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R-06-04-13-10E4 - 4/13/2006RESOLUTION NO. R -06-04-13-10E4 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 - Community Housing Repair Program Homeowner Agreement with Joseph and Marion Barresi for the rehabilitation of Lot 3, Block J, Mesa Park Section 2, also known as 1709 Mesa Park Drive West ("Property"), and WHEREAS, the City Council desires to enter into a Community Development Block Grant - Community Housing Repair 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 - Community Housing Repair Program Homeowner. Agreement with Joseph and Marion Barresi, and a Community Development Block Grant - Community Housing Repair Program 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. @PFDesktop\:: ODMA/WORLDOX/O:/WDOX/RESOLUT1/R60413E4.WPD/sc 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 13th day of April, 2006. ST: W L ayor City of Round Rock, Texas CHRISTINE R. MARTINEZ, City etary 2 COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) - COMMUNITY HOUSING REPAIR PROGRAM HOMEOWNER AGREEMENT This CDBG Community Housing Repair Program Homeowner Agreement ("Agreement"), is made this day of , 2006, between the City of Round Rock, Texas, 221 East Main Street, Round Rock, Texas ("CITY"), and Joseph Barresi and Marion Barresi, 1709 W. Mesa Park Drive, Round Rock, Texas, 78664, (collectively, "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 3, Block "J", Mesa Park Section Two, a subdivision in Williamson County, Texas, according to the map or plat thereof recorded in Cabinet C, Slide 50, Plat Records of Williamson County, Texas, also known as 1709 W. Mesa Park Drive, as specified in the Statement of Work, 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, 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"), $7,764.00 ("Contract Price") for labor, materials and equipment utilized in the rehabilitation of HOMEOWNER's above -referenced property, as specified in the Statement of Work. 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 $15,000.00. 1.3 The loan awarded is forgivable provided the terms of this Agreement are met. 00091422 1 EXHIBIT ''A'' 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". Should the residence be sold prior to the expiration of the five (5) years, CITY will be reimbursed the full amount of the award, $7,764.00, as per the requirements of the Real Estate Lien Note. 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 Minor Home Repair 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. 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 2 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 Statement of Work 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. 3.10 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. 3 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 ofreimbursement 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. 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. 4 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) Statement of Work (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: CITY: City of Round Rock 4a vta.dec_ Jose Barresi Name ll I 0(,,XX-eA-/ jr4-'44.-4/ Marion Barresi Title 5 EXHIBIT "A" STATEMENT OF WORK Bid Due Date: 1/24/2006 PROJECT TYPE: Minor Rehabilitation o d W Quantity Unit U 1— S QU F- J z a (LLo J CD 1 LL Q 1-gU X(5 <O- wUJ Z �wQ U Q UJ 2: _Z J OHF - W W Z WOW O ccQ Lcu)>2 r 0 .3 v) (n c co a) E U O) _O Q 0 a YL 5 a i v w BATHROOM ENTRY DOOR. M O O ctO w 00 -J -J Q LL1 1-- 0 0 wU W as o a) i_c O N °-)s co o c c := a. c Q co L) a.) to -6 u c 7-_- M > 0)(5 ` O N '� O O e- N f0 e 2 ') O U t� " as n cc v rt a n.0 ai— U aQ :,(2'L6 �m 33 (13 a (1) CD D 15 ai as x c = O � CD a3 ws _Oo (`w wmUNpa>� c C O p �c0 >>)O O O O D-oO O Cpnn Q�� N BATH ELEC. Round Rock, 7X 1709 FP: Mesa Park Monday, December 05, 2005 § w w w w � � 5 ± FRONT ENTRY GARAGE (1), REAR (1) L m 2 O W G® .<9u CDCO <0 Ew -IZ 32 ww <> 0q _k <C -J wi act 2m ) E ©© § 4.w ® � n 6 —� co a m c c k2 O c 0�2 /k —�� 0 (o f\ & 43•g » E t c k - _0 \ 2 0% a & r \ ƒ C E � \ \ ° / 8 \ O � . _ �� 5 o o �k kfk_ To' O° %�kk 0 c Cn� La• � -a)� ®� /��ƒ 0 /\ �R �§� Dk 0� uiv. a1 o t c& O e occ 0002 k %%\ ƒ\2 $/°oA O®0 _ —Q ® ctcoE �k �a /k\02�rn/ k3 /20 ��E\ Q 2c 3ƒ&� §§Gf>& �3�� /� ��®® 7—o uo� OL£ w ok Ce -Ne \k»2 o\k k%/ 2�qƒ CO�E�/q a c E % ..9. • =.£a O -c3 EE 75- c coo a§ (2\/k u X Q o o $ / / Round Rock, TX 1709 W. Mesa Park Monday, December 05, 2005 0 w 1- X W FRONT ENTRY. a a) o C v U CaN c a_ .c a' N - o c (D 'C o U N U CDa) a a) -o E .c 'N co _ ra)co 0 c Fo.r U O U c •� TD- U O C C •E 0 o N a 2 W N • O a) E O2 S (o0 a) 0 0) 1 < U X • W a O O ce• ;QF2 W E8L�' aoW a) .5 Q W 'O Wixo U O U a•E aa 0 w 1-- z W ri cc) ao FRONT BEDROOM gt oOa0 O C a) o -0 a U t s U a) E 13 co «. a) O a 3a)—Oo a)y .o aQa a - N Y a co c _co) >o0°c cc) E .le -1-.,... a) a o vcn2c: a)1:3 CO a3i-0"3 c•3 N• 0 c a) U o CO O) v) o — a) aoi�oia>,� -35 -rn O ..C. t.,, C a• — O 3 O a a)0 3 m o - D .c o co m o U a) a 0 C a co (/) 00 caii 5 W'in w X U 1()F• T Round Rock, TV 1709 W. Mesa Park Monday, December 05, 2005 w w � a n « & 0 m wOwW 0¥ x 0° �0 CC ZEA 00 3kG 000 aw 3uY Z0w 0/ -2W� �Zk LLF- « Q E /EZ <LZ0 -II- �CC� <I -g01 - R%ƒ ƒ/?Y g<k w w Q 0 ¥ = i m \ c\ / £@T /2 = %®E 0 ak 2 0 2 k22 a /® 2 5v, ƒ %/ Cr) o@t 11 ƒ 7 Cr/ q• E a/2 \ ¥O o2 �0- ƒ c 0 0 2 6 © E 0_ o o ° x @ ct / \ 0 CL 2 &/ » Q0 c � �50 §° c 2 X ƒ/% 0 b> -u)� �/6 0 0§ 0-0 00 -E �0�� -cƒ 2\» w2[ f»$» 7a in U_ 7 0 0Ek/ k\ 0 I- r- 0 NC - C•4 OF UTILITY ROOM #1 WATER HEATER SHUTOFF % c a) 775 ka) c -\ cia Dc o 01 ƒc / c- /2 kf a_@ 3Q. c c CL \ k 4-5 > O E 0 0 w U� m� ® % I § v2 /f �/ 52 (1 CN Round Rock, TX 1709 W. Mesa Park Monday, December 05, 2005 EXHIBIT "B" INCOME LIMITS MAXIMUM INCOME CHART Household Size Maximum Income (80% of the Area Median) 1 person $39,800 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 11, 2005 EXHIBIT "C" CONTRACTOR'S AGREEMENT COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) - COMMUNITY HOUSING REPAIR PROGRAM CONTRACTOR AGREEMENT This CDBG Community Housing Repair Program Contractor Agreement (Agreement), is made this day of , 2006, 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 77317 ("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 3, Block "J", Mesa Park Section Two, a subdivision in Williamson County, Texas, according to the map or plat thereof recorded in Cabinet C, Slide 50, Plat Records of Williamson County, Texas, also known as 1709 W. Mesa Park Drive, Round Rock, Texas, as specified in the Statement of Work, 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 $7,764.00 ("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 Statement of Work after it 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. If CONTRACTOR is requesting payments of the Contract Amount prior to the completion of all work described in the Statement of Work, CONTRACTOR will submit a performance bond to CITY as part of this Agreement. CITY will pay CONTRACTOR for work in accordance with CITY'S Prompt Payment Policy, as defined in the City of Round Rock Minor Horne Repair Program Policies and Procedures. 1.3 CONTRACTOR will not deviate from the work described in the Statement of Work without a change order from CITY. Any such change order will be included in an amendment to this 00096169 Agreement. The Contract Amount and any change orders will not exceed a total of $15,000.00. 1.4 All work specified in the Statement of Work will be satisfactorily completed within ninety (90) days from the date of the Notice to Proceed. 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 Statement of Work, CONTRACTOR will not receive funding for any work that is found to be improperly performed or incomplete. 2.3 CONTRACTOR understands that a performance bond is required as part of this Agreement if CONTRACTOR is requesting payments of the Contract Amount prior to the completion of all work described in the Statement of Work. 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 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 2 codes and requirements whether or not covered by the Statement of Work, 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 Bid, attached hereto and incorporated herein as Exhibit "B" 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 Statement of Work 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 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 3 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 Statement of Work or price provided above will be made 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 4 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 Substitute W9 Form, attached hereto and incorporated herein as Exhibit "C" 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 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. 5 ARTICLE 5 PAYMENTS 5.1 For work completed by CONTRACTOR, as described in the Statement of Work, CITY agrees to pay CONTRACTOR the Contract Amount after the 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; or if a performance bond is present, CITY agrees to make payments to CONTRACTOR of the Contract Amount prior to the completion of all work described in the Statement of Work, in accordance with 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. Neither CITY nor CONTRACTOR will assign, sublet, or transfer any interest in this Agreement without the 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: 6 (1) Statement of Work (Exhibit "A"); (2) Bid (Exhibit "B"); and (3) Substitute W9 Form (Exhibit "C"). 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 Name Title Title 7 EXHIBIT "A" STATEMENT OF WORK Contractor Signature Bid Due Date: 1/24/2006 PROJECT TYPE: Minor Rehabilitation .co) a) 3r it RS o a X 'b (n cis 2 0 0 N c' O 0 cD Quantity Unit z ti ,4 v 0� 4 w a w Z <00 O F_ -J Z a (0 J COZ WZQ w0 <0 wZ �wQ 0 wZZ_ O 1•w- 1— W WZ WOWO WQ Qcn>I U tii c° c a) U c) r'' U 3 ,3 ` v Repair plumbing ca c E v) E • O E tea) Q 0) a) c > > N BATHROOM #1 BATHROOM ENTRY DOOR. o C ca) c Q a) 12 is, Q O O i w C C a) = al c c 0) c a) 1) as O O 0 0 O a -0 M ELECTRICAL w 2 O O a w m J J Q w 1-a w 0 W 0 O a Ctw as m (I) Zr) O c = 0. in U a) O O C > O•N O • C ._ C�1 X u� . U 0 a Q Q ct a) a3 ma)Ct ma) (75c CUa1` o w H 'cY Round Rock, TY 1709 H. Mesa Park Monday, December 05, 2005 • § . w a - o // k= w o o ƒ a k2 c >c a/ 0 L (13 O as0-a LE co .E w w W w F O } o &«3 o a) )7 a• -0 ru2 �/. 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Mesa Park Monday, December 05, 2005 w 1— w 0 wo 0® x �o zw co 32¥ 000 IW Y 2Uw -2w_ �Zk C bz <WZ° eyw wit - Y iJw <I-gp R%ƒ ƒu?/ o E 0a w2E - agco < .2) S m w w O (9 uƒ 00 a• ® O - t;-, /: < 00 ®-JI /wm E -c • $ �B0 , • a. f # O 0. §02/ 0 — 0 \ aI.0_ /%cam %3 0. 0 0c $�k0 20Fh ui d/k/ u § 0) E 11.< f k/ cT.f 0 0 U 2 < % /2 ƒ k q UTILITY ROOM #1 w 6 ¥ WATER HEATER SHUTOFF w c•I E-[ 0 Round Rock, TX 1709 NW: Mesa Park Monday, December 05, 2005 EXHIBIT "B" BID J Contractor Naine Bid Due Date: 1/24/2006 PROJECT TYPE: Minor Rehabilitation X y 4) s.. ec o a- X (U Rt p 9 co Rj 0 (0 C 0 Q w w 0) 0 Q M `- ,-- r O Q 0 O ill J Za O J 0 Z f-7- EJE sZ Q WX o Q0F. F. �wQ >w Q.0 �ti Z� CLQ «O >O .C- 0 Y 3 rn i) (1) c C 5 a) E (0) m Q a w •(a 3 a 3 0 02 cc O . 3 _L -c :c. o t6 c.) .... mac) .- f-.)) U E ( '�C 0E 'LI?(c�m _ C 6U X C 0z N ii_ a) n fl co• N C C o a > N BATHROOM#1 BANTI-1POOM ENTRY DOOR. (" ) 0) 0 0 Ce0 w J - J aw f' 0 0w o w cCI. Round Rock, TV 1709 W. 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Mesa Park 4 M LL J Q co FRONT ENTRY. c h w C • w C • L OS U00 a w U ;---` • c "N cis Q' y cU _c c0 U C rp O ii o 0 re -C w C a .0 CO La X - 04 W O a) L c U `.7- Q o CC CD U) cD C� a L a)- L 3 a) w x X on co N LL U (0 c w rn•X 0 0 - �wEE M Q 0 W N rt w 1- Z 0 c) FRONT BEDROOM Z, u) •o E w L oD a a3i O` - w 0 = 1150 4:14) w,_ o > a3 w = L a w to Z7QT3 Q cc 0) 41) .Y a ca c a) ° : 2 c w 3 E.x. w Q- O c =m.Ow3 o)-- c �` N o wv a u) rnu) co c co 2,0 w s- NLo O w C c20 a 3 �l a 4) om O-le aL X o CU w la) �awcaa)CC 00 O a CO r Round Rock, TX 1709 R. Mesa Park I— LLI 0x U0 Z WQ cn u O ZWm 00 Z Z cn Q> Z CC F— Ss. r O w Y Z O O 0? C) s2 UJ -J 0 n- Z Z • ~ H s2 UJ I— 11 zwz < o c�I- W } LJ Q Z O _! F- 1 < > F-- 0 UJ O < 0 0 C9a� WXQJZ °j c F— CO a. Cr LL 2 Y Z Q CO 0 c) WATER HEATER SHUTOFF 1 0 Q W Q a) w E •_ 3 m a) — L �° m c w U X 3 C 0 C — t _L w �_O 3 as a- co„ N L U m C (0 r .cd rn 0(U0 3 o as — m • a. a °' y "x 5 O c -- u. 2= E EE c L. fAL ci .X0 a Q • < c m y c0 C N' m U 1- E co M M C N A m E C ` U O Q O y :: Q cII f0 cp a..0 — CD r co C C C C 0 CD CDX E ca_ _ d m U C m _m CLL d m d co LT a .c m== Z Cr a coo m> m> 0 C h U m m VO> > O O U iz) NYQ -JM 0 O C O t, r U 'CI v• a 0 4,- oummE Uwvm �c_E�CDLL oLy 05 11.1 a we O �� ,...9 a) cnv3i >- 33 �N ca o` CO m I— Y e- r- ) N j r- N t N N Z 0 Net- tt 4 Round Rock, TY 17119 N', Mesa Park EXHIBIT "C" SUBSTITUTE W9 FORM Form W-9 (Rev. November 2005) Department of the Treasury Internal Revenue Service Request for Taxpayer Identification Number and Certification Name (as shown on your me tax return) 1 P)L�.n 4- 0-€540 -4 n Business name, if different from above S'}YrNe Give form to the requester. Do not send to the IRS. Check appropriate box; ❑ Individual/po Corporation 0 Partnership 0 Other ► Sole proprietor ❑Exempt from backup withholding Acidress (number, street, and apt. or suite no.) WOcri City, state, and ZIP code IA) vIV\S '?( List account numberjs) here (optional) Requester's nave and address (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 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 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 H Certification Social security number III+III or Employer Ide numbero1/ �b�Cl b1�131I© 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. 1 am not subject to backup withholding because: (a) 1 am exempt from backup withholding, or (b) 1 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 1 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 retum. 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 generalty, payments other than interest and dividends, you are not required to sign the Certification, but you must provide your correct TIN. (See the instructions on page 4.) Sign Here S. person Signature of U.S. pe ► Purpose of Form A person who is required to file an information return with the IRS, must obtain your correct taxpayer identification number (IN) 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 11N 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: Date ► A--(1 • 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. 10231X Form W-9 (Rev. 11-2005) EXHIBIT "D" REAL ESTATE LIEN NOTE REAL ESTATE LIEN NOTE (Minor Home Repair Program) Date: , 2006 Maker (whether one or more): JOSEPH AND MARION BARRESI Maker's Mailing Address (including county): 1709 W. Mesa Park Drive Round Rock, Texas 78664 Williamson County Payee: CITY OF ROUND ROCK, TEXAS 1. Place for Payment (including county): CITY OF ROUND ROCK Attn: Minor Home Repair 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: SEVEN THOUSAND SEVEN HUNDRED SIXTY-FOUR AND NO/100 DOLLARS ($7,764.00) 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 9 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 minor home repairs 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. 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. 00091678 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 and if necessary payable as stated in this Paragraph. 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 the Property is sold, leased or there is a transfer of title of the property, including transfer by contract for deed, within the five (5) years from the date of this Note, Maker shall repay the principal loan amount to Payee. If there is no sale, lease, or transfer of title of the Property within five (5) years from the date of this Note, the loan shall be forgiven. 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. 2 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. c. "Minor Home Repair 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 WELLS FARGO HOME MORTGAGE, INC. and/or MERS, INC., as nominee for WATERMARK FINANCIAL PARTNERS, INC. 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. 3 J. "Senior Lien Note(s)" means other Notes in the original principal amount of $115,710.00, of the 4th day of October 2001, and $117,262.00, of the 23rd day of May 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 or to be recorded in the real property records of Williamson County, Texas. 1. "Subordinate Security Instrument" means the instruments identified in Paragraph 7.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. 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. 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 Maker is in Default under this Note. 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 shall be in Default under this Note. 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 is a Default 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. iv. The Property or Maker is not Eligible under CDBG. The Maker is in default under this Note, if: 4 (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 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 Minor Home Repair 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. (3) v. 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' $115,532.00 and $117,262.00 Notes or in observance of any obligations or covenants of any instruments securing them, the debt evidenced by this $7,764.00 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 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. 5 vi. 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. vii. 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 Minor Home Repair 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 the Property Address above, or at a different address if Maker gives the Note Holder a notice of Maker's different address. 6 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 under the circumstances described in Paragraph 15, 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. dEP BARRESI Ofoc-c-crx_., awc." MARION BARRES ATTACHED EXHIBIT "A" - Legal Description of Property PLEASE RETURN TO: Sheets & Crossfield, P.C. 309 E. Main St. Round Rock, Texas 78664 8 EXHIBIT "A" Lot 3, Block "J", Mesa Park Section Two, a subdivision in Williamson County, Texas, according to the map or plat thereof recorded in Cabinet C, Slide 50, Plat Records of Williamson County, Texas. 9 EXHIBIT "E" DEED OF TRUST DEED OF TRUST (Minor Horne Repair 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: , 2006 Grantor (whether one or more): JOSEPH AND MARION BARRESI Grantor's Mailing Address (including county): 1709 W. Mesa Park Drive Round Rock, Texas 78664 Williamson County Trustee: Stephan L. Sheets Trustee's Mailing Address (including county): Stephan L. Sheets 309 East Main Round Rock, Texas 78664 Williamson County Beneficiary: City of Round Rock, Texas, a Texas corporation Beneficiary's Mailing Address (including county): City of Round Rock Attn: Minor Home Repair Program Manager 221 East Main Round Rock, Texas 78664 Williamson County Note(s) Date: Amount: $7,764.00 , 2006 Maker (whether one or more): JOSEPH AND MARION BARRESI 00091675 Payee: CITY OF ROUND ROCK, TEXAS, a Texas corporation 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 $115,532.00, of the 31St day of March 2003, executed by Grantor, payable to the order of WELLS FARGO HOME MORTGAGE, INC., 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; and The liens securing another note in the original principal amount of $117,262.00, of the 23rd day of May 2005, executed by Grantor, payable to the order of MERS, INC., as nominee for WATERMARK FINANCIAL PARTNERS, INC. (herein collectively referred to as, "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, which renews and extends the lien provided above executed on the 31st day of March 2003. 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 2005, 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. 2 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. 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 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 3 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 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 4 (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) grant of a leasehold interest of three years or less without an option to purchase; (e) transfer to a spouse or children of Grantor or between co-Grantors; (0 transfer to a relative of Grantor on Grantor's death; and (g) 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 7. Leases are not assigned. Grantor 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 7 without taking possession of the Property. Beneficiary shall apply all rent and other income and receipts collected under this paragraph 7 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 7, and acting under this paragraph 7 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 appoint of a receiver under Texas law. 5 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 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. 6 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. GRANTOR: 1SEPeA'RRESI • (Je�-c.-cfe MARION BARB I ATTACHED EXHIBIT "A" - Legal Description of Property ACKNOWLEDGMENT STATE OF TEXAS COUNTY OF WILLIAMSON This instrument was acknowledged before me on this the 23 day of 2006 by Joseph Barresi. MARGARITA B. LOPEZ MY COMMISSION EXPIRES March 6, 2007 1 `Max.qaxc_. kt)iit Notary Public, State of Texas 7 ACKNOWLEDGMENT STATE OF TEXAS COUNTY OF WILLIAMSON al/eat/RV This instrument was acknowledged before me on this the 23 day of 2006 by Marion Barresi. MARGARITA B. LOPEZ MY COMMISSION EXPIRES March 6, 2007 PLEASE RETURN TO: LIVL akaCt e • AZI,5 Notary Public, State of Texas City of Round Rock Attn: Minor Home Repair Program Manager 221 East Main 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 3, Block "J", Mesa Park Section Two, a subdivision in Williamson County, Texas, according to the map or plat thereof recorded in Cabinet C, Slide 50, Plat Records of Williamson County, Texas. 9 COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) - COMMUNITY HOUSING REPAIR PROGRAM CONTRACTOR AGREEMENT This CDBG Community Housing Repair Program Contractor Agreement (Agreement), is made this day of , 2006, 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 77317 ("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 3, Block "J", Mesa Park Section Two, a subdivision in Williamson County, Texas, according to the map or plat thereof recorded in Cabinet C, Slide 50, Plat Records of Williamson County, Texas, also known as 1709 W. Mesa Park Drive, Round Rock, Texas, as specified in the Statement of Work, 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 $7,764.00 ("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 Statement of Work after it 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. If CONTRACTOR is requesting payments of the Contract Amount prior to the completion of all work described in the Statement of Work, CONTRACTOR will submit a performance bond to CITY as part of this Agreement. CITY will pay CONTRACTOR for work in accordance with CITY'S Prompt Payment Policy, as defined in the City of Round Rock Minor Home Repair Program Policies and Procedures. 1.3 CONTRACTOR will not deviate from the work described in the Statement of Work without a change order from CITY. Any such change order will be included in an amendment to this 00096169 EXHIBIT II BII Agreement. The Contract Amount and any change orders will not exceed a total of $15,000.00. 1.4 All work specified in the Statement of Work will be satisfactorily completed within ninety (90) days from the date of the Notice to Proceed. 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 Statement of Work, CONTRACTOR will not receive funding for any work that is found to be improperly performed or incomplete. 2.3 CONTRACTOR understands that a performance bond is required as part of this Agreement if CONTRACTOR is requesting payments of the Contract Amount prior to the completion of all work described in the Statement of Work. 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 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 2 codes and requirements whether or not covered by the Statement of Work, 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 Bid, attached hereto and incorporated herein as Exhibit "B" 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 Statement of Work 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 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 3 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 Statement of Work or price provided above will be made 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 4 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 Substitute W9 Form, attached hereto and incorporated herein as Exhibit "C" 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 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. 5 ARTICLE 5 PAYMENTS 5.1 For work completed by CONTRACTOR, as described in the Statement of Work, CITY agrees to pay CONTRACTOR the Contract Amount after the 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; or if a performance bond is present, CITY agrees to make payments to CONTRACTOR of the Contract Amount prior to the completion of all work described in the Statement of Work, in accordance with 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. Neither CITY nor CONTRACTOR will assign, sublet, or transfer any interest in this Agreement without the 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 maybe 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: 6 (1) Statement of Work (Exhibit "A"); (2) Bid (Exhibit "B"); and (3) Substitute W9 Form (Exhibit "C"). 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 41(\e� Name Name Title Title 7 EXHIBIT "A" STATEMENT OF WORK Contractor Naine Contractor Signature Bid Due Date: 1/24/2006 PROJECT TYPE: Minor Rehabilitation \ CD 9 co co F\ q W Quantity Unit : ( R 0 � w 0 ¥ w 3 1— U o w< 2 za. 0 W -k &ƒ e w g wz �w< 0-a 2�z/ wZ WOWO a« an>i Repair plumbing BATHROOM #1 w m a BATHROOM ENTRY DOOR. w q % 2 0 0 0 w CO -Jk H U� w U c w 0_ CI_ n ELECT EXTERIOR Round Rock, TX 1709 H. Mesa Park Monday, December 05, 2005 Q w N Q w Q w Q Q N FRONT ENTRY GARAGE (1), REAR (1) a w M m ti 0 o w F_ -co QLL 0 m Qo 0 ow jz =W QO W ~O= az QJQ a. cmc �cci E rn w o ca _ •.:-. u) a) E -ac) ai 0 co o ° .c (o N To 03a) 0)0.2 v)�j .3NC cn m=(n 0 33 a) dc`:)' X C_ s a L a w (v a N Q c a) c a) m .E a) .o 5 O co U o a) m O m> (0 N V N E° Uoes O X (c= o c U +• c c 1. ;1(5,LL O O .cN a) (6 N w - a) d i .0 o w c Y >O co U a) 2 o 3 d D a ca IX C ID U O °P 0 �o a•: a)L 213 0)E O >(v ca)d0 ccw 0-V a)a)c o., 0 co 3 2 ° aci(1)(3i x>a WU�0 ui 0 11) u) D '- s. n> X.. y wO 0LL N m Q)O a) a) ti c 0-- wm ��t - 5�: c(O. ix �(r-°i (dac%()) CD002) a—..)3� °�3U)na—�,) cE oo v°, O mN� >.mo a aa)a) (o 2 mcg 0I— c 3 ti 3 3 0c 3 O c o.o a. o rtto2 ca. W I- W (L) (G ti CD Q) �O A Round Rock, TX 1709 W. Mesa Park Monday, December 05, 2005 \ Lr) FRONT ENTRY. » o 220 2ƒ E=\ §f « / C a • Cl) �� • 7 °° 2 2 k $ \ o a= a)c c_c% 2 32m 770) --a. k CD E Mai R. QJ§ Ce G% a"krco qc)O f %b 3 S@° it c 2 cc 2222 2#§2 2�$f% q\E2 U.1 g 0 X VI LIJ - CSI % 2 w w 6 ¥ u_ m e / a FRONT BEDROOM /• k{k5_ $ a) J 2@ a c •kkk§/kE. -0k�\ƒ2 @• 2 /ci U cCD .i_ 0=0c 2 2 a o 2 mot o = (0 0).- 2 / m c 6 .=a 20 ink% 222Q)% § 3 >— — @ @ o x o O -8.:,-.._ ¥ A O o% e DU 3 § R eL � �)�/k �/E 2 Q V) CLL k«7 tu \ Z it) co Round Rock, TX 1709 W. Mesa Park Monday, December 05, 2005 w 1— \/ Lu 0O� X 00 u_O ZwCI m 00 ZCC WZ6 a0O Q-ci) UF'Q WUU OZ YW-J SZS1--: LL ilri CCI— 0Q-)0 OJ W} W F CC Z O J =Qw <I—COQ 1-- J ll.l 1 -=canes orEti.IY ? cn ZCC) 0 0 M -a a) E co co U t m a),C 3 N 2.2 C 0 t = o ca X — N m L o c 5 a — —;Q>O 0cO Xc w- u- C- O a:v0 aV Q ri� _LO E Fs c m xa) �m aa)� U m o a w� �Em -CI maw �, E ,r, a a� 0 a � o a, O a) a) a) c u_ al a) L a) -C Z . cC ,= a aj O O y o >-. m vi 0_ c U-0 :tr.' � a J u -U 0 c ui 0 5 LL m 0 u_ m °� m ma)u) m E �C� � LL U V W N a) ±--• :le_ W .�m0 (.) -2)o i o �a3io� 33 0 f- 'OR n. ao rn o Y r u) r e- UTILITY ROOM #1 WATER HEATER SHUTOFF 3 a) a)co C co Round Rock, TX 1709 W: Mesa Park Monday, December 05, 2005 EXHIBIT "B" BID Contractor Naine Contractor Signature Bid Due Date: 1/24/2006 PROJECT TYPE: Minor Rehabilitation a? RS a a X ti o) 2c1)o cet 1° ( a 01 c (p CtS 0 0 (0 rN.. r C Quantity Unit S. V w S w cri — O a /- 0 11 za O J O u- Z Q f--- � O LLIZ �WQ U wZz w - Lij CL O 2 LL z J LU Z CC a a �O > O= s o 7Li 3 rn co _c C 23 a� E r II a 3 m Ev U 2 = _ "V Y u) ( c "- U ac Z 3 m N -2�c o E) �Q =o a` lye cm68 c E ._t C U >0 > 'd N BATHROOM #1 Lu c`i co BAT1"POOM ENTRY DOOR. ri VJ 0 0 O W J J a� 0 wU W CL.s ttC 4 Round Rock, TX 1709 if: Mesa Park a7 w f) Q w r Q w 0 W M Q w r-- N Q w Cr- ru_r^ vl Q Q CO c0 0 0 (V) r r- M crj r: FRONT ENTRY GARAGE (1), REAR (1) O o F- W 1- W 0 Z0m QO CC w -i Z =w Q� o 2 w Q o Q0 -Ji az ww- w= CC a �U) o E rn con -m Z>.' 42 co G) tcc o sE -' O 3 cn o)oY x o N U) CO E c� a_ •ii) 3Eo c03 -a-) wocNo ` o cn a) U-0 = U o D v >, c E �. • ca s E �'��o co s� N mace ) �cj ='3 oco� o Amo > c° 2 0 �' E o Vas cU.' - x c a N a• v m -G. o i- «s .. •C lL O` m 0 0 c 00. a......2to a� • 550ai .n oLm • Lr > > u) o x `. 0° 0Ca • Oai- �� mmxCI c ��`�m 'd -Y oa�o0 j2La _c ca oa.00a o. mm4E .2) :15 04- _3 U OC c E E N Q •C V N G ` (� a) a) C d ` E 0 tel 0.. `� °o w m cu- o Q,,,U.• o ai c'a� N a) o a 0 0 m cr a -o CO o c o0ea ya)0 X>o. oc X� (1)CC 1,1cn c is - c6 ��• aa �jioof j�a� IL °'O m� o,�axiv i et vi •c O m �� a@i Q3 N c a a��i 3 m mO :15 a� a� E '»c'- 0 0 •vi c >, (D =00 Daoa (E oOOma Ti m� OF -co u. 3'3 Oc3 Oco, a.00 ccc`a2a c W X t z W cn to p r �c ✓ i Round Rock, TV 1709 WMesa Park 0 w w ca FRONT ENTRY. w rn cei Q x VO 0 w r N - ce 0w F - z w r) Al) LL (0 0 co FRONT BEDROOM a) C o .0 CO -- 0. a C4 u) c 0) n- O '0 ) CO • 0) N X a) 0 a) C 3 a O W C 0 0) c-65 (0 z w U r - Y Round Rock, rx 1709 W. Mesa Park Monday, December 05, 2005 v R W r' M 3— s- 0 - W ca 0 ai W 0 I- dZ 0 H� u.0 zwm 00 z x F- LU Z (4 'WZ(4 000 a. u) 0I-< WU0 OZ a❑ cn YW _) iz - t�W W W z Q W Z O J I— =• QW QIJO �O❑ 0a d' WXOz �J= I=cna ccu_=Y ?<U) o a m E OS C T.') a) .0 c� f2 • C L- w •3 o C U - L w mV . 30 c N - +to {] C � it o) ocaU ts.�'o 0) o,- E �= :FA `�� o Q n• N 'x a)a)4... r'E F6 X s E ca �CL� Q CDT E 0m a fl...; 0 d L co a) C7 0 mm°�u_ tea) L a) 'c Z 0 o Q a) O U U a) >, C] to 0 o C Yuia Xc WUO U� � �v, m �E 3g 0P6 .-5.F.,z m0CE 3v°LLw� JoOco.o Cl)33V 1- Y Y co ?) o N UTILITY ROOM #1 0 cri WATER HEATER SHUTOFF 3 m a) O C a) C = L N C ca Ci C- i 3 = rn (• EayC . M`') C a) - a) w 19 76 a 03 ca Q C C a1 2 a i > 0 C p U w 1- od coI I E .0 .: c mow.F- 3 vi0 o E- 0 0 Round Rock, TV 1709 14', Mesa Park Monday, December 05, 2005 EXHIBIT "C" SUBSTITUTE W9 FORM Form W -9 (Rev. November 2005) Department of the Treasury Internal Revenue Service N a Request for Taxpayer Identification Number and Certification Give form to the requester. Do not send to the IRS. Name (as shown on youricpme tax return)01\ fre4(R;- Business name, ifdifferentfrom above ,ms QeS40 r ❑ IndividuaV Check appropriate box: Sole proprietorA Cor poration 0 Partnership 0 Other ► ❑.Exempt from backup withholding res A`s (number, street, and apt. or suite no.) t I Uo CI -r -e ' Dr City, state, and ZIP code 1/0\T?C account number(s) here (optional) Requester's name and address (optional) Part 1 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 1 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 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 '71377317: ecurity 1 11 or 56347177317/ 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. 1 am not subject to backup withholding because: (a) 1 am exempt from backup withholding, or (b) 1 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 1 am no longer subject to backup withholding, and 3. 1 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 retum. 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 TIN. (See the instructions on page 4.) Sign Here Signature of U.S..S. person ► Purpose 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: Date le - a-J04-yl0b • 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 X Form W-9 (Rev. 11-2005) DATE: April 6, 2006, 2006 SUBJECT: City Council Meeting - April 13, 2006 ITEM: *10.E.4. Consider a resolution authorizing the Mayor to execute a Community Development Block Grant - Community Housing Repair Program Homeowner Agreement with Joseph Barresi and Marion Barresi, and a Community Development Block Grant - Community Housing Repair Program Contractor Agreement with All Tex Building & Restoration, Inc. for the minor rehabilitation of Lot 3, Block J, Mesa Park Section 2, also known as 1709 Mesa Park Drive West. Department: Planning Staff Person: Mona Ryan, Community Development Coordinator Justification: This property requires upgrades and repairs to bring it to minimum code standards. Funding: Cost: Source of funds: $7,764.00 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 is to replace a broken HVAC unit, construct a wheelchair ramp, and replace windows. The applicants are elderly and one is disabled. This house was built in 1979. Public Comment: All public notice and hearing requirements throughout the development of the action plan have been complied with by the City and the US Department of Housing and Urban Development and are available for review. EXECUTED DOCUMENTS FOLLOW COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) - COMMUNITY HOUSING REPAIR PROGRAM HOMEOWNER AGREEMENT This CDBG Community Housing Repair Program Homeowner Agreement ("Agreement"), is made this 13 day of "pad, 2006, between the City of Round Rock, Texas, 221 East Main Street, Round Rock, Texas ("CITY"), and Joseph Barresi and Marion Barresi, 1709 W. Mesa Park Drive, Round Rock, Texas, 78664, (collectively, "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 3, Block "J", Mesa Park Section Two, a subdivision in Williamson County, Texas, according to the map or plat thereof recorded in Cabinet C, Slide 50, Plat Records of Williamson County, Texas, also known as 1709 W. Mesa Park Drive, as specified in the Statement of Work, 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, 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"), $7,764.00 ("Contract Price") for labor, materials and equipment utilized in the rehabilitation of HOMEOWNER's above -referenced property, as specified in the Statement of Work. 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 $15,000.00. 1.3 The loan awarded is forgivable provided the terms of this Agreement are met. 00091422 R-04,-041-13-1064 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". Should the residence be sold prior to the expiration of the five (5) years, CITY will be reimbursed the full amount of the award, $7,764.00, as per the requirements of the Real Estate Lien Note. 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 Minor Home Repair 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. 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 2 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 Statement of Work 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. 3.10 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 maybe subject to release under this Act. 3 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. 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. 4 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: Statement of Work (Exhibit "A") HUD Section 8 Income Limits (Exhibit "B") Contractor's Agreement (Exhibit "C") Real Estate Lien Note (Exhibit "D") Deed of Trust (Exhibit "E") This Agreement is effective as of the date first written above. HOMEOWNER: CITY: Ci �fR /2 all to rL. Josepi Barresi r)1. Marion Barresi Title akial(2)1\--1 5 EXHIBIT "A" STATEMENT OF WORK Contractor Name Contractor Signature Bid Due Date: 1/24/2006 PROJECT TYPE: Minor Rehabilitation it et Y (a o Cl- X ti o) N _- c) as 2 p co CI 0 0 (0 Quantity Unit w w 2 1 <0 0wQ z_Q. 0 J 0 F- wZQ w 1-" U Li, w< 0- jZz Q w - d0 2Lj_z_wi wz WOWO CCQ Etv)>2 Repair plumbing BATHROOM #1 w N BATHROOM ENTRY DOOR. (o ELECTRICAL w N 0 0 0 w J J Q L u• — 0 0O w U Oc w as O G) Q) O C •- 0. n v w •- a) p UC > N - 5 N(0 x w LL o c (6 Q Q ate.. O (6 (13 m O N N LO a) C a O 0 00 o o w 1- w Round Rock, TV 1709 W: Mesa Park Monday, December 05, 2005 § ( w q w / w w w q / 0 nm ¥ a „ w FRONT ENTRY O W LU • �?' W Z 0D 0 03 CC ow -J2 U¥ aQ LU 3k ub / <6' $ wQ- ao w « —IT &� % ƒm� ƒƒ § E� a) ••-: .$ £\ = 2 c k- 2 2 f 2 k o To _c O o 00 72c ± 2=0 �% &mR aE$ c» oR @ o� o > # @ G = 7. = \ 2 0 = ' p ..z, ,a5 �S� —__ o2 5o2 0 §-0$ 9 c a� o /.c e u o@ 0 0 o m 2 > 3 2 0 E 8 7 Q = x .c m Ti © on \ C g ® • L E j 0 %.c m �t �� « 77�¥ @—� ƒ� De bg xg£/ ":�/ > \ CL 0 a 2 0 / % © C 2 f % c0:1) 3fgk ��� _oE %�2� @g$E §2 am 22 �� ccuE U%cu_ ' \��� ClR /k4§�22 0i- ��\O a�E@ » O o E� § G d° o c % 0\ k/ Q 22�� Q_@o X>0. O O o2 fox LT_ (13 0 • 0>, wcp �/ 2%k/ �° -en • @ V) 2 — 5 E- o 0//. 2>, 0 0 q f f 5 2§ S a o= c o 0 k 0 m_s 2 U w c 2 c k k O c R O c c. o a o c.t m 2 a w R X in CO 1••••03 0 _ ƒ Round Rock, TV 1709 W: Mesa Park Monday, December 05, 2005 Quantity Unit LL FRONT ENTRY. a 3 0 o C "D Ira - U � NO C c c E° (1) c o o 0 'C O L ca 0 en 0 07s E c O (9 03 o • f L C (n o v a) U O 0 a c �3scco w W n- a w N Y 1 C > L- Q) na P O � 7 ° D 0 o V a cn c m>.n a CU CI) II o C1) c F- �- 'Xw CNx- E 4) c U W -a CT a) u Lu ct O U U a'- .S > V 2 xaa 0 C) FRONT BEDROOM L O D a a) O c ..o O j Q 3 0— 0 0 a) Q) .O -0 a 'O d. m a) O m - Y d L 0 C O E_'c�aa)03 ) ao a (n U c ::-1 ov z aim m 3 c.3 0.: �v`o v)_)cn U c0 u) o N 07 N L CBL �•X a) a Q,€ 6 a) a CD 5�k O (o a) O VIX X - - Q ccuL O U)L '5 W Er x — co r Y Round Rock, TV 1709 PV Mesa Park Monday, December 05, 2005 .. ) w w w / w 0 STORAGE BUILDING 6 a ¥ WATER HEATER SHUTOFF 0 E =%k $ k� k m ■ E - 2 \ 7 0 % co k 2 4.7 k � ƒ k 2 @ °moo a �o 2- m 0 6[ R c �22k E E@ m% /cat <• «e c. x §m3�fE R9 -2f « o% x@ 7@ 2± a@ \EQ 3- \0 :§ « U a CL .- @ a ƒ ° ° c u_ L. > L_ > O .c ���3 /w G_ c O- t// /� O u . ® c � ® % ƒ k �E 70£/ \. 0== E 2 u� R baa k2 d§k� ƒ\ >- �\ kf 'ILIT 0 Round Rock, TV 1709 W. Mesa Park Monday, December 05, 2005 EXHIBIT "B" INCOME LIMITS MAXIMUM INCOME CHART Household Size Maximum Income (80% of the Area Median) 1 person $39,800 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 11, 2005 EXHIBIT "C" CONTRACTOR'S AGREEMENT COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) - COMMUNITY HOUSING REPAIR PROGRAM CONTRACTOR AGREEMENT This CDBG Community Housing Repair Program Contractor Agreement (Agreement), is made this day of , 2006, 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 77317 ("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 3, Block "J", Mesa Park Section Two, a subdivision in Williamson County, Texas, according to the map or plat thereof recorded in Cabinet C, Slide 50, Plat Records of Williamson County, Texas, also known as 1709 W. Mesa Park Drive, Round Rock, Texas, as specified in the Statement of Work, 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 $7,764.00 ("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 Statement of Work after it 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. If CONTRACTOR is requesting payments of the Contract Amount prior to the completion of all work described in the Statement of Work, CONTRACTOR will submit a performance bond to CITY as part of this Agreement. CITY will pay CONTRACTOR for work in accordance with CITY'S Prompt Payment Policy, as defined in the City of Round Rock Minor Horne Repair Program Policies and Procedures. 1.3 CONTRACTOR will not deviate from the work described in the Statement of Work without a change order from CITY. Any such change order will be included in an amendment to this 00096169 Agreement. The Contract Amount and any change orders will not exceed a total of $15,000.00. 1.4 All work specified in the Statement of Work will be satisfactorily completed within ninety (90) days from the date of the Notice to Proceed. 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 Statement of Work, CONTRACTOR will not receive funding for any work that is found to be improperly performed or incomplete. 2.3 CONTRACTOR understands that a performance bond is required as part of this Agreement if CONTRACTOR is requesting payments of the Contract Amount prior to the completion of all work described in the Statement of Work. 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 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 2 codes and requirements whether or not covered by the Statement of Work, 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 Bid, attached hereto and incorporated herein as Exhibit "B" 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 Statement of Work 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 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 3 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, attomey'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 Statement of Work or price provided above will be made 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 4 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 Substitute W9 Form, attached hereto and incorporated herein as Exhibit "C" 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 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. 5 ARTICLE 5 PAYMENTS 5.1 For work completed by CONTRACTOR, as described in the Statement of Work, CITY agrees to pay CONTRACTOR the Contract Amount after the 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; or if a performance bond is present, CITY agrees to make payments to CONTRACTOR of the Contract Amount prior to the completion of all work described in the Statement of Work, in accordance with 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. Neither CITY nor CONTRACTOR will assign, sublet, or transfer any interest in this Agreement without the 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 maybe 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: 6 Statement of Work (Exhibit "A"); Bid (Exhibit "B"); and Substitute W9 Form (Exhibit "C"). 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 tAA-4°-\02-,' 6(VN)kA Name Name Pri&rd Title Title 7 EXHIBIT "A" STATEMENT OF WORK WorkWrite-Up and Bid Document Contractor Name Contractor Signature Bid Due Date: 1/24/2006 PROJECT TYPE: Minor Rehabilitation co) go o k n r 173 L) o § o Ol 2 k -0 4 (Ni 2CU� o e £ 0 co Quantity Unit z : § n w w cri 0 / Zepair pl BATHROOM #1 w 3 BATHROOM ENTRY DOOR. w q ƒ c m ID f 5 E± 0. /0_ /da) e ate 2 G » o o c n >oa 7ƒ ��L c $ / a) 0 LL o W k / CL CO .65. / 2 <ce2 E0) ƒCa 0E §/£ 00 k -e/£ 0 0 2 k 2 aI. 0 02 /Qa2JD 2 w R c w #w :LE Round Rock, TX 1709 W. Mesa Park Monday, December 05, 2005 § § w q w w a w (0. a FRONT ENTRY w $ 2 GARAGE (1), REAR (1) O w bƒ <Li / m 22 o f -J2 U¥ -I0 CD 2 Lu m •1 0 0 ww< b5E om3> or u) § Ee E/ F$ >, co /- k �_ § f 2 E /�}2 00 �k '®� CO /Dn m ® & @� E ° \ � o R ± o CO CO o\ CD= 2 & 2 k° 2 f 3 a k o - f 2 o. 5 2 0 _$ , c 4: ° /: o O o m o o ma) 2 �Q �2f 2E(3 7g -h � :moo / k CDs/ -S3 ®a k0o.§- ƒ£q 3 0 e g q x e 0- a C m/ 45 o k c 0 CD/ 0 0 8%*° § 2ƒ% c ± O o .c 0 'r � . Q) O CL JD CL ƒ ƒ .-• g § / C c2 Uk k oE0 CL R / k § /• k • 5 @ \ CO c Q m c 7� C w o 2 0° o c (1) 2/ / c 5ƒ�§ wo0 x>.L0®0 0c pox EL: (13 q ��w22ƒ f ��k/ jE CC4 Lt -NZ - a m cp Q m 2 n Q 3 E o 2 / ->,$ S ? f f 3 2 5$ S % o / /� CO a O w c o E k 0 c R O c c. o a o rt 70 2 k w w X - Round Rock, TV 1709 W. Mesa Park Monday, December 05, 2005 2 L -J v- (.15 c FRONT ENTRY. w 9 O » o «o 2\ -o a-, Q) c k as Q) 2 a—co c 2 w 4) E 0 / § 0 2 0a-0 COc2 §003 71_ .0 U co Ct a 2) �/\ o= @ a ' o ® /J( $�0• me • Is® o),- -- a) § r k(D R- 15 o c o LL c 2- a m m -o 0722 w goo 2 s k 2 I 0 a) E E X $cei U w C • 0 1) :a/ to �R D c ƒ<w3 » < co o i, o o: w c%4m -5z w� § wiwct- E EZ2 � LI 2 2@m2 Lu c, < E\� ƒ0_ 0 w w z w 0 % FRONT BEDROOM \ / Round Rock, TX 1709 If. Mesa Park Monday, December 05, 2005 w r w O U1_ Z LLO Z v) o LU I -Q Y J F- _ c w H(aiicea a) C U • ,C co Y L • Y • L o X a) C. a) -0 U E • o w c _c a.) (n C. N N • U ▪ tco „.9 C STORAGE BUILDING �w UO O F• w-X <>z �H a(/) F0 ZOOpH OZ a0 U fn =ZZW � u. QUJ ZO JF- <I-JOO X00 wXOZ 1_j_ CC y 0 0 Q WATER HEATER SHUTOFF E L a) vi 2...)te3 a) co .c as a) c a) 3 o c 0 c = c c 5o3 co ;a) z6v a) B. C c3 3 fA C o CD U rnU 0_ a a- s c' wo5 E Eco cn'n U c O U E OM (` C (0 U X a) W .U. d N U N O C. LO +� (U C co(L-0— co�T CO a c U CL i- 2fa. CU a c LL L 0 ._ a) 0 c CewoO a)> a)> C C. a) p ov r. >O OU cLv 0 o c O -o 4t O -o CD73 (0f oi .c= O ss L c OCo.o u3)v3) >- U3)v3) 5To ILII co a) o F- T N N N a LO a es Round Rock, TX 1709 W: Mesa Park Monday, December 05, 2005 EXHIBIT "B" BID CJ• Contractor Name Bid Due Date: 1/24/2006 PROJECT TYPE: Minor Rehabilitation O(13 ti to . ; 0) c2 p co ct 0 cD fV 0 00 U Q w 0 ri r F- S Z 1- x 6 wz w -- wz ¢ r 0 :°3 N N C a) U 5 3 (3 � otf w = L :x U 3 co 0 c a)C� X CN it a, a 2) aO c o w I Q wQ Zoa J Z z W Q < 0 C_ W W Q z 2 ZJ WOWO co >= w N m (0 BATI'ROOM ENTRY DOOR. w N 0 0 0 W CO J -J ~ 0 0 wU O Q_ as o` 6 aa) m c ._. t 0)O .0 NC = a a 'a tD O 0 C i 12 > 0) 03 a, I- c O C 5 r,c --cXLL CC o 0 '1 2.. C = lL U cr ac w— U a Q a a) a ca EC Ce m 3 rnE ra Qpm �• U -C Y a) E a) N C cti � a e- *t aw "a3 ii CO • 0o J m°'a1a? c Q O C O O O` (▪ j U -.IX cp C > > 0 Ov tom- UQOs`�� V Q w N CO M W W ▪ Tr Round Rock, TV 1709 W. Mesa Park Ov ce X W N w w a w c., v �Q Q Q CV Q co a 60 r T- 6 FRONT ENTRY GARAGE (1), REAR (1) Q w M O 0 F-- w 1.- w (7 . Zm <0 Ocr 0 C 0w �Z U2 ww IQ -:• O W I - OJ �° J Z WW- WI CC CO Cr U) LE a) L O m 0) _ u) — c c - 0 w .. m m °J -c c(0 0 v in 0 0 3 co 0) 0 '- ..... x v, °� y F N•-' Qa`� c 3 cW 3 N c 0 (0 Z N cc °>N a)�-a °°a a moo`° �o n8•5 _c .E °o �"v o c0�. p m aci �° L c o CO 0 o ° .;% to o > 0 0 N E o Uco a)— m;" cm ° c, a)0 Q. 13 o coL ajjr. C0°� x ir-mv i o 0- °Cr ..� U) - a� V)0 ai .o 0- 3 o0 LL m o'er m N �co i 0 0 c 0 0 0 0 0 4 a) v. > m m >, a) — 0 m X a) = l6 .� C c 000ai O=m oN on n°n m am`' > m U� oa 0 L t- a)V Cl. �coF ED. () ��, 4)ris c C L C) a) Q] c LL d L a O 4, 3 m no c X �0 00 ,zr-a0 m CO rn0 0 O c 1,c,';ymP .'›L Uo°C vo o m �� 0 m ° x> a tLUO xw c..U) c L7.: c • nom` ti! mai j� a� 0u.m c o xL. re v :v � co ai 0 rn w a) ` Y m C7 .0-52 w a3 c t"p a) 0 coc� ma�o m j jVi 3 c 000-- 0 W OF-cv LL33 Oc3 Oco.o a0 CCio•aa Q W in 1,0 N. ao w o ... a •" rt Round Rock, TV 1709 W; Mesa Park / 0 re w W k w Q M -J LO « 6 FRONT ENTRY. 0 c – ffm c ca.: Rig @ ckc o c3 0.— o co cok kk0E q//3 m 01-4 C ID k CN1 « w A m .$ OD 4To 2 § / 2C 0�2 k 0) o / /4 kkEo ) co �- £ a / 2 0 - 0. 0 0 7 � w E D 4 w LL m m -25 -0 CD a ° � R 2 0 o ƒ<w ca k� a o II o )cw– tX To" <© - W §E cc coal\ Saw -o wƒ®0 <Ef > 0 ru IQ_ f, o > � FRONT BEDROOM CO Round Rock, Ty 1709 R. Mesa Park Monday, December 05, 2005 a w M 3- 11.1 w 0 w Ci Q w WATER HEATER SHUTOFF � m E c 2 ii.r ro 0 c= w 3 c o c X-.-03 as — G O CD 0 01 j X _ +11 UV 22 = a ci ; a): N ZO E f0N i n L .1:6 0 a 2 Q fl < 0 C.1 C X' N o�O.0 E OM Q a a) C N O N X O m CU LrEco co Sana � R 0...: 0 a ;L- a) a U C :7 O o c LL ` w a m ? to 0 >o > G) > 0 G) A C] o a 0 O U > O (/) o. J O vi U o C T o V vwm m i -a) ��a)0 °�2 cca °� m ;-15ui .c O Z cow E 3 (q --.5o i .0 O y., U 0 n' to N F' ti �Oix, J N Q T mom) cco —.c C [0 3 C u)+. C C CX) a o c m 0 c CO CO E co Q E- 0 E - Round Rock, TX 1709 14; Mesa Park EXHIBIT "C" SUBSTITUTE W9 FORM For, W-9 (Rev. November 2005) Departnent of the Tri Internal Revenue Service Request for Taxpayer Identification Number and Certification Give form to the requester. Do not send to the IRS. Print or type I See Specific Instructions on page 2. Name (as shown on your,:licRrne tax team) PM Tor( PL Auticiin5 6- Qe1,40 C v n Business name, if different from above S Check appropriate IndividuaV Partnership Other b.withholding in box: Sole proprietor _j • . Exempt from backup cess (nu ber, street, and apt or suite no.) �'1(t w ci-�e )r Requester's name and address (optional) City, state, and ZIP code 1N iIA kS 7) �) c List account numbet(s) here (optional) axpayer 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 entities, it is your employer identification number (EIN). 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 II Certification Social security number 11+1+111 or 3I6711177317/ l© 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. 1 am not subject to backup withholding because: (a) 1 am exempt from backup withholding, or (b) 1 have not been notified by the Internal Revenue Service (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 withholding, and 3. I am a U.S. person (including a U.S. resident alien). Certification instructions. You must cross out Rem 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, 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 TIN. (See the instructions on page 4.) Sign Here Signature of pe U.S..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 11N 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: Date ► A) -Li 0G • 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. 10231X Form W-9 (Rev. 11-2005) EXHIBIT "D" REAL ESTATE LIEN NOTE REAL ESTATE LIEN NOTE (Minor Horne Repair Program) Date: , 2006 Maker (whether one or more): JOSEPH AND MARION BARRESI Maker's Mailing Address (including county): 1709 W. Mesa Park Drive Round Rock, Texas 78664 Williamson County Payee: CITY OF ROUND ROCK, TEXAS 1. Place for Payment (including county): CITY OF ROUND ROCK Attn: Minor Home Repair 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: SEVEN THOUSAND SEVEN HUNDRED SIXTY-FOUR AND NO/100 DOLLARS ($7,764.00) 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 9 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 minor home repairs 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. 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. 00091678 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 and if necessary payable as stated in this Paragraph. 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 the Property is sold, leased or there is a transfer of title of the property, including transfer by contract for deed, within the five (5) years from the date of this Note, Maker shall repay the principal loan amount to Payee. If there is no sale, lease, or transfer of title of the Property within five (5) years from the date of this Note, the loan shall be forgiven. 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. 2 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. c. "Minor Home Repair 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 WELLS FARGO HOME MORTGAGE, INC. and/or MERS, INC., as nominee for WATERMARK FINANCIAL PARTNERS, INC. 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. 3 J• "Senior Lien Note(s)" means other Notes in the original principal amount of $115,710.00, of the 4th day of October 2001, and $117,262.00, of the 23`d day of May 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 or to be recorded in the real property records of Williamson County, Texas. 1. "Subordinate Security Instrument" means the instruments identified in Paragraph 7.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. 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. 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 Maker is in Default under this Note. 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 shall be in Default under this Note. 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 is a Default 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. iv. The Property or Maker is not Eligible under CDBG. The Maker is in default under this Note, if: 4 (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 Minor Home Repair 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. v. 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' $115,532.00 and $117,262.00 Notes or in observance of any obligations or covenants of any instruments securing them, the debt evidenced by this $7,764.00 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 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. 5 vi. 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. vii. 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 Minor Home Repair 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 the Property Address above, or at a different address if Maker gives the Note Holder a notice of Maker's different address. 6 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 detennined by the Note Holder, for preparation and recordation of the release under the circumstances described in Paragraph 15, 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. dEPBARRESI 62 I'Ve)(--trt--• Se4,t-c_e° MARION BARRE ATTACHED EXHIBIT "A" - Legal Description of Property PLEASE RETURN TO: Sheets & Crossfield, P.C. 309 E. Main St. Round Rock, Texas 78664 8 EXHIBIT "A" Lot 3, Block "J", Mesa Park Section Two, a subdivision in Williamson County, Texas, according to the map or plat thereof recorded in Cabinet C, Slide 50, Plat Records of Williamson County, Texas. 9 EXHIBIT "E" DEED OF TRUST DEED OF TRUST (Minor Home Repair 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: , 2006 Grantor (whether one or more): JOSEPH AND MARION BARRESI Grantor's Mailing Address (including county): 1709 W. Mesa Park Drive Round Rock, Texas 78664 Williamson County Trustee: Stephan L. Sheets Trustee's Mailing Address (including county): Stephan L. Sheets 309 East Main Round Rock, Texas 78664 Williamson County Beneficiary: City of Round Rock, Texas, a Texas corporation Beneficiary's Mailing Address (including county): City of Round Rock Attn: Minor Home Repair Program Manager 221 East Main Round Rock, Texas 78664 Williamson County Note(s) Date: , 2006 Amount: $7,764.00 Maker (whether one or more): JOSEPH AND MARION BARRESI 00091675 Payee: CITY OF ROUND ROCK, TEXAS, a Texas corporation 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 $115,532.00, of the 31St day of March 2003, executed by Grantor, payable to the order of WELLS FARGO HOME MORTGAGE, INC., 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; and The liens securing another note in the original principal amount of $117,262.00, of the 23rd day of May 2005, executed by Grantor, payable to the order of MERS, INC., as nominee for WATERMARK FINANCIAL PARTNERS, INC. (herein collectively referred to as, "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, which renews and extends the lien provided above executed on the 31St day of March 2003. 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 2005, 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. 2 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. 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 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 3 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 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 4 (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) grant of a leasehold interest of three years or less without an option to purchase; (e) transfer to a spouse or children of Grantor or between co-Grantors; (f) transfer to a relative of Grantor on Grantor's death; and (g) 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 7. Leases are not assigned. Grantor 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 7 without taking possession of the Property. Beneficiary shall apply all rent and other income and receipts collected under this paragraph 7 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 7, and acting under this paragraph 7 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 appoint of a receiver under Texas law. 5 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 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. 6 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. GRANTOR: ATTACHED EXHIBIT "A" - Legal Description of Property STATE OF TEXAS COUNTY OF WILLIAMSON .g42.".4.9-6(., JeSEP BARRESI MARION BARRSI ACKNOWLEDGMENT This instrument was acknowledged before me on this the 23 day of 1/44-4441 2006 by Joseph Barresi. MARGARITA B. LOPEZ MY COMMISSION EXPIRES March 6, 2007 1 1 a,eriebr• (,& B. Notary Public, State of Texas 7 ACKNOWLEDGMENT STATE OF TEXAS COUNTY OF WILLIAMSON This instrument was acknowledged before me on this the 23 day ofSi2-hataky 2006 by Marion Barresi. MARGARITA B. LOPEZ MY COMMISSION EXPIRES March 6, 2007 1 PLEASE RETURN TO: Notary Public, State of Texas City of Round Rock Attn: Minor Home Repair Program Manager 221 East Main Round Rock, Texas 78664 8 A -el -5 EXHIBIT "A" (Legal Description of Property) The Property (including any improvements) referred to in this agreement is described as follows: Lot 3, Block "J", Mesa Park Section Two, a subdivision in Williamson County, Texas, according to the map or plat thereof recorded in Cabinet C, Slide 50, Plat Records of Williamson County, Texas. 9 COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) - COMMUNITY HOUSING REPAIR PROGRAM CONTRACTOR AGREEMENT This CDBG Community Housing Repair Program Contractor Agreement (Agreement), is made this % 3 day ofi, 2006, 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 77317 ("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 3, Block "J", Mesa Park Section Two, a subdivision in Williamson County, Texas, according to the map or plat thereof recorded in Cabinet C, Slide 50, Plat Records of Williamson County, Texas, also known as 1709 W. Mesa Park Drive, Round Rock, Texas, as specified in the Statement of Work, 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 $7,764.00 ("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 Statement of Work after it 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. If CONTRACTOR is requesting payments of the Contract Amount prior to the completion of all work described in the Statement of Work, CONTRACTOR will submit a performance bond to CITY as part of this Agreement. CITY will pay CONTRACTOR for work in accordance with CITY'S Prompt Payment Policy, as defined in the City of Round Rock Minor Horne Repair Program Policies and Procedures. 1.3 CONTRACTOR will not deviate from the work described in the Statement of Work without a change order from CITY. Any such change order will be included in an amendment to this 00096169 R-&-09-I3-IOF4 Agreement. The Contract Amount and any change orders will not exceed a total of $15,000.00. 1.4 All work specified in the Statement of Work will be satisfactorily completed within ninety (90) days from the date of the Notice to Proceed. 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 Statement of Work, CONTRACTOR will not receive funding for any work that is found to be improperly performed or incomplete. 2.3 CONTRACTOR understands that a performance bond is required as part of this Agreement if CONTRACTOR is requesting payments of the Contract Amount prior to the completion of all work described in the Statement of Work. 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 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 2 codes and requirements whether or not covered by the Statement of Work, 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 Bid, attached hereto and incorporated herein as Exhibit "B" 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 Statement of Work 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 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 3 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 Statement of Work or price provided above will be made 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 4 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 Substitute W9 Form, attached hereto and incorporated herein as Exhibit "C" 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 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. 5 ARTICLE 5 PAYMENTS 5.1 For work completed by CONTRACTOR, as described in the Statement of Work, CITY agrees to pay CONTRACTOR the Contract Amount after the 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; or if a performance bond is present, CITY agrees to make payments to CONTRACTOR of the Contract Amount prior to the completion of all work described in the Statement of Work, in accordance with 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. Neither CITY nor CONTRACTOR will assign, sublet, or transfer any interest in this Agreement without the 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: 6 (1) Statement of Work (Exhibit "A"); (2) Bid (Exhibit "B"); and (3) Substitute W9 Form (Exhibit "C"). 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. C. • , f ' : : 'Xt./NU/ 40"-k Name �e Pre_ Title Title 7 EXHIBIT "A" STATEMENT OF WORK Contractor Signature Bid Due Date: 1/24/2006 PROJECT TYPE: Minor Rehabilitation Quantity Unit t y E. w w 2 QU O 1- za (' J f� w Q UJ wZ 3; cc U g w Z Z F— CL Q 2ILZJ wZ WOwO �Q c cn>= 0 — t°3 C N U co O L Repair plumbing ca o. • N a) E C 0 E � m • 0) > > BATHROOM #1 w N CD BATHROOM ENTRY DOOR. Q w N o6 O O 0 w 00 -J -J Q LLl f— (21 U O LUC) O cC• w as x 3 C 0 LL U !Y Round Rock, TV 1709 W. Mesa Park Monday, December 05, 2005 § ( 2 / w w w w w q q 0 / a FRONT ENTRY GARAGE (1), REAR (1) / 1 m 2 m O q aZ <0 Li- • 2 0c o1- -I0 o w� & �R-I �(9 Z CCCa5 (XU) § E cco c . $ _� F $ ¢ 2 / k k k 0 $ © k2 2 °Q %$c 2 ƒkm f\ & 43: k E t o R o m 13 1-) �k� �k7 �/ '5 u) k k20 9 C \ c■ 7 2 Q o■ 0 2. \ �> 322 c 60 fO22 x :fv @@ K • u_ 2= o y 2 m SR _ 0 . � � � � 2 a. � � � 2 / a)0 °C0. O.o 0— @k ° % hD c. j k J >as cg�� o_o , 7:5“-; 71-) . �$22 kt2 _0 R / Zs § 'V ku. (Xq%0 0 k o° / c77(0 C2\ k�� U°oC %� W\k u) 2� 5cra@ ƒf$ wos . °? fox 0 o n o CO 0 o k L.) k��5 IA CIO 7�£ %Ogƒ -EcE�2 c comms 2>.2§ ofd 5�C ate— C ¥02$ 2 c.3 a O w c 5 L a$ 0 c 7 d c k\ a o ƒ\ k k w X UJ p co co 1 Round Rock, TV 1709 W Mesa Park Monday, December 05, 2005 ..tu et 7 FRONT ENTRY. a O O O— 1 c 0_ E a)cv L L c • m 'a p U a3 Una) E• 3�' X co cI) _ • cto O N V E O c�cv w wCNC _O a) L � c U Q W ED W 3 5 • a) is c ;F _c r. X 3 0) E - o p X U -c.c0 �. N X Uco CA c •� —.—ca •c N M w g) -X 0 0 C7 23 a) E E a x N W 0 (Y) U co FRONT BEDROOM Round Rock, TV 1709 W. Mesa Park Monday, December 05, 2005 / § wg U¥ <Z ƒ g Zm LU Zk w_J >-3 w R%E 2 c 2Ta m c .0 0 °)k §2 C § k k \>, 2m� W o u Q1k/ U 1 STORAGE BUILDING w LO c � w ww wCfo I -X I- I- 0 000Q - LQ. �U �m Z 3Z.iEw Q«�� o_j /ƒ/U �D <w-10 /�E wx2Z m�3 QLIY<m $ E mco 7 =§f 3 2 c \f§ � k§� ��/k / 0 a: R m 2 Fs 0. _) a_ al k w 555 (1) Q.) P. 3/0@ • / $U_C0 �E 7g� �E »d2 Jco 0 .50 d c k/ Lu w w UTILITY ROOM #1 WATER HEATER SHUTOFF % c 0 To k & c • / � kR «o �2 R Cf / / a151 3acc a. t @ \ a) > O C o 0 / 0o 2D ® e 2 [ t t /• ƒ/ k2 E-( 0 Round Rock, TV 7709 W. Mesa Park Monday, December 05, 2005 EXHIBIT "B" BID Contractor Name Bid Due Date: 1/24/2006 2 «U �I = Z a 1-113 t 0 - O CO 0. < @ CO§ k/ <09 o wg �w< Q >w 2 aO ƒ Z /k�ww ƒ9>k E. —.c- c.) cm / _/� ƒ a. / % $ \ E i 2 /ca : Ce t. U 2 / k - � a ƒa) ea �k : E &= k£ _g @ \ 43 k E 2 22� @ _\,ac0 ■ 2 o c rj c 2 c q 3 2 8 0 t « > -0 4 q g et oiTt N. 2 C § soc)' « Crr q w � BAT''QOOM ENTRY DOOR. w A % m 0 0 O w m k w0 U� O 1-U 0 cc �0 Round Rock, TX /709 W: Mesa Park 4.4 tdQ.#0 .,„ LU W ¢ w W ¢ w • y cl N .-•• N a w v v �� ¢ ¢ (°.(0 CV CI CO `- `- rCri 4- e- ,...4 `- FRONT ENTRY GARAGE (1), REAR (1) 0 E as 0,.-: CO Vic °6 -CD al c -rn . wm m cm ‘6-coao x bio m v=, m •-• Q' c 3 E () c a 3 w c 4° coi an Cco>y mom .a �2o . Coco �m n „s> 7,-, c Et 5� �N� o cp>. t CO2 amici c� Td .2 c) i o Co oo as o m> e0 NE"o U� rn-m_ +- ca if) .4 m0 a'oca Sm`- otj.. C�p3 o wmv • r. on mw - g mZ m •in0a.E_ .o owm 3 oO IVi aXi m o v m wm, C ° > 0 ai m C9 m x m c •�o v R c c,e o m o ai =3 m o c�- o a m am L m mo Uvm.o Ow-'" .--3 �d.�V a �cmE �n cpm 0-c.v LU �.-mr I(9 , _.� E o aa)a Qc X�'oC� o= o m nm ��' _ :-, m fII a N m U x a () O o p vi 0 C min m _Q re x c m a.— w m m mr-� ao m— a) 03 m as= m N O mm -0 a-mi0.3o wmm 73m 7- u)_ CE .c -0 • mho O- c , EE O c 3 O c o.o RS 0 a o° O ..... m w m�a X • t, a0 co 0 r Round Rock, TV 1709 W. Mesa Park E 0 1 —J L0 4 FRONT ENTRY. LL co co N FRONT BEDROOM 4 o Na) _o) C Y �• "Q co a� _C t6 oct, _(4 a) O a) 3 E� =co0� 3 Tu QI a N a s (6 i m o c n1 3g 2 m °a . �s r c el.= m ma ma o > a3 o °?coc 35 =U�c 3a)Lo a) i' c6 cai 3 = 44-n °a4 m Q Cr al Tu. a;� W' 1] C c c a) a) Q d ooccv y,. c co�=aa)i °moo= c63 U v, 3 rn m c� II o E x n- o 4 a-aoi� E w" w4 P. ° m'c c m3 o.2 a) c'XW-� 2 m� a 3 c3 a x N a) m= a c Z`v o` u) rncyn Lac vCC "'cz, �cvicr� vi6-wco ycm c6 i o E E. L C 0 a- c6 W a� m Tc/5 a7 to CO y N a) U m i).— N 3 a W a •• 2 Ar t6 - L (0o X_ 6(0 v'mu) a a)assn x m o • Me (0 Who v aa) Sin= 3v U a Le s�ac� t N o U n ID .xj 3i w ƒ g « w 4 k 0 O 6 0cri � | / ro 4 w ¥ E- 0 O WO wW } n® x w2 p $ no I - Z w 0 0 li 1- %, Z rwY Z0R 0Z UR O_ 2 -Z 0 Wq W20 - 1n 3 « . Iw 3uu <®ZR 0/ ��ƒ F- CC <LR6 Or LU «w�0 I-- 0 %ƒ ƒ72Y �kk WATER HEATER f / mi 3t c° 2 £m_ 3 22 2- = %©0 § _c 3 @ 2 / /Ts§ o a $t 2 5 0 13 e c■ t £$- 0) o t .» :-� k E , c ©�/ % 2c�: « « £2 I. k k£� §a)R/ �E R� 2§ n a.■2 aesx■ 7■ ■ ■_ ƒ�� %-2�3Lo k# a. 'hi at$ CO m W%�� 0- 1*:-.. �� �k // 3 7 _ƒ \ A k K } 0 �= £ ƒ a M 0 0° _o c J o o kƒ A / / § o § a 0 E / m I 2 \2a w2/ k� � tt O$$ �k } LU 2 § dckk kk �� az Q k R $ ttt cv ( X - � o R \ c.i2 1709 1+; Mesa Park EXHIBIT "C" SUBSTITUTE W9 FORM For, W-9 (Rev.NO1Qmber 2005) Department of the Treasury 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 on page 2. Name (as shown on your me tax return) 11`l AuM'n5 d- i -e54 ifQ9OLCnn C, Business name, if different from above S -e Check appropriate 0 Partnership 0 Other O.❑ withholding Exempt from backup box; m Sololee ivipproopprietor Hass (number, street, and apt. or suite no.) -'2 t1 tiO0cJ t'_Ie-e br Requester's name and address (optional) City, state, and ZIP code W V\A'\S T?( 7-) 1O List account numbers) here (optional) Part 1 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 entities, it is your employer identification number (EIN). 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 11+1+111 or Employer ide number .)IO+/ I b913 lol / Io Under penalties of perjury, 1 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. 1 am not subject to backup withholding because: (a) 1 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 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 retum. 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 TIN. (See the instructions on page 4.) Sign Sign Here Signature of 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: Date ► • 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. 10231X Form W-9 (Rev. 11-2005) SEE BELOW FOR IMPORTANT INFORMATION ABOUT YOUR RIGHT OF RECISSION Notice to Customer Required by Federal Law: You have entered into a transaction under the City of Round Rock Minor Home Repair Program on February 23, 2006, which may result in a lien, mortgage, or other security interest on your home. You have a legal right under federal law to cancel this transaction, if you desire to do so, without any penalty or obligation, within three (3) business days from the above date or any later date on which all material disclosures required under the Truth in Lending Act have been given to you. If you so cancel the transaction, any lien, mortgage, or other security interest on your home arising from this transaction is automatically void. You are also entitled to receive a refund of any down payment or other consideration if you cancel. If you decide to cancel this transaction, you may do so by notifying: MONA RYAN MINOR HOME REPAIR PROGRAM MANAGER 221 EAST MAIN STREET ROUND ROCK, TEXAS 78664 by mail or telegram sent no later than midnight of February 28, 2006. You may also use another form of written notice identifying the transaction if it is delivered to the above address, not later than the date given. This notice may be used for that purpose by dating and signing below. I HEREBY CANCEL THIS TRANSACTION SIGNATURE(S) DATE EFFECT OF RESCISSION: When a customer exercises his/her right to rescind he/she is not liable for any finance or other charges, and any security interest becomes void upon such a rescission. Within ten (10) days after receipt of a notice of rescission, the creditor shall return to the customer any money or property given as earnest money, down payment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under this transaction. If the creditor has delivered any property to the customer, the customer may retain possession of it. Upon the performance of the creditor's obligations under this section, the customer shall tender the property to the creditor, except that if return of the property in kind would be impracticable or inequitable, the customer shall tender its reasonable value. Tender shall be made at the location of the property or at the residence of the customer, at the option of the customer. If the creditor does not take possession of the property within then (10) days after tender by the customer, ownership of the property vests in the customer, without obligations on his/her part to pay for it. R-043-04.13 /OEg I ACKNOWLEDGE RECEIPT OF TWO COPIES OF THIS NOTICE o /Gbb,!a�'U Com,, J omeowner -02-3-ot Date "_ 23—ac Date —,0 S --el° Date 2 Date: REAL ESTATE LIEN NOTE (Minor Home Repair Program) , 2006 Maker (whether one or more): JOSEPH AND MARION BARRESI Maker's Mailing Address (including county): 1709 W. Mesa Park Drive Round Rock, Texas 78664 Williamson County Payee: CITY OF ROUND ROCK, TEXAS 1. Place for Payment (including county): CITY OF ROUND ROCK Attn: Minor Home Repair 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: SEVEN THOUSAND SEVEN HUNDRED SIXTY-FOUR AND NO/100 DOLLARS ($7,764.00) 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 9 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 minor home repairs 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. 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. 00091678 g-Ulo—OSi l 3 /OE y 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 and if necessary payable as stated in this Paragraph. 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 the Property is sold, leased or there is a transfer of title of the property, including transfer by contract for deed, within the five (5) years from the date of this Note, Maker shall repay the principal loan amount to Payee. If there is no sale, lease, or transfer of title of the Property within five (5) years from the date of this Note, the loan shall be forgiven. 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. 2 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. c. "Minor Home Repair 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 WELLS FARGO HOME MORTGAGE, INC. and/or MERS, INC., as nominee for WATERMARK FINANCIAL PARTNERS, INC. 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. 3 j. "Senior Lien Note(s)" means other Notes in the original principal amount of $115,710.00, of the 4`h day of October 2001, and $117,262.00, of the 23'd day of May 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 or to be recorded in the real property records of Williamson County, Texas. 1. "Subordinate Security Instrument" means the instruments identified in Paragraph 7.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. 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. 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 Maker is in Default under this Note. 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 shall be in Default under this Note. 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 is a Default 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. iv. The Property or Maker is not Eligible under CDBG. The Maker is in default under this Note, if: 4 (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 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 Minor Home Repair 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. (3) v. 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' $115,532.00 and $117,262.00 Notes or in observance of any obligations or covenants of any instruments securing them, the debt evidenced by this $7,764.00 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 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. 5 vi. 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. vii. 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 Minor Home Repair 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 the Property Address above, or at a different address if Maker gives the Note Holder a notice of Maker's different address. 6 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 under the circumstances described in Paragraph 15, 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. dEP BARRESI eVOr -A--e° MARION BARRES ATTACHED EXHIBIT "A" - Legal Description of Property PLEASE RETURN TO: Sheets & Crossfield, P.C. 309 E. Main St. Round Rock, Texas 78664 8 EXHIBIT "A" Lot 3, Block "J", Mesa Park Section Two, a subdivision in Williamson County, Texas, according to the map or plat thereof recorded in Cabinet C, Slide 50, Plat Records of Williamson County, Texas. 9 EXHIBIT "E" DEED OF TRUST 111111111111111111111111111111111111111111111111111111111111 :T,Gs DEED OF TRUST 2006061992 (Minor Home Repair 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: 13 , 2006 Grantor (whether one or more): JOSEPH AND MARION BARRESI Grantor's Mailing Address (including county): 1709 W. Mesa Park Drive Round Rock, Texas 78664 Williamson County Trustee: Stephan L. Sheets Trustee's Mailing Address (including county): Stephan L. Sheets 309 East Main Round Rock, Texas 78664 Williamson County Beneficiary: City of Round Rock, Texas, a Texas corporation Beneficiary's Mailing Address (including county): City of Round Rock Attn: Minor Home Repair Program Manager 221 East Main Round Rock, Texas 78664 Williamson County Note(s) Date: Amount: $7,764.00 Maker (whether one or more): JOSEPH AND MARION BARRESI 00091675 RM4-OH3 1oE9 Payee: CITY OF ROUND ROCK, TEXAS, a Texas corporation 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" attachedthis to thi s 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 115 St p P $ ,532.00, of the 31 day of March 2003, executed by Grantor,a able to the order of WELLS y FARGO HOME MORTGAGE, INC., including without limitation the liens evidenced by that certain deed of trust and security agreement, of even date, executed byGrantor in favor of Financial Institution and recorded in the real property records of Williamson County, and The liens securing another note in the originalrinci 117 al amount of $ 23rdp p $ ,262.00, of the day of May 2005, executed by Grantor, payable to the order of MER S, INC., as nominee for WATERMARK FINANCIAL PARTNERS, INC.herein collectively ollectively referred to as, "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 realert ro p p y records of Williamson County, Texas, which renews and extends the lienrovided above executed31st p on the day of March 2003. 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 bush 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 recordnot; g � or all presently recorded instruments that affect the Property; taxes for 2005, the payment of which Grantor assumes; and subsequent assessments for that andrio p r years due to change in land usage, ownership, or both, thea ment of which Grantor y assumes. 2 For value received and to secure payment of the Note, Grantor conveys the Property y p y 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 accordingits this to terms, Deed of Trust shall have no further effect, and Beneficiary shall release it at Grantor's expense. 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 policythat: insurance Y 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; q 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 insurancep olic ; Y� 7. if this is not a first lien, pay all prior lien notes that Grantor isersonall able to P Y 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 bythis 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 g improvements covered by the policy. 4. If Grantor fails to perform any of Grantor's obligations, Beneficiary � ma y perform those obligations and be reimbursed by Grantor on demand at thelace p where the Note is payable for any sums so paid, including attorney's fees, plus interest Yon those sums from the dates of payment at the rate stated in the Note for matured, unpaid amounts. The sum to be reimbursed shall be secured by this Deed of Trust. 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 itincl ( uding a beneficial interest) is sold or transferred without compliance with the terms rms of the Note and this Deed of Trust, or if default occurs on arior lien note or other er 3 instrument, and the default continues after Beneficiarygives Grantor notice of the default and the time within which it must be cured, as mayrequired be 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 Property Texas Pro ertY Code as then amended; and c. purchase the Property at any foreclosure sale by offeringthe highest bid and g 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 shallrovide the Financial Institution, stitution, 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 q ed 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 th a general warranty binding Grantor, subject to prior liens and to other exceptions to conveyance and warranty; p 3. from the proceeds of the sale, pay, in this order: a. expenses of foreclosure, including a commission to Trustee of five(5)ercent of . p the bid; b. to Beneficiary, the full amount of principal, interest, attorney's fees, y and other charges due and unpaid; c. any amounts required by law to be paid before payment to Grantor; and d. to Grantor, any balance; and 4. 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 copyof the notice of sale given Grantor. foreclosure 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'srior p written consent, Trustee may declare the Note secured by this Deed of Trust immediatelypayable p yable and invoke any remedies provided in this Deed of Trust for default. If the Property is residential real property containing fewer than five dwellingunits or a residential manufactured home occupied by Grantor, exceptions to thisrovision are e limited to 4 (a) a subordinate lien or encumbrance that does not transfer rights g is of occupancy of the Property; (b) creation of a purchase -money securityinterest for household hold appliances, (c) transfer by devise, descent, or operation of law on the death of- • a co Grantor, (d) grant of a leasehold interest of three years or less without an option topurchase; p (e) transfer to a spouse or children of Grantor or between co -Grantors; (f) transfer to a relative of Grantor on Grantor's death; and (g) transfer to an inter . vivos trust in which Grantor is an remains a beneficiary and . occupant of the Property. p p Y 3. Recitals in any Trustee's deed conveying the Property will be p y presumed sumed 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 sumsa able to or received Y by Grantor from condemnation of all or part of the Property, fromrivate sale in lieu p of condemnation, and from damages caused by public works or construction on or near the Property. After deducting attorney's expenses incurred, includingattorne 's fees ,Beneficiary may release any remaining sums to Grantor ora 1 such apply 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, allresent and future e rent and other income and receipts from the Property. Prior to such maturity Borrower s rights shall not arise under this paragraph 7. Leases are not assigned. Grantor warrants the validity and enforceability of the assignment. Grantor may as Beneficiary's licensee collect rent and other income and receipts as long ong 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 anderforman p ce of this Deed of Trust, but if the rent and other income and receipts exceed the amount unt 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 may agent g ren t the Property if it is vacant and collect all rent and other income and . recei tsBeneficiary y n either has nor assumes any obligations as lessor or landlord with respect to ert Beneficiary�any occupant p nt of the Property. y may exercise Beneficiary s rights and remedies under der this paragraph 7 without taking possession of the Property. Beneficiaryshall apply all rent and other income and receipts collected under thisara a p gr ph 7 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 thisara p graph 7, and acting under this paragraph 7 does not waive any of Beneficiary's other rights ghts or remedies. If Grantor becomes a voluntary or involuntary bankrupt, Beneficiary's p � y s filing a proof of claim in bankruptcy will be tantamount to thea appoint of a receiver er 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, rued, 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 beenaid refunded. efunded. On any acceleration or required or permitted prepayment, anysuch excess shall be canceled automatically as of the acceleration or prepayment or, if alreadypaid, credited ran on the principal of the debt or, if the principal of the debt has beenaid refunded. efunded. 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 bythe Beneficiary yin connection with a transfer on death, divorce, legal separation, or incapacity legal g p y of a Grantor as provided in the Note, the Note and this Deed of Trust maynot 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 anyprior lien instrument, the debt secured by this Deed of Trust shall immediatelybecome payable at the option of Beneficiary. 13. Beneficiary and Grantor acknowledge and agree that this Deedsubject 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 mayhereafter er be made pursuant to the prior lien, including all sums advanced for theose u of(a)p rp protecting or further securing the lien of the prior lien or (b) constructing,renovating, g, repairing, furnishing, fixturing or equipping the Property. The terms and provisions of the prior lien are paramount and controlling, and they supersede de a p ny 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, anyprovisions herein nor any provision in any collateral agreement restricting the use of the Property to low p y or moderate income households or otherwise restricting the Grantor's abilitysell to the Property shall have no further force or effect on subsequent owners orurchasers p 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 p y 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 that(i)q title, provided 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 curing p the default as determined by the Financial Institution, within the - sixt daperiod provided Y p ed 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 andronouns include de the plural. 6 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 sameerson the term "Grantor" p � or shall include Maker. EXECUTED AND DELIVERED as of the date first above written. GRANTOR: ./SEP BARRE SI 4d4u,VU,44,4: teCZ-4.4iv MARION BAR ATTACHED EXHIBIT "A" - Legal Description of Property P Y ACKNOWLEDGMENT STATE OF TEXAS COUNTY OF WILLIAMSON Ce..c{-ve This instrument was acknowledged before me on this the 23 day of Jthia(.0t/./2006 by Joseph Barresi. MARGARITA B. LOPEZ MY COMMISSION EXPIRES March 6, 2007 • `M.ewgaR.c. B. 11..iilt Notary Public, State of Texas 7 ACKNOWLEDGMENT STATE OF TEXAS COUNTY OF WILLIAMSON This instrument was acknowledged before me on this the 23 day of 2006 by Marion Barresi. MARGARITA B. LOPEZ MY COMMISSION EXPIRES March 6, 2007 PLEASE RETURN TO: Schataky • 11V( aka CaCtec P -e • At/.4) Notary Public, State of Texas City of Round Rock Attn: Minor Home Repair Program Manager 221 East Main 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 3, Block "J", Mesa Park Section Two, a subdivision in Williamson County, Texas, according to the map or plat thereof recorded in Cabinet C, Slide 50, Plat Records of Williamson County, Texas. 9 FILED AND RECORDED OFFICIAL PUBLIC RECORDS 2006061992 E,--RIA-u\_ 08/09/2006 04:25 PM CARRILLO $48.00 NANCY E. RISTER, COUNTY CLERK WILLIAMSON COUNTY, TEXAS