "A" attached to this
Deed of Trust and by this reference incorporated in it, all fixtures and improvements
situated thereon and all rights, titles and interests appurtenant thereto.
Prior Lien(s) (including recording information):
The liens securing another note in the original principal amount of $105,661.00, filed the
26th day of January, 2005 executed by Grantor, payable to the order of Mortgage
Electronic Registration Systems, Inc., as Nominee for RBD Mortgage Company
("Financial Institution"), including without limitation the liens evidenced by that certain
deed of trust and security agreement, of even date, executed by Grantor in favor of
Financial Institution and recorded in the real property records of Williamson County,
Texas.
Other Exceptions to Conveyance and Warranty:
1. Note dated of even date herewith, between Grantor and Beneficiary (the "Note"). All
obligations and covenants in the Note shall terminate on the date Beneficiary, in its
sole discretion, issues a release of all present and future rights to establish or enforce
the Deed of Trust lien that secures the Note. The release shall be in such form as to
enable it to be recorded in the real property records of Williamson County, Texas;
and
2. Easements, rights-of-way, and prescriptive rights, whether of record or not; all
presently recorded instruments that affect the Property; taxes for 2007, the payment
of which Grantor assumes; and subsequent assessments for that and prior years due to
change in land usage, ownership, or both, the payment of which Grantor assumes.
For value received and to secure payment of the Note, Grantor conveys the Property to Trustee
in trust. Grantor warrants and agrees to defend the title to the Property. If Grantor performs all
the obligations and covenants in the Note and pays the Note according to its terms, this Deed of
Trust shall have no further effect, and Beneficiary shall release it at Grantor's expense.
2
Grantor's Obligations
Grantor agrees to:
1. keep the Property in good repair and condition;
2. pay all taxes and assessments on the Property when due;
3. preserve the lien's priority as it is established in this Deed of Trust;
4. maintain, if applicable in a form acceptable to Beneficiary, an insurance policy that:
a. provides flood insurance at any time the Property is in a flood hazard area; and
b. contains such other coverage as Beneficiary may reasonably require;
5. deliver the insurance policy to Beneficiary and deliver renewals to Beneficiary at
least ten days before expiration;
6. keep any buildings occupied as required by the insurance policy;
7. if this is not a first lien, pay all prior lien notes that Grantor is personally able to pay
and abide by all prior lien instruments;
8. if all or any part of the Property or an interest in it (including a beneficial interest) is
sold or transferred without compliance with the terms of the Note and this Deed of
Trust, immediately pay in full to Beneficiary all sums secured by this Deed of Trust;
and
9. comply at all times with the terms, representations, and conditions of the Note.
Beneficiary's Rights
1. Beneficiary may appoint in writing a substitute or successor trustee, succeeding to all
rights and responsibilities of Trustee.
2. If the proceeds of the Note are used to pay any debt secured by prior liens,
Beneficiary is subrogated to all of the rights and liens of the holders of any debt so
paid.
3. If applicable, Beneficiary may apply any proceeds received under the insurance
policy either to reduce the Note or to repair or replace damaged or destroyed
improvements covered by the policy.
4. If Grantor fails to perform any of Grantor's obligations, Beneficiary may perform
those obligations and be reimbursed by Grantor on demand at the place where the
Note is payable for any sums so paid, including attorney's fees, plus interest on those
3
sums from the dates of payment at the rate stated in the Note for matured, unpaid
amounts. The sum to be reimbursed shall be secured by this Deed of Trust.
5. If Grantor defaults on the Note, or if Grantor fails to perform any of Grantor's
obligations, or if all or any part of the Property or an interest in it (including a
beneficial interest) is sold or transferred without compliance with the terms of the
Note and this Deed of Trust, or if default occurs on a prior lien note or other
instrument, and the default continues after Beneficiary gives Grantor notice of the
default and the time within which it must be cured, as may be required by law or by
written agreement, then Beneficiary may:
a. declare the unpaid principal balance and carried interest on the Note immediately
due;
b. request Trustee to foreclose this lien, in which case Beneficiary or Beneficiary's
agent shall give notice of the foreclosure sale as provided by the Texas Property
Code as then amended; and
c. purchase the Property at any foreclosure sale by offering the highest bid and then
have the bid credited on the Note.
6. If the Grantor defaults on the Note or fails to perform any of Grantor's obligations
under this Deed of Trust, the Beneficiary shall provide the Financial Institution, a
prior lienholder, with copies of all correspondence transmitted to Grantor regarding
the default or notice of acceleration.
Trustee's Duties
If requested by Beneficiary to foreclose this lien, Trustee shall:
1. either personally or by agent give notice of the foreclosure sale as required by the
Texas Property Code as then amended;
2. sell and convey all or part of the Property to the highest bidder for cash with a general
warranty binding Grantor, subject to prior liens and to other exceptions to conveyance
and warranty;
3. from the proceeds of the sale, pay, in this order:
a. expenses of foreclosure, including a commission to Trustee of five (5) percent of
the bid;
b. to Beneficiary, the full amount of principal, interest, attorney's fees, and other
charges due and unpaid;
c. any amounts required by law to be paid before payment to Grantor; and
4
d. to Grantor, any balance; and
4. if the prior lien has not been released, give written notice to Financial Institution that
Grantor is in default under this Deed of Trust and a copy of the notice of foreclosure
sale given Grantor.
General Provisions
1. If any of the Property is sold under this Deed of Trust, Grantor shall immediately
surrender possession to the purchaser. If Grantor fails to do so, Grantor shall become
a tenant at sufferance of the purchaser, subject to an action for forcible detainer.
2. If Grantor transfers any part of the Property without Trustee's prior written consent,
Trustee may declare the Note secured by this Deed of Trust immediately payable and
invoke any remedies provided in this Deed of Trust for default. If the Property is
residential real property containing fewer than five dwelling units or a residential
manufactured home occupied by Grantor, exceptions to this provision are limited to
(a) a subordinate lien or encumbrance that does not transfer rights of occupancy of the
Property; (b) creation of a purchase -money security interest for household appliances;
(c) transfer by devise, descent, or operation of law on the death of a co -Grantor; (d)
transfer to a spouse or children of Grantor or between co -Grantors; (e) transfer to a
relative of Grantor on Grantor's death; and (f) transfer to an inter vivos trust in which
Grantor is an remains a beneficiary and occupant of the Property.
3. Recitals in any Trustee's deed conveying the Property will be presumed to be true.
4. Proceeding under this Deed of Trust, filing suit for foreclosure, or pursuing any other
remedy will not constitute an election of remedies.
5. This lien shall remain superior to liens later created even if the time of payment of all
or part of the Note is extended or part of the Property is released.
6. If any portion of the Note cannot be lawfully secured by this Deed of Trust, payments
shall be applied first to discharge that portion.
7. Grantor assigns to Beneficiary all sums payable to or received by Grantor from
condemnation of all or part of the Property, from private sale in lieu of condemnation,
and from damages caused by public works or construction on or near the Property.
After deducting any expenses incurred, including attorney's fees, Beneficiary may
release any remaining sums to Grantor or apply such sums to reduce the Note.
Beneficiary shall not be liable for failure to collect or to exercise diligence in
collecting any such sums.
8. Following the maturity of the above described Financial Institution loan, Grantor
assigns to Beneficiary absolutely, not only as collateral, all present and future rent
and other income and receipts from the Property. Prior to such maturity Borrower's
rights shall not arise under this paragraph 8. Leases are not assigned. Grantor
5
warrants the validity and enforceability of the assignment. Grantor may as
Beneficiary's licensee collect rent and other income and receipts as long as Grantor is
not in default under the Note or this Deed of Trust. Grantor will apply all rent and
other income and receipts to payment of the Note and performance of this Deed of
Trust, but if the rent and other income and receipts exceed the amount due under the
Note and Deed of Trust, Grantor may retain the excess. If Grantor defaults in
payment of the Note or performance of this Deed of Trust, Beneficiary may terminate
Grantor's license to collect and then as Grantor's agent may rent the Property if it is
vacant and collect all rent and other income and receipts. Beneficiary neither has nor
assumes any obligations as lessor or landlord with respect to any occupant of the
Property. Beneficiary may exercise Beneficiary's rights and remedies under this
paragraph 8 without taking possession of the Property. Beneficiary shall apply all rent
and other income and receipts collected under this paragraph 8 first to expenses
incurred in exercising Beneficiary's rights and remedies and then to Grantor's
obligations under the Note and this Deed of Trust in the order determined by
Beneficiary. Beneficiary is not required to act under this paragraph 8, and acting
under this paragraph 8 does not waive any of Beneficiary's other rights or remedies. If
Grantor becomes a voluntary or involuntary bankrupt, Beneficiary's filing a proof of
claim in bankruptcy will be tantamount to the appointment of a receiver under Texas
law.
9. Interest on the debt secured by this Deed of Trust shall not exceed the maximum
amount of nonusurious interest that may be contracted for, taken, reserved, charged,
or received under law; any interest in excess of that maximum amount shall be
credited on the principal of the debt or, if that has been paid, refunded. On any
acceleration or required or permitted prepayment, any such excess shall be canceled
automatically as of the acceleration or prepayment or, if already paid, credited on the
principal of the debt or, if the principal of the debt has been paid, refunded. This
provision overrides other provisions in this and all other instruments concerning the
debt.
10. Grantor represents that this Deed of Trust and the Note are given as security for
money provided for home repairs on the Property.
11. Except where otherwise required or permitted by the Beneficiary in connection with a
transfer on death, divorce, legal separation, or legal incapacity of a Grantor as
provided in the Note, the Note and this Deed of Trust may not be assumed.
12. If Grantor fails to pay any part of principal or interest secured by a prior lien or liens
on the Property when it becomes payable or defaults on any prior lien instrument, the
debt secured by this Deed of Trust shall immediately become payable at the option of
Beneficiary.
13. Beneficiary and Grantor acknowledge and agree that this Deed of Trust is subject and
subordinate in all respects to the liens, terms, covenants and conditions of the prior
lien and to all advances heretofore made or which may hereafter be made pursuant to
the prior lien, including all sums advanced for the purpose of (a) protecting or further
6
securing the lien of the prior lien or (b) constructing, renovating, repairing,
furnishing, fixturing or equipping the Property. The terms and provisions of the prior
lien are paramount and controlling, and they supersede any other terms and
provisions of this Deed of Trust in conflict therewith. In the event of a foreclosure or
deed in lieu of foreclosure of the prior lien, any provisions herein or any provision in
any collateral agreement restricting the use of the Property to low or moderate income
households or otherwise restricting the Grantor's ability to sell the Property shall have
no further force or effect on subsequent owners or purchasers of the Property. Any
person, including his successors or assigns (other than the Grantor or a person or
entity related to the Grantor), receiving title to the Property through foreclosure or
deed in lieu of foreclosure of the prior lien shall receive title to the Property free and
clear from such restrictions. Further, if the Financial Institution acquires title to the
Property pursuant to a deed in lieu of foreclosure, the lien of this Deed of Trust shall
automatically terminate upon the Financial Institution's acquisition of title, provided
that (i) the Beneficiary has been given written notice of a default under the prior lien
and (ii) the Beneficiary (or another party acting on its behalf) shall not have cured the
default under the prior lien, or diligently pursued curing the default as determined by
the Financial Institution, within the sixty-day period provided in such notice sent to
the Beneficiary.
14. To the extent not inconsistent therewith, this Deed of Trust and the Note shall be
governed by the laws of Texas and the local jurisdiction in which the Property is
located.
15. When the context requires, singular nouns and pronouns include the plural.
16. The term "Note" includes all sums secured by this Deed of Trust.
17. This Deed of Trust shall bind, inure to the benefit of, and be exercised by successors
in interest of all parties.
18. If Grantor and Maker are not the same person, the term "Grantor" shall include
Maker.
EXECUTED AND DELIVERED as of the date first above written.
(Signatures on the following page.)
7
GRANTOR:
GRANTOR:
A_'A'
rry Farl ' 1
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on this the Z-0, ,r
day of �4 ✓d ' -de--.
2008 by Joanne Farley.
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on this the Z(D day of AlO ,
2008 by Barry Farley.
PLEASE RETURN TO:
Sheets & Crossfield, P.C.
309 E. Main St.
Round Rock, Texas 78664
8
aele6z.itz-t3
Notary Public, State of Texas
011111111b0i��/.
.p,RY PSB 0,��`��.
EXHIBIT "A"
(Legal Description of Property)
The Property (including any improvements) referred to in this agreement is described as
follows:
LOT 36, BLOCK K, SAM BASS TRAILS, SECTION ONE, a subdivision in
Williamson County, Texas, according to the map or plat thereof recorded in
Cabinet I, Slide 260, Plat Records, Williamson County, Texas.
6
9