Loading...
R-06-07-27-11D1 - 7/27/2006RESOLUTION NO. R -06-07-27-11D1 WHEREAS, the City of Round Rock has received certain funds from the United States Department of Housing and Urban Development under the Housing and Community Development Act of 1974, and WHEREAS, the City of Round Rock wishes to use said funds to make a loan to the Agape Pregnancy Resource Center for facility expansion, and WHEREAS, the City Council desires to enter into a Public Facilities Loan Agreement with Agape Pregnancy Resource Center, 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 Public Facilities Loan Agreement with Agape Pregnancy Resource Center, a copy of said agreement being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 27th day of July, 2006. ATTE R. NYLE yor City ound Rock, Texas CHRISTINE R. MARTINEZ, City Secre @PFDesktop\::ODMA/WORLDOX/O:/wdox/RESOLUTI/R60727D1.WPD/rmc COMMUNITY DEVELOPMENT BLOCK GRANT PUBLIC FACILITIES LOAN AGREEMENT Effective Date: , 2006 This Community Development Block Grant Public Facilities Loan Agreement (the "Loan Agreement"), is between AGAPE PREGNANCY RESOURCE CENTER, a Texas non-profit corporation (the "Borrower"), and the CITY OF ROUND ROCK, a Texas home -rule municipality (the "City"). Recitals: WHEREAS, the City has received certain funds from the United States Department of Housing and Urban Development under Housing and Community Development Act of 1974, as amended, which City intends to use to make the Loan to Borrower; and WHEREAS, making the Loan to Borrower, which will be secured by the Security Agreements, will enable Borrower to construct the Project on the Mortgaged Property; and WHEREAS, as part of the consideration for the Loan, Borrower has agreed that the Land will remain for the Restricted Period subject to the Right to Substitute; NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties agree as follows: ARTICLE I. Terms of Loan Agreement 1.1. Definitions. As used in this Loan Agreement and any attachment or exhibit incorporated in it the terms defined in the Public Facilities Definitions, attached hereto and incorporated herein as Exhibit "A" to this Loan Agreement and by this reference have the meanings assigned to each term. 1.2. Purpose and Amount of Loan. The Loan is for the purpose of implementing and carrying out the Project as further described in the Statement of Work, attached hereto and incorporated herein as Exhibit `B", including developing and constructing Improvements to the Mortgaged Property. 1.3. The Note. The Loan to be made hereunder shall be evidenced by the Note. 1.4. Terms of Payment. The Loan to be made hereunder shall bear interest at the rate specified in the Note and shall be paid in accordance with the terms and conditions of the Note of even date with this Loan Agreement. 0010229!/vr 1 EXHIBIT 1.5. Term. The term of this Loan Agreement and the Loan shall begin on the Effective Date of this Loan Agreement and end on the completion of the Project, evidenced by the issuance of the Certificate of Occupancy by the City. 1.6. Rights and Obligations. The holders of the Note, and Borrower, hereby expressly reserve all rights to jointly amend any provisions of this Loan Agreement, to consent to or waive any departure from the provisions of this Loan Agreement, to amend or consent to or waive departure from the provisions of the Note, and to release or otherwise deal with any collateral security for payment of the Note. ARTICLE II. Performance and Compliance with All Laws 2.1. Agreement to Perform. Borrower agrees to perform the Project and to produce reports as necessary until completion of the Project in accordance with the terms and conditions of this Loan Agreement. 2.2. Prevailing Documents. In the event any conflict should arise between the terms of this Loan Agreement and the Loan Documents, this Loan Agreement shall prevail, then the other Loan Documents. 2.3. Performance within Legal Requirements. It is expressly understood that Borrower's performance shall be in strict compliance with all Legal Requirements, which in no way is meant to constitute a complete compilation of all duties imposed upon Borrower by law or administrative ruling or to narrow the standards which Borrower must follow. Borrower shall promptly refund any funds not expended in accordance with the Legal Requirements or the Loan Documents. 2.4. Legal Requirements Governing Property and Improvements. The Land and the Improvements and the intended use thereof by Borrower comply with all Legal Requirements, including, without limitation, all applicable restrictive covenants, zoning ordinances, subdivision and building codes, flood disaster laws, applicable health and environmental laws and regulations and all other ordinances, orders or requirements issued by any state, federal or municipal authorities having or claiming jurisdiction over the Mortgaged Property. 2.5. Compliance with Legal Requirements. Borrower will promptly and faithfully comply with, conform to, and obey all Legal Requirements, whether the same shall necessitate structural changes in, improvements to, or interfere with the use or enjoyment of, the Mortgaged Property. 2.6. Interpretation of Legal Requirements. In the event a question should arise as to the interpretation of the Federal Requirements governing a particular aspect of the Project under this Loan Agreement, City's interpretation shall prevail and Borrower shall not be liable for relying on such interpretation if such interpretation is in writing and is later found to be incorrect. 2 ARTICLE III. Conditions of Funding 3.1. Conditions for Borrower. The obligation of City to make a loan as provided in this Loan Agreement is subject to the receipt by City from Borrower of the Note in compliance with the terms hereof and, in City's sole discretion, to the following additional conditions precedent: 3.1.1. Truth and Accuracy. The truth and accuracy, as of the Effective Date of this Loan Agreement, of all representations and warranties made herein by Borrower and the receipt by City of such documents, certificates of officers of Borrower, and such other evidence, as City reasonably shall have requested respecting the meeting of these conditions. 3.1.2. Receipt of Documents. The receipt by City from Borrower of the additional Loan Documents executed by Borrower and copies of all other documents required in connection with this Loan Agreement and the transactions contemplated thereby, or respecting the business and affairs of Borrower, that City may reasonably have requested. 3.1.3. Effective Date of Agreement. The receipt by City from Borrower of the Loan Documents, each dated effective the same date as this Loan Agreement, executed by Borrower, satisfactory in form and substance to City and certified, when appropriate, by proper corporate officers and Governmental Authorities. 3.1.4. Superior Lien. The agreement by Superior Lienholder, if applicable, that this Loan may have a security interest in the Property. 3.1.5. Acquisition of Mortgaged Property. If not previously owned, the acquisition of the Mortgaged Property in the name of Borrower and the filing of a warranty deed in the name of Borrower in the Williamson County, Texas, real property records. 3.1.6. Receipt of Title Policy. The receipt by City of a mortgagee's title policy covering the Mortgaged Property free and clear of all liens and other encumbrances other than the Superior Lien, as applicable. ARTICLE IV. Application of Proceeds 4.1. Purpose of Loan. Borrower agrees that it will apply the funds received by it under this Loan Agreement solely for the purpose set forth in Section 1.2. of this Loan Agreement. 4.2. Payment of Additional Project Costs. Borrower agrees to provide additional, unencumbered funds to pay all additional Project costs incurred as a result of cost overruns or unanticipated expenses necessary to complete the Project according to the terms and conditions of this Loan Agreement. 3 ARTICLE V. Disbursement of Loan 5.1. Advances. Provided such cost are authorized by the Approved Budget, attached hereto and incorporated herein as Exhibit "C", and are allowable under Article VI. of this Loan Agreement, Borrower may make a request to the City for an Advance not more often than once monthly. Borrower's request shall state the cost of any land acquired, the cost of the architectural, engineering or other planning professional service necessary to design the Project, the cost of any labor and materials purchased and incorporated in the Project and any prorated cost of Contractor's overhead minus the aggregate of previous disbursement payments. 5.2. Request for Disbursement Requirements. Borrower shall cause the request for disbursement of a payment, with respect to the same period covered by the request, to include: 5.2.1. the Draw Request; 5.2.2. a monthly performance report, in a manner or form approved by the City; 5.2.3. a list showing the quantity and price of materials purchased and incorporated into the Project during the previous month(s), together with any invoices of the suppliers thereof or other information requested by the City; 5.2.4. a receipted statement or an invoice that supports all expenditures and sets forth the charges made for work performed from each consultant(s), design professional(s), contractor(s), subcontractor(s) or material supplier(s); 5.2.5. if disbursement of a payment is requested on the basis of materials or equipment not incorporated in the Project but delivered and suitably stored at the Project site or at another location agreed to in writing between such contractor and Borrower, the Draw Request shall be accompanied by such bills of sale, data and other procedures satisfactory to City substantiating Borrower's title to such materials or equipment or otherwise protecting Borrower's interest. Disbursement of such payment amounts will not include any amount for such contractor's overhead or profit or relieve contractor of its obligation to protect and install such materials or equipment in accordance with the requirements of the Loan Documents and to restore damaged or defective work. If materials or equipment are stored at another location they shall be stored in a bonded and insured facility, accessible to City and Borrower, and shall be clearly marked as property of Borrower; 5.2.6. a statement, in such form as required by the City, showing the names and address of each of the contractor's and subcontractor's employees and the hours of labor the contractor, the subcontractor and employees of each spent during the request period in the performance of their work; 5.2.7. any Compliance Affidavits or such other affidavits or reports as may be reasonably required by the City to document City's liabilities under this Loan Agreement; 4 5.2.8. a monthly Subcontractor Report; and 5.2.9. an updated progress schedule. 5.3. Disbursement of Payment Amounts not to Include. Borrower shall cause the request for disbursement of a payment not to include the following: 5.3.1. any request for disbursement of a payment on account of changes in work with respect to the Project which have not been properly included in a change order; or 5.3.2. any request for disbursement of an amount the Borrower does not intend to pay because of a dispute or other reason. 5.4. Project Status Affidavits and Releases. Borrower shall provide affidavits setting forth the status of the Project and releases of any applicable mechanics and materialman's lien(s) with respect to the Mortgaged Property. 5.5. Draw Request Requirements. City will disburse a payment to the Borrower only when the Borrower furnishes a Draw Request accompanied by any additional certificates, evidence, information or clarification required by City as a condition to City's approval of any requested disbursement of a payment, including any requirements in this Loan Agreement. 5.6. Conditions of Disbursement. City will make disbursement of a payment to the Borrower after the Effective Date of this Loan Agreement only if the conditions for funding described in Article III. and the conditions of loan and disbursement of proceeds advanced to Borrower under the Loan described in Article IX of this Loan Agreement are satisfied, and when the Borrower furnishes a Draw Request accompanied by any additional certificates, evidences, information or clarification required by City as a condition to City's approval of any requested disbursement of any payment. ARTICLE VI. Allowable Costs 6.1. Incurred in Performance of Agreement. Costs will be considered allowable only if incurred directly and specifically in the performance of and in compliance with this Loan Agreement and in conformance with the standards and provisions of the Obligations and the Approved Budget, as the same may be amended from time to time with the City's prior written consent. Under no circumstances shall any portion of an Advance be used for any purpose other than the payment of those costs and fees approved by the City as legitimately relating to the cost of completing the work required by this Loan Agreement, or for an amount in excess of the amount authorized to be paid Borrower in the Approved Budget unless otherwise agreed to in writing by the City. 5 ARTICLE VII. Security 7.1. Security Agreements. Borrower shall execute and deliver to City on the Effective Date of the Agreement the Security Agreements as security for payment of the Note. The Note and Security Agreements shall be in a form satisfactory to City. In the event of default by the Borrower in the payment of the Indebtedness or the performance of any Obligation, City may, at its sole option, in addition to all other remedies, take possession of the Mortgaged Property given as security, provided City has given Borrower the right to cure the default as provided in subsection 16.1.3. of this Loan Agreement and such default is continuing. ARTICLE VIII. Representations 8.1. Representations and Warranties. In order to induce the City to make the Loan hereunder Borrower represents and warrants as follows: 8.1.1. No Litigation. Except as disclosed in writing to City, there are no (i) judicial, administrative, mediation or arbitration actions, suits, or proceedings, at law or in equity, before any Governmental Authority or arbitrator pending or threatened against or affecting Borrower, any Signatory Party, or involving the Mortgaged Property, (ii) outstanding or unpaid judgments against Borrower, any Signatory Party, or the Mortgaged Property, or (iii) defaults by Borrower with respect to any order, writ, injunction, decree, or demand of any Governmental Authority or arbitrator. Borrower or any Signatory Party are not a party to any action, suit or proceeding pending or concluded, nor, to the knowledge and good faith belief of the Borrower, is Borrower or any Signatory Party threatened with any suit or proceedings which may bring into question the validity of the transaction herein contemplated or might result in any adverse change in the business or financial condition of the Borrower or any Signatory Party from that evidenced by the financing statement provided to City by Borrower or any Signatory Party at or before funding. 8.1.2. No Bankruptcy. No bankruptcy or insolvency proceedings are pending or contemplated by Borrower or any Signatory Party or, to the best knowledge, information, and belief of Borrower or any Signatory Party, against Borrower or any Signatory Party or by or against any endorser, cosigner or guarantor of the Note. 8.1.3. Legal Authority. Borrower represents and warrants that it possesses the legal authority, pursuant to any proper, appropriate and official motion, resolution or action passed or taken, to enter into the Loan Documents. The person(s) executing the Loan Documents on behalf of Borrower represents and warrants that they have been fully authorized by Borrower to execute the Loan Documents on its behalf and to legally bind Borrower to all the terms, performances and provisions of the Loan Documents. If there is a dispute as to the legal authority of either Borrower or of the person signing the Loan Documents to enter into the Loan Documents, City shall have the right, at its option, to either temporarily suspend or permanently terminate this Loan Agreement. If City has suspended or terminated this Loan Agreement for 6 the reasons enumerated in this subsection 8.1.3., Borrower is liable to City for any money it has received from City for performance of this Loan Agreement. 8.1.4. No Default. Borrower or any Signatory Party is not in default on any obligations, covenants, or conditions contained in any bond, debenture, note, or other evidence of indebtedness or any mortgages or collateral instruments securing the same. Borrower also covenants that the making of this Loan Agreement and the consummation of the transaction contemplated herein will not violate any provision of law or result in any breach or constitute a default under any agreement to which Borrower or any Signatory Party is presently a party, or result in the creation of any lien, charge or encumbrance upon any of its property or its assets other than may be specifically allowed under the Loan Documents including without limitation the City's liens and security interests. 8.1.5. No Assignment. Borrower and each Signatory may not assign this Loan Agreement or any other Loan Document or any of Borrower's or Signatory's rights under it without City's prior written consent, and any attempted assignment is void. 8.1.6. Taxes. Borrower and each Signatory Party have filed all federal, state, county, municipal, and city income and other tax returns required to have been filed by them (including, without limitation, those required under the Tax Code) and have paid all taxes and related liabilities which have become due pursuant to such returns or pursuant to any assessments received by them. Neither Borrower nor any Signatory Party knows of any basis for any additional assessment in respect of any such taxes and related liabilities. Borrower and each Signatory Party believe that their respective tax returns properly reflect the income and taxes of Borrower and each Signatory Party for the periods covered thereby, subject only to reasonable adjustments required by the Internal Revenue Service or other applicable tax authority upon audit. Borrower or any Signatory Party shall promptly and completely file all tax returns which are required and has made or will make provision for the payment of all taxes which have or may become due pursuant to said returns or pursuant to any assessments received by Borrower or any Signatory Party. Borrower or any Signatory Party covenants that no tax liability has been asserted against Borrower or any Signatory Party by the Internal Revenue Service or any other taxing authority for taxes in excess of those already paid and Borrower or any Signatory Party knows of no basis for any such deficiency assessment. 8.1.7. Correct Information. In the event reports required to be submitted by Borrower pursuant to this Loan Agreement, are deemed by City to be incomplete or unsatisfactory, Borrower agrees to make such revisions or changes as may be required by City and at no additional cost to City. 8.1.8. Mailing Address. Borrower's mailing address, as set forth in subsection 16.1.1. of this Loan Agreement or as changed pursuant to the provisions hereof, is true and correct. 8.1.9. No Reliance on City. Borrower is experienced in the ownership and operation of properties similar to the Mortgaged Property, and Borrower and City have and are relying solely upon Borrower's expertise and business plan in connection with the ownership and operation of 7 the Mortgaged Property. Borrower is not relying on City's expertise or business acumen in connection with the Mortgaged Property. 8.1.10. Environmental and Hazardous Substances. Without regard to whether City has, or hereafter obtains, any knowledge or report of the environmental condition of the Mortgaged Property: (a) The Mortgaged Property and the operations conducted thereon do not violate any applicable law, statute, ordinance, rule, regulation, order, or determination of any Governmental Authority or any restrictive covenant or deed restriction (recorded or otherwise), including without limitation all applicable zoning ordinances and building codes, flood disaster laws and Environmental Laws. (b) Without limiting subparagraph (a) immediately preceding, the Mortgaged Property and operations conducted thereon by the current owner or operator of such Mortgaged Property, are not in violation of or subject to any existing, pending, or threatened action, suit, investigation, inquiry, or proceeding by any Governmental Authority or non-governmental entity or person or to any remedial obligations under any Environmental Law. (c) All notices, permits, licenses, or similar authorizations, if any, required to be obtained or filed in connection with the ownership, operation, or use of the Mortgaged Property, including, without limitation, the past or present generation, treatment, storage, disposal, or release of a Hazardous Substance into the environment, have been duly obtained or filed. (d) The Mortgaged Property does not contain any Hazardous Substance. (e) Borrower has taken all steps necessary to determine and has determined that no Hazardous Substances have been generated, treated, placed, held, located, or otherwise released on, under, from, or about the Mortgaged Property. (f) Borrower has not undertaken, permitted, authorized, or suffered and will not undertake, permit, authorize, or suffer the presence, use, manufacture, handling, generation, transportation, storage, treatment, discharge, release, burial, or disposal on, in, under, from or about the Mortgaged Property of any Hazardous Substance or the transportation to or from the Mortgaged Property of any Hazardous Substance. (g) There is no pending or threatened litigation, proceedings, or investigations before or by any administrative agency in which any person or entity alleges or is investigating any alleged presence, release, threat of release, placement on, in, under, from or about the Mortgaged Property, or the manufacture, handling, generation, transportation, storage, treatment, discharge, burial, or disposal on, under, from or about the Mortgaged Property, or the transportation to or from the Mortgaged Property, of any Hazardous Substance. (h) Borrower has not received any notice, and has no actual or constructive knowledge, that any Governmental Authority or any employee or agent thereof has determined, 8 or threatens to determine, or is investigating any allegation that there is a presence, release, threat of release, placement on, in, under, from or about the Mortgaged Property, or the use, manufacture, handling, generation, transportation, storage, treatment, discharge, burial, or disposal on, in, under, from or about the Mortgaged Property, or the transportation to or from the Mortgaged Property, of any Hazardous Substance. (i) There have been no communications or agreements with any Governmental Authority or any private entity, including, but not limited to, any prior owners or operators of the Mortgaged Property, relating in any way to the presence, release, threat of release, placement on, under or about the Mortgaged Property, or the use, manufacture, handling, generation, transportation, storage, treatment, discharge, burial, or disposal on, in, under or about the Mortgaged Property, or the transportation to or from the Mortgaged Property, of any Hazardous Substance. (j) Neither Borrower nor, to the best knowledge, information and belief of Borrower, any other person, including, but not limited to, any predecessor owner, tenant, licensee, occupant, user, or operator of all or any portion of the Mortgaged Property, has ever caused, permitted, authorized or suffered, and Borrower will not cause, permit, authorize, or suffer, any Hazardous Substance to be placed, held, located, or disposed of, on, in, under or about any other real property, all or any portion of which is legally or beneficially owned (or any interest or estate therein which is owned) by Borrower in any jurisdiction now or hereafter having in effect a so-called "superlien" law or ordinance or any part thereof, the effect of which law or ordinance would be to create a lien on the Mortgaged Property to secure any obligation in connection with the "superlien" law of such other jurisdiction. (k) Borrower has been issued all required federal, state, and local licenses, certificates, or permits relating to the Mortgaged Property, and Borrower and its facilities, business assets, property, leaseholds, and equipment are in compliance in all respects with all applicable federal, state, and local laws, rules, and regulations relating to, air emissions, water discharge, noise emissions, solid or liquid waste disposal, hazardous waste or materials, or other environmental, health, or safety matters. 8.1.11. Separate Tax Parcel; Legal Lot. The Mortgaged Property is taxed separately without regard to any other real estate and the Land constitutes a legally subdivided lot or lots under all applicable Legal Requirements (or, if not subdivided, no subdivision or platting of the Land is required under applicable Legal Requirements), and for all purposes may be mortgaged, conveyed or otherwise dealt with as an independent parcel. 8.1.12. Location of Property. The Land is located wholly within the corporate limits of the City of Round Rock, Texas. 8.1.13. Utilities; Access. All utility services necessary and sufficient for the full use, occupancy, operation and disposition of the Land and the Improvements for their intended purposes are available to the Mortgaged Property, including water, storm sewer, sanitary sewer, gas, electric, cable and telephone facilities, through public rights-of-way or duly recorded perpetual private easements; all streets, roads, highways, bridges and waterways necessary for 9 access to and full use, occupancy, operation and disposition of the Land and the Improvements have been completed, have been dedicated to and accepted by the appropriate municipal authority and are open and available to the Land and the Improvements without further condition or cost to Borrower; all curb cuts, driveways and traffic signals shown on the survey delivered to City prior to the execution and delivery of this Loan Agreement are existing and have been fully approved by the appropriate Governmental Authority. 8.1.14. No Lobbying; Disclosures. (a) No federal appropriated funds have been paid or will be paid, by or on behalf of Borrower, to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the award of federal appropriated funds in connection with this Loan, and its extension, continuation, renewal, amendment, or modification. (b) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan or cooperative agreement, it will complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. (c) Borrower shall insure that the anti -lobbying certification language substantially in the form set forth in this subsection 8.1.14. is included in any award documents for all subawards of funds Borrower makes available under this Loan Agreement at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. ARTICLE IX. Conditions of Loan and Disbursement of Loan Proceeds 9.1. Disbursement of Loan Proceeds. The making of the Loan and each disbursement of the Loan Proceeds hereunder shall be subject to the following conditions precedent: 9.1.1. True and Correct Statements. All of the representations and warranties contained in the Loan Documents shall be true and correct in all material respects on and as of the Date of this Loan Agreement and continuing to be true and correct on the date of each disbursement of a payment. 9.1.2. Satisfactory Form of Documents. All actions undertaken in connection with the transaction contemplated by the Loan Documents and all documents incidental thereto shall be satisfactory in form, scope and substance to City, and City shall have received copies of all documents which it may have requested in connection with said transaction in form, scope and substance reasonably satisfactory to it. 10 9.1.3. Approvals and Consents. All necessary approvals or consents, if any such approvals or consents are required of Governmental Authorities having jurisdiction with respect to the construction herein contemplated, shall have been obtained, and failure to have obtained prior to the issuance of the Certificate of Occupancy such consents shall constitute a default hereunder. 9.1.4. Receipt of Federal Funds. The receipt by City of adequate Federal Funds to meet City's liabilities under the Loan Documents. If adequate funds are not available for City to make payments or advance funds under the Loan Documents, City shall notify Borrower in writing within a reasonable time, not to exceed thirty (30) calendar days, after such fact has been determined. City may, at its option, either reduce the amount of its liability or terminate this Loan Agreement in accordance with subsection 13.1.1.(c) of this Loan Agreement. It is expressly understood that the Loan Documents in no way obligate City funds or any other monies or credits of the City of Round Rock, unless a match of City's funds are required by the HUD Law, and then only to the extent of such matching funds requirement. 9.1.5. Corporate Authority. If Borrower, or entity constituting part of Borrower, or any guarantor of the Loan to be made hereunder, is a corporation, there shall be delivered to City (with respect to each such corporation, if there be more than one) a copy of the record(s) of minutes of the Board of Directors of each such corporation specifically authorizing its officers to execute this Loan Agreement and all other Loan Documents necessary for the consummation of this transaction. The Secretary or Assistant Secretary of such corporation(s) shall certify the record(s) of the minutes of the Board of Directors to be true. 9.1.6. Approvals of other parties. All necessary approvals, releases, or consents required with respect to this transaction by any mortgagee or other party having any interest in the Mortgaged Property shall have been obtained, and failure to have obtained such consents shall constitute default hereunder. 9.1.7. Good Standing. None of the following exists: (a) an Event of Default; or (b) the requested Advance, plus the sum of (i) the initial Advance, (ii) the previous Advances (including retained amounts deemed to have been advanced) and (iii) other sums disbursed by the City under this Loan Agreement, exceeds the available amount; or (c) an order or decree in any court of competent jurisdiction enjoins or prohibits Borrower, any person or the City or any of them from performing their respective obligations under this Loan Agreement; or (d) any cost or portion thereof with respect to the Project which: (i) has been paid, reimbursed or is subject to payment or reimbursement, from any other source other than Borrower's own funds; or 11 (ii) was incurred prior to the Effective Date or after the maturity date specified in the Note, unless specifically authorized in writing by the City; or (iii) was incurred other than in strict accordance with the terms of this Loan Agreement, including all exhibits attached hereto and the Legal Requirements; or (iv) has not been billed to the City on or before the earlier of (i) sixty (60) calendar days following billing to Borrower, or (ii) within ninety (90) calendar days following termination of this Loan Agreement; or (v) is not an allowable cost identified in OMB Circular A-87, A-122 or in Article VI of this Loan Agreement; or (vi) is incurred with respect to any activity of Borrower after the City has requested that Borrower furnish data concerning such action prior to proceeding further, unless and until Borrower was thereafter advised by the City to proceed. ARTICLE X. Affirmative Covenants 10.1. Affirmative Covenants. Until payment in full of the Note and all of the other payments due City hereunder, and the performance of all of the terms, conditions and provisions of the Loan Documents, Borrower and its assigns shall cause the following to be done: 10.1.1. Compliance Information. Borrower will deliver to City within ten (10) calendar days after its receipt of any written request therefor, such information as the City may reasonably determine in its sole discretion necessary to determine whether the Borrower is complying with its covenants and agreements contained in the Loan Documents or whether an Event of Default has occurred. So long as Borrower commences the process of obtaining such information and notifies City of such action within the ten (10) calendar day period and proceeds diligently toward obtaining such information, Borrower shall have an additional twenty (20) calendar days to furnish such information to City. 10.1.2. Work Required. Borrower will perform or cause to be performed the work described in this Loan Agreement with respect to the Project, including, without limitation, the work described in the Statement of Work. 10.1.3. Diversity. Borrower shall employ an open, competitive, and non- discriminatory process to select its contractors and consultants, consistent with the Statement of Work. 10.1.4. Subcontracting. Borrower agrees that any work or service which is allowed to be subcontracted under this Loan Agreement shall be subcontracted by written contract or agreement and shall be subject by its terms, unless specific waiver is granted, in writing, by City, to each and every provision of this Loan Agreement. Borrower agrees to 12 assume the responsibility for performance and financing compliance by a subcontractor under this Loan Agreement. Borrower agrees that no subcontract placed under this Loan Agreement shall provide for payment on a cost plus a percentage of cost basis. 10.1.5. No Obligation to Others. City shall not be obligated or liable under this Loan Agreement to any party other than Borrower for payment of any monies or for provision of any goods or services. 10.1.6. Payment of Amounts Due. Subject to the provisions of Section 14.1. of this Loan Agreement, Borrower will pay punctually and fully each installment payment of principal and interest to become due on the Note in accordance with the terms of this Loan Agreement and the Note. 10.1.7. Payment of Impositions. Borrower will duly pay and discharge, or cause to be paid and discharged, the Impositions not later than the earlier to occur of (i) the due date thereof, (ii) the date any fine, penalty, interest, or cost may be added thereto or imposed, or (iii) the date prior to any date any lien may be filed for the nonpayment thereof (if such date is used to determine the due date of the respective item), and Borrower shall deliver to City a written receipt evidencing the payment of the respective Imposition, except that Borrower shall not be required to pay any such Impositions so long as the validity thereof shall be actively contested in good faith by proper proceedings, provided that any such Imposition shall be placed in escrow during such proceedings and shall be paid forthwith upon a final adjudication and order to pay from a court of competent jurisdiction. 10.1.8. Payment for Labor and Materials. Borrower will promptly pay all bills for labor, materials, supplies, and specifically fabricated materials incurred in connection with the Mortgaged Property and never permit to exist in respect of the Mortgaged Property or any part thereof any lien or security interest, even though inferior to the liens and security interests hereof, for any such bill, and in any event never permit to be created or exist in respect of the Mortgaged Property or any part thereof any other or additional lien or security interest on a parity with, superior, or inferior to any of the liens or security interests hereof, except for the Permitted Exceptions in the Deed of Trust. 10.1.9. Payment of Other Amounts. Borrower will pay the installments due on all indebtedness with respect to the Mortgaged Property to any other lenders, either heretofore or hereafter incurred or assumed by it when and as the same shall become due and payable, and will observe, perform and discharge all of the covenants, conditions and obligations which are imposed on it by any and all agreements securing or evidencing any encumbrance upon the Mortgaged Property securing this Loan so as to prevent an occurrence of any act or omission which, under the provisions thereof, may be declared to be a default thereunder which, could result in a lien being placed upon the Mortgaged Property. In the event any such payment is not paid, Borrower will immediately provide notice to City describing such default. However, giving such notice will in no way waive any other covenant in the Loan Documents. 10.1.10. Payment of Borrower Expenses. Subject to the provisions of Section 14.1. of this Loan Agreement, Borrower will pay on demand all reasonable and bona fide out -of - 13 pocket costs, fees, and expenses and other expenditures, including, but not limited to, reasonable attorneys' fees and expenses, paid or incurred by City or Trustee to third parties incident to this Loan Agreement (including without limitation, reasonable attorneys' fees and expenses in connection with the negotiation, preparation, and execution hereof and of any other Loan Documents and any amendment hereto or thereto, any release hereof, any consent, approval or waiver hereunder or under any other Loan Documents, the making of any advance under the Note, and any suit to which City or Trustee is a party involving the Deed of Trust, the Loan Documents or the Mortgaged Property) or incident to the enforcement of the Indebtedness or the Obligations or the exercise of any right or remedy of City under any of the Loan Documents, and including without limitation: (a) Expenses. Borrower will pay all costs and taxes that might be imposed or be determined to be payable in connection with the execution, issuance or delivery of the Loan Documents, or in connection with any modification, amendment or alteration of the terms and provisions thereof, and to hold City and any other holder of the Note harmless against any and all liability with respect to the Loan Documents, all of which agreements of Borrower shall survive payment of the Note. (b) Loan Expenses. If required by City, Borrower will pay in addition to any other amounts a monthly servicing fee due with each installment payment in an amount stated in the Note. (c) Expenses of Collection or Enforcement. If Borrower shall at any time default in making any payment on the Note, Borrower will, to the full extent permitted by law, pay to the holder of the Note, in addition to any other amounts that may be due from Borrower to such holder, an amount equal to the reasonable costs and expenses of collection including reasonable attorney's fees, court costs or enforcement costs incurred by holder in such collection. (d) Expenses of Correction by City of Default. In the event of any default by Borrower in the full performance or observance of any covenant or agreement contained in any of the Loan Documents, City may, upon notice to Borrower at the address and in the manner specified in subsection 16.1.1. of this Loan Agreement, at City's sole option (but without any obligation of City to do so), take such steps as reasonably may be deemed by City in its sole discretion, necessary or appropriate to correct or remedy such default in whole or in part, and all costs and expenses incurred by City in taking such steps (including reasonable attorney's fees and court costs) shall, subject to an opportunity to cure such default as provided by subsection 16.1.3. of this Loan Agreement, be due and payable by Borrower, with interest thereon from time of incurrence thereof by City at the maturity rate stated in the Note. The taking of such action shall not be deemed to be a waiver by City of the default of Borrower or a waiver of any other available right or remedy by reason of such default. (e) Expenses of Amendments, Waiver, Consents, and Refinancing. In the event Borrower proposes to take or omit to take any act or action prohibited or required by any provision of the Loan Documents, and Borrower requests City to consent thereto or waive compliance with any such provision, then, in each such case, Borrower will reimburse or pay to 14 City any reasonable expenses incurred by City in connection with such consent or waiver, or such modification or amendment. 10.1.11. Excess Payments. Borrower shall refund to the City within ten working days of the City's request, any sum of money which has been paid by the City and which the City at any time thereafter determines: expenditure. (a) has resulted in overpayment to Borrower; or (b) is not supported by adequate documentation to fully justify the 10.1.12. Disallowed Costs. (a) Should any expense or charge for which payment has been made be subsequently disallowed or disapproved as a result of any auditing or monitoring by the City or HUD, or any other state or federal agency, Borrower will refund, subject to an opportunity to cure such default as provided by subsection 16.1.3. of this Loan Agreement, such amount to the City within ten (10) working days of written notice to Borrower specifying the amount disallowed. (b) Refunds of disallowed costs may not be made from these or any other funds received from or through the City. 10.1.13. Deobligation of Funds. In the event that actual expenditure rates deviate from Borrower's provision of a corresponding level of performance, as specified in the Statement of Work or the Approved Budget, Borrower grants City, subject to an opportunity to cure such default as provided by subsection 16.1.3. of this Loan Agreement, the right to reappropriate or recapture any such under -expended funds for City's use with respect to any other activity or project. 10.1.14. Repair. Borrower will keep the Mortgaged Property in reasonably good order and condition and will make all repairs, replacements, renewals, additions, betterments, improvements, and alterations thereof and thereto, interior and exterior, structural and nonstructural, ordinary and extraordinary, foreseen and unforeseen, which are necessary or reasonably appropriate to keep same in such order and condition. Borrower will prevent any act, occurrence, or neglect, which might impair the value or usefulness of the Mortgaged Property for its intended usage. In instances where repairs, replacements, renewals, additions, betterments, improvements, or alterations are required in and to the Mortgaged Property on an emergency basis to prevent loss, damage, waste, or destruction thereof, Borrower shall proceed to repair, replace, add to, better, improve, or alter same, or cause same to be repaired, replaced, added to, bettered, improved, or altered, notwithstanding anything to the contrary contained in subsection 11.1.2. hereof; provided, however, that in instances where such emergency measures are to be taken, Borrower will notify City in writing of the commencement of same and the measures to be taken, and, when same are completed, the completion date and the measures actually taken. 15 10.1.15. Protection of Lien Status. Borrower will protect and preserve the lien and security interest status of the Security Agreements on the date of execution of this Loan Agreement and will not permit to be created or to exist in respect of the Mortgaged Property or any part thereof, unless agreed to in writing by City, any lien or security interest on a parity with, superior to, or inferior to any of the liens or security interests hereof; except for the Permitted Exceptions in the Deed of Trust. 10.1.16. Insurance. Prior to commencing work with respect to the Mortgaged Property, Borrower, in accordance with the Insurance Requirement and Certificate of Insurance Form, attached hereto and incorporated herein as Exhibit "D" and at Borrower's own expense, will obtain, maintain and keep in full force and effect insurance coverages upon and relating to the Mortgaged Property with such insurers, in such amounts, in such manner, provide such notices and covering such risks as shall be requested by and satisfactory in writing to City. Borrower agrees to procure such required insurance coverages and deliver evidence of such coverages to City as required by the Insurance Requirement. In the event any insurance proceeds with respect to a policy described in the Insurance Requirement are paid, such proceeds thereof shall be paid to City to satisfy the balance owing on the Note at the time of the loss; the remainder of the insurance proceeds to be payable to Borrower. If the proceeds of the insurance together with such other funds as are available to Borrower are sufficient to pay for the restoration of the premises, Borrower may apply such funds to such restoration, provided the procedure to release such insurance proceeds for restoration are agreed to in writing between Borrower and City. It is expressly understood and agreed that the Insurance Requirement represents City's minimum requirements. Further, (i) the insolvency, bankruptcy or failure of any insurance company covering Borrower or the Mortgaged Property, (ii) the failure of any insurance company to pay claims occurring, or (iii) any exclusion from or insufficiency of coverage will not limit the amount of recovery City may have in the event of casualty, damage or other occurrence giving rise to a claim under the insurance provided by Borrower under this Loan Agreement. 10.1.17. Bonding Requirements. (a) Bonds, when required, must be executed on forms furnished by or acceptable to City. Borrower shall furnish City proof of an adequate bond prior to the earlier of (i) thirty (30) calendar days following the Effective Date of this Loan Agreement or (ii) payment of any Loan Proceeds to Borrower by City under this Loan Agreement. (b) If the surety on any bond furnished by Borrower is declared bankrupt or becomes insolvent or its right to do business is terminated in the State of Texas or it ceases to meet the requirements of paragraph (c) below, Borrower must substitute immediately another bond and surety, both of which must be acceptable to City. (c) When Performance Bonds and/or Payment Bonds are required in accordance with this Loan Agreement, each bond must be issued in an amount of one hundred (100) percent of the Note, as security for the faithful performance of all of Borrower's obligations under this Loan Agreement. 16 10.1.18. Condemnation. Borrower will pay, or assign if requested by City, to City to satisfy the balance owing on the Note at the time of receipt of all amounts payable to or received by Borrower from condemnation of all or part of the Mortgaged Property, from private sale in lieu of condemnation, and from damages caused by public works or construction on or near the Mortgaged Property. 10.1.19. Enforcement of Leases. Borrower shall (i) submit any and all proposed Leases to City for approval prior to the execution thereof, (ii) duly and punctually perform and comply with any and all representations, warranties, covenants, and agreements expressed as binding upon the lessor under the Leases, (iii) maintain the Leases in full force and effect during the term thereof, (iv) appear in and defend any action or proceeding in any manner connected with the Leases, (v) deliver to City true, correct and complete copies of the Leases, and (vi) deliver to City such further information, and execute and deliver to City such further assurances and assignments, with respect to the Leases as City may from time to time request. Without City's prior written consent, Borrower shall not (i) do or knowingly permit to be done anything to impair the value of any of the Leases, (ii) except for security or similar deposits, collect any of the Rent more than one (1) month in advance of the time when the same becomes due under the terms of any Lease, (iii) discount any future accruing Rents, (iv) amend, modify, rescind, conceal, surrender or terminate any of the Leases, or (v) assign or grant a security interest in or to any of the Leases and/or Rents except for Permitted Exceptions in the Deed of Trust. 10.1.20. Environmental and Hazardous Substances. Borrower will: (a) not use, generate, manufacture, produce, store, release, discharge, treat, or dispose of on, in, under, from or about the Mortgaged Property or transport to or from the Mortgaged Property any Hazardous Substance or allow any other person or entity to do so; (b) keep and maintain the Mortgaged Property in compliance with, and shall not cause or permit the Mortgaged Property to be in violation of, any Environmental Law; (c) establish and maintain, at Borrower's sole expense, a system to assure and monitor continued compliance with Environmental Laws and the exclusion of Hazardous Substances from the Mortgaged Property, by any and all owners or operators of the Mortgaged Property, which system shall include annual reviews of such compliance by employees or agents of Borrower who are familiar with the requirements of the Environmental Laws. Borrower shall furnish an environmental report or such supplemental report to City within sixty (60) calendar days after City so requests, together with such additional information as City may reasonably request. 10.1.21. Notice of Hearings. Borrower will give City prior notice, in writing, of any public hearing or meeting before any public authority which may, in any manner, affect the Mortgaged Property. 10.1.22. Inspection of Books and Records. Borrower shall allow Monitors from time to time to inspect all books and records relating to Borrower's financial condition and to the Indebtedness, and to make and take away copies of such books and records. If Borrower is a corporation, limited liability company, partnership, joint venture, trust or other type of business 17 association, Borrower shall provide Monitors with any and all financial statements and other documents and make any and all disclosures to Monitors with respect to any of the constituent parties, as Borrower is required to provide and make, and in the manner required to be provided and made, with respect to Borrower pursuant to this subsection 10.1.22. 10.1.23. Monitoring, Inspection and Audit. Borrower will permit Monitors to enter the Land and Improvements at all reasonable times, and inspect the Mortgaged Property with or without prior notice to BorrowerAGAPE. Monitors will have the right, at all reasonable hours and without causing any unreasonable interruption to the operations of Borrower, to carry out monitoring and evaluation activities to ensure adherence by Borrower to the provisions of this Loan Agreement and to ensure that the use of any Loan Proceeds paid to Borrower are for eligible purposes in accordance with the Legal Requirements, to inspect and audit all books, accounts, reports, files, records, contracts, and all other papers relating to the Mortgaged Property, the Project or the use of Loan Proceeds; and to be given free access to the Mortgaged Property for the purpose of such monitoring, inspection or audit and also for the purpose of determining the condition of the premises. In addition, Borrower shall provide to Monitors such audited management letters or financial statements as the Monitors may require in their sole discretion. 10.1.24. Property Reports. With respect to the Project, Borrower will maintain full and accurate books of account and other records reflecting the results of the operations of the Mortgaged Property and will furnish, or cause to be furnished, to City: (i) on or before January 31 of each calendar year during the term of this Loan Agreement, a written report, in a form acceptable to City, (ii) immediate notice of any material adverse change in the Mortgaged Property's financial condition or business prospects or any lapse of coverage with respect to the Insurance Requirement, (iii) all reports required by the Statement of Work, and (iv) upon request of Monitors, and at Borrower's expense, such other operating, financial, insurance coverage and credit information as Monitors may reasonably request with respect to the Mortgaged Property. At any time and from time to time Borrower shall deliver to Monitors such other financial data as Monitors shall reasonably request with respect to the ownership, maintenance, use and operation of the Mortgaged Property, and Monitors shall have the right, at reasonable times and upon reasonable notice, to audit, examine, and make copies or extracts of Borrower's books of account and records relating to the Mortgaged Property to enable the Monitors to comply with its record keeping and reporting obligations and to determine the level and adequacy of the Borrower's compliance with this Loan Agreement, all of which shall be maintained and made available to Monitors for such purpose at the address specified herein for Borrower or at such other location as City may approve. Upon Monitors' request, Borrower shall also furnish Monitors with convenient facilities and all books and records necessary for an audit of such statements. 10.1.25. Annual Inventory. Borrower agrees to provide City during the term of this Loan Agreement with an inventory of the real and personal property acquired in connection with this Loan Agreement no later than October 31 and within thirty (30) calendar days following the termination date of this Loan Agreement. Borrower shall maintain adequate accountability and control over such property, maintain adequate property records in a form acceptable to City, and 18 perform an annual physical inventory which shall be submitted to City on or before October 31 of each year during the term of this Loan Agreement. 10.1.26. Tax on Deed of Trust. If at any time any law shall be enacted imposing or authorizing the imposition of any tax upon the Deed of Trust, or upon any rights, titles, liens, or security interests created by the Loan Documents, or upon the Indebtedness or any part thereof (whether pursuant to the Tax Code or otherwise), Borrower will immediately pay all such taxes, provided that if such law as enacted makes it unlawful for Borrower to pay such tax, Borrower shall not pay nor be obligated to pay such tax. Nevertheless, if a law is enacted making it unlawful for AGAPE to pay such taxes, then AGAPE must prepay the Indebtedness in full within sixty (60) calendar days after demand therefor by City. 10.1.27. Statement of Unpaid Balance. At any time and from time to time, AGAPE will furnish promptly, upon the request of City, a written statement or affidavit, in a form satisfactory to City, stating the unpaid balance of the Indebtedness and that there are no offsets or defenses against full payment of the Indebtedness and the terms hereof, or if there are any such offsets or defenses, specifying them. 10.1.28. HUD Contact. Borrower understands and agrees that all direct contact with HUD, without the written consent of City, over any matter related to the Project or the Mortgaged Property under this Loan Agreement shall be made solely by City. 10.1.29. Advances and Program Income Accounts. (a) Borrower's Accounts. Borrower shall maintain a separate numbered account into which the Initial Advance plus all Advances (but no other funds) will be deposited and against which checks shall be drawn only for payment of bills for expenses incident to the Mortgaged Property and for other items in the Approved Budget (the "Advances Account"). Borrower shall also maintain a separate numbered account into which Receipts (but no other funds) will be deposited and against which checks shall be drawn only for payment of bills for expenses incident to the Mortgaged Property, for payment of any Program Income, if any, due the City under this Loan Agreement, and for other items in the Approved Budget (the "Program Income Account"). (b) Status of Accounts following an Event of Default. After an Event of Default, the City may apply any funds on deposit in the Advances Account and the Program Income Account to the satisfaction of any covenant or condition hereof. (c) Advances Account and Program Income Account Covenants. Borrower further covenants that with respect to the Advances Account and the Program Income Account: (i) such accounts shall contain only the funds received pursuant to this Loan Agreement and that no other funds shall be mingled with funds in such account. Borrower shall support all checks and withdrawals from said accounts with itemized documentation of costs under this Loan Agreement; 19 with the City; (ii) if required by City, such accounts shall be joint accounts (iii) City shall have the right at any time to enforce its right to recapture any funds in the accounts as provided in subsection 10.1.13. of this Loan Agreement without any notice or other obligation to Borrower; (iv) City shall have a lien upon any balance in said accounts paramount to all other liens, which lien shall secure the repayment of any Initial Advance, excess payment, disallowed costs or other amounts due City hereunder. Borrower further covenants that it will execute any and all security agreements and other documents the City determines necessary to evidence said lien; and (v) the accounts shall be maintained under conditions approved by City, in a financial institution, with federal deposit insurance coverage and the balance, if any, exceeding the federal deposit insurance coverage shall be collaterally secured. (d) Program Income. Borrower shall report to City all program income received or accrued within thirty (30) calendar days following the end of Borrower fiscal year during the term of the Loan. Alternative arrangements to this requirement may be made upon written request to and approval by the City. (i) Records of the receipt and disposition of program income must be maintained by Borrower in the same manner as required for other Loan Agreement funds, and reported to the City in the format prescribed by the City. The City shall deposit in its CDBG program income account all program income funds remitted to the City under the Loan Documents by Borrower and may use the funds for any CDBG eligible activity as provided in 24 CFR § 570.504(b). (ii) It is Borrower's responsibility to obtain from the City a prior determination as to whether or not income arising directly or indirectly from this Loan Agreement, or the performance of any obligations under the Loan Document, is program income. The City has final authority to make a determination as to whether such income is program income or not. Borrower is responsible to the City for the repayment of any and all amounts determined by the City to be program income in accordance with this subsection 10.1.29.(d), unless otherwise approved in writing by the City. (iii) Borrower shall include this subsection 10.1.29.(d) in its entirety in all of its sub -contracts with a HUD Borrower which involve other income-producing services or activities. 10.1.30. Deposit Account Security Agreement. Borrower agrees upon receipt of any Program Income to immediately enter into a Deposit Account Security Agreement with the City and deposit all program income into the Program Income Account created by the Deposit Account Security Agreement. 20 10.1.31. Ownership of Property. Title of all notes receivable, capital acquisitions, supplies, materials or any other property purchased with funds received under this Loan Agreement and in accordance with the provisions of this Loan Agreement, is vested with Borrower and possession of such property shall, upon termination of this Agreement, revert to City unless otherwise provided for by City in writing. It is understood by Borrower that City shall retain a second lien position on any and all real property purchased with funds under this Agreement, unless otherwise provided for by City. Borrower shall take all necessary and reasonable steps to ensure City the lien position. Written notification must be given to City within five (5) calendar days of delivery of non -expendable property in order for City to effect identification and recording for inventory purposes. Borrower shall maintain adequate accountability and control over such property, shall maintain adequate property records and perform an annual physical inventory. 10.1.32. Reversion of Assets. Upon expiration of this Loan Agreement, the Mortgage Property is either (i) used to meet one of the national objectives set forth in 24 CFR 570.201 until five (5) years after expiration of the term of this Loan Agreement, or (ii) if the property is not used in accordance with this subsection 10.1.32. of this Loan Agreement, Borrower shall pay City an amount equal to the current market value of the property less any portion of the value attributable to expenditures of non-CDBG funds for the acquisition of, or improvement to, the Property. 10.1.33. Confidentiality. Borrower agrees, at all times, to keep confidential all client and personnel identifying information and any information received by Borrower unless required by law to release such information. 10.1.34. Conflict of Interest. (a) Borrower covenants that neither it nor any member of its governing body presently has any interest or shall acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Loan Agreement. Borrower further covenants that in the performance of this Loan Agreement no person having such interest shall be employed or appointed as a member of its governing body. (b) Borrower further covenants that no member of its governing body or its staff or employees shall possess any interest in or use their position for a purpose that is or gives the appearance of being motivated by desire for private gain for themselves, or others; particularly those with which they have family, business, or other ties. (c) No officer, member, or employee of City and no member of its governing body who exercises any functions or responsibilities in the review or approval of the undertaking or carrying out of this Agreement, shall (i) participate in any decision relating to this Loan Agreement which affects his personal interest or the interest of any corporation, partnership, or association in which he has a direct or indirect interest, or (ii) have any interest, direct or indirect, in this Loan Agreement or the proceeds thereof. 21 (d) However, in the event Borrower determines that exception to HUD's conflict of interest requirements is appropriate and in accordance with 24 CFR §570.611(d), Borrower may prepare the documentation required by this HUD provision and transmit such material to City. Upon receipt, City may submit the request to HUD for a determination. The parties agree to accept the final HUD determination. 10.1.35. Nepotism. Borrower shall not employ in any paid capacity any person who is a member of the immediate family of: (i) a person who is currently employed by Borrower, or (ii) a current City employee who has discretionary authority with respect to this Loan Agreement, or (iii) a member of the City or Borrower's governing body, without prior written approval by City. The term "member of the immediate family" includes: wife, husband, son, daughter, mother, father, brother, sister, grandfather, grandmother, grandson, granddaughter, brother-in-law, sister -in law, son-in-law, daughter-in-law, mother-in-law, father-in-law, aunt, uncle, nephew, niece, first cousin, stepparent, stepchild, half-brother, and half-sister. 10.1.36. Contract Close Out. The contract close out package, together with a final Payment Request, for the time period covered by the last invoice requesting an Advance, shall be submitted by Borrower to the City with respect to the Project within ninety (90) calendar days following the close of the term of this Loan Agreement, unless extended in writing by the City, using the format as provided to Borrower by the City. 10.1.37. Audit. Borrower agrees to comply with the audit requirements of OMB Circular No. A-133, as amended, covering Borrower's fiscal year until the termination of this Loan Agreement. 10.1.38. Disclosures. If at any time Borrower shall become aware of the existence or occurrence of any financial or economic conditions or natural disasters which might have a Material Adverse Effect, Borrower shall promptly notify City of the existence or occurrence thereof, unless City has actual notice thereof, and of Borrower's opinion as to what effect such may have on the Mortgaged Property or Borrower. Borrower shall also give prompt notice to City, unless City has actual notice thereof, of (i) the serious illness or death of any principal or key employee of Borrower, (ii) any litigation or dispute, threatened or pending against or affecting Borrower, a Signatory Party, or the Mortgaged Property which could have a Material Adverse Effect, (iii) any Event of Default, (iv) any default by Borrower or any acceleration of any indebtedness owed by Borrower under any contract to which Borrower is a party, and (v) any change in the character of Borrower's business as it existed on the date hereof which could have a Material Adverse Effect. 10.1.39. Itemized Statements. During the construction of any Improvements to the Mortgaged Property, Borrower will furnish from time to time, whenever requested, statements showing itemization of prospective expenditures, expenditures to date, items due and unpaid, and itemized statements with receipted bills and other evidence reasonably satisfactory to City. All records required to be retained shall be retained for a period of five years from the date of the record. 22 10.1.40. Filing Documents. Borrower will file for record the Security Agreements that establish valid lien(s) or restrictions on the Mortgaged Property, free and clear of all liens and encumbrances, except liens for taxes not yet due and Permitted Exceptions in the Deed of Trust. 10.1.41. Rights to Proposal and Contractual Material. All reports, charts, schedules, data stored on computer disk, or other appended documentation to any proposal, content of basic proposal, or contracts and any responses, inquiries, correspondence, and related material prepared or submitted by Borrower (including, without limitation, Borrower's independent professional associates and consultants and subcontractors), except as required by subsection 10.1.42., shall become the property of City, whether the Project is completed or not. Upon this Loan Agreement's expiration or termination City may require any or all of these items to be delivered to City upon written notice to Borrower. However, Borrower has the right to use such proposal and contractual material. 10.1.42. Copyrights and Rights in Data. Where activities supported by this Project produce original computer programs, writings, sound recordings, pictorial reproduction, drawings, or other graphical representation and works of any similar nature (the term computer program includes executable computer programs and supporting data in any form), City has the right to use, duplicate, and disclose, in whole or in part, in any manner, for any purpose whatsoever and have others do so. If the material is copyrightable, Borrower may copyright such, and City reserves a royalty -free, non-exclusive, and irrevocable license to reproduce, publish and use such materials, in whole or in part and to authorize others to do so. 10.1.43. Publications. All published material and written reports submitted under this Project must be originally developed material unless otherwise specifically required. When material, not originally developed, is included in a report, it shall have the source identified. This identification may be in the body of the report or by footnote. This provision is applicable when the material is in a verbatim or extensive paraphrase format. 10.1.44. Publicity. Where such action is appropriate as determined by City, Borrower shall publicize the activities conducted by Borrower under this Loan Agreement. Any news release, sign, brochure, or other advertising medium disseminating information prepared by or distributed for Borrower shall contain a statement that the project is made possible by funding from the U.S. Department of Housing and Urban Development through the City of Round Rock. 10.1.45. Delivery of Contracts. If requested by City, Borrower will deliver to City a true, correct and complete copy of each Contract within five (5) calendar days after the request. Within ten (10) calendar days after a request by City, Borrower shall prepare and deliver to City a complete listing of all Contracts, showing date, term, parties, subject matter, whether any defaults exist, and other information specified by City, of or with respect to each of such Contracts, together with a true, correct and complete copy thereof (if so requested by City). 10.1.46. Women- and Minority -Owned Businesses (W/MBE). Brower will use its best efforts to afford small businesses, minority business enterprises, and women's business enterprises the maximum practicable opportunity to participate in the performance of this 23 Agreement. As used in this Agreement, the terms "small business' means a business that meets the criteria set forth in section 3(a) of the Small Business Act, as amended (15 U.S.C. 632), and "minority and women's business enterprise" means a business at least fifty-one (51) percent owned and controlled by minority group members or women. For the purpose of this definition, "minority group members" are Afro-Americans, Spanish-speaking, Spanish surnamed or Spanish -heritage Americans, Asian -Americans, and American Indians. Borrower may relay on written representations by businesses regarding their status as minority and female business enterprises in lieu of an independent investigation. 10.1.47. Further Assurances and Corrections. From time to time, at the request of City, Borrower will (i) promptly correct any defect, error, or omission which may be discovered in the contents of this Loan Agreement or in any other Loan Document or in the execution or acknowledgment thereof; (ii) execute, acknowledge, deliver, record and/or file such further instruments (including, without limitation, amendments to this Loan Agreement, further deeds of trust, security agreements, financing statements, continuation statements and assignments of rents) and perform such further acts and provide such further assurances as may be necessary, desirable, or proper, in City's opinion, to carry out more effectively the purposes of this Loan Agreement and the Loan Documents and to subject to the absolute assignments, liens and security interests hereof and thereof any property intended by the terms hereof or thereof to be covered hereby or thereby, including without limitation, any renewals, additions, substitutions, replacements, or appurtenances to the Mortgaged Property; (iii) execute, acknowledge, deliver, procure, file, and/or record any document or instrument (including without limitation, any financing statement) deemed advisable by City in City's sole discretion to protect the liens and the security interests herein granted against the rights or interests of third persons; and (iv) pay all costs connected with any of the foregoing. ARTICLE XI Negative Covenants 11.1. Negative Covenants. Borrower hereby unconditionally covenants and agrees with City until the entire Indebtedness shall have been paid in full and all of the Obligations shall have been fully performed and discharged as follows: 11.1.1. Use Violations. Borrower will not use, maintain, operate, or occupy, or allow the use, maintenance, operation, or occupancy of, the Mortgaged Property in any manner which (i) violates any Legal Requirement, (ii) may be dangerous, unless safeguarded as required by law and/or appropriate insurance, (iii) constitutes a public or private nuisance, (iv) without the prior written consent of City, generates revenue from any program which is for the purpose of housing persons recently released from prison, in a halfway -house, or who are parolees or are under mandatory supervision, or similar programs, or (v) makes void, voidable, or cancelable, or increases the premium of, any insurance then in force with respect thereto. 11.1.2. Waste: Alterations. Borrower will not commit or permit any waste or impairment of the Mortgaged Property and will not (subject to the provisions of subsections 2.4. and 10.1.14. hereof) without the prior written consent of City, make or permit to be made any alterations or additions to the Mortgaged Property of a material nature. 24 11.1.3. Replacement of Fixtures and Personalty. Borrower will not, without the prior written consent of City, permit any of the Fixtures or Personalty to be removed at any time from the Land or Improvements unless the removed item is removed temporarily for purposes of maintenance and repair or, if removed permanently, is replaced by an article of equal suitability and value, owned by Borrower, free and clear of any lien or security interest except as may be approved in writing by City. 11.1.4. Change in Zoning: Borrower will not (i) seek or acquiesce in a zoning reclassification, zoning variance or special exception to zoning of all or any portion of the Mortgaged Property, (ii) grant or consent to any dedication, plat, or restriction (or allow any easement to become enforceable by prescription), (iii) seek or acquiesce to any imposition of any addition of a Legal Requirement or any amendment or modification thereof, covering all or any portion of the Mortgaged Property, without City's prior written consent which will be granted or denied within thirty (30) working days following receipt of the proposed reclassification, variance, exception or other request. 11.1.5. No Drilling. Borrower will not, without the prior written consent of City, permit any drilling or exploration for or extraction, removal, or production of, any Minerals from the surface or subsurface of the Land regardless of the depth thereof or the method of mining or extraction thereof. 11.1.6. Additional Obligations. Except as necessary to complete the Project, Borrower shall not create or incur any additional liability, whether contingent or non -contingent, with respect to the Mortgaged Property that is secured by a lien on the Mortgaged Property, except as specifically allowed or contemplated pursuant to the Loan Documents or, in writing, by the City. ARTICLE XII Events of Default 12.1. Events of Default. The principal indebtedness evidenced by the Note or the unpaid balance thereof at the time outstanding, shall be due and payable at the election of the City if any one or more of the following events shall occur for any reason whatsoever, and whether such occurrences shall be voluntary, involuntary or come about or be effected by operation of law, or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or Governmental Authority and is not cured or corrected within the times and in the manner required to cure or correct such event of default by Borrower as required by subsection 16.1.3. of this Loan Agreement: 12.1.1. Payment of Indebtedness. Default shall be made in the timely and complete payment (by payment or by credit as provided in the Note) of any installment or portion of the Indebtedness as and when the same shall become due and payable, whether at the due date thereof stipulated in the Loan Documents, upon acceleration or otherwise; or 25 12.1.2. False Representation. Any representation or warranty made by the Borrower herein or any statement or representations made in any certificate, statement or opinion delivered to the City pursuant to this Loan Agreement, the Note, or any other Loan Documents shall prove to have been incorrect in any material respect as of the date made; or 12.1.3. Performance of Obligations. Default shall be made in the performance or observance of any of the Obligations; or 12.1.4. Default Under Other Lien Documents. Borrower shall default or commit an event of default under and pursuant to any other mortgage or security agreement which covers or affects any part of the Mortgaged Property; or 12.1.5. Abandonment. Borrower abandons or removes all or substantially all of the Improvements, Personalty or Fixtures without written approval from the City; or 12.1.6. Discontinuance of Operations. Borrower vacates, or discontinues operations of or from, any substantial portion of the Mortgaged Property without written approval from the City; or 12.1.7. Bankruptcy or Insolvency. Borrower shall admit in writing its inability to pay its debts generally as they become due, make an assignment for the benefit of creditors, file a petition in bankruptcy, be adjudicated insolvent or bankrupt, petition or apply to any tribunal for the appointment of any receiver or trustee thereof or of any substantial part of its property or commence any proceedings under any arrangement, readjustment of debt, or statute of any jurisdiction, whether now or hereafter in effect; or there is commenced against Borrower any such proceeding which remains undismissed for a period of thirty (30) calendar days; or 12.1.8. Receivership. Borrower by any act indicates its consent to, approval of or acquiescence in any such proceeding or in the appointment of any receiver or of any trustee for Borrower with respect to a substantial part of its property; or 12.1.9. Inability to Pay Judgment. If any final judgment for the payment of money that is not fully covered by liability insurance and is in excess of $10,000.00 shall be rendered against the Borrower concerning a claim filed with respect to the Mortgaged Property and not discharged within thirty (30) calendar days from the date of final disposition thereof including the exhaustion of all appellate rights; or 12.1.10. Non-compliance with Loan Documents. If Borrower defaults, breaches, or commits an event of default that is uncured pursuant to any other Loan Document; or 12.1.11. Insurance not Maintained. If Borrower does not keep in full force and effect or any agreement with a contractor of Borrower constructing Improvements or installing Personalty does not require such contractor to keep in full force and effect any insurance coverages required by the Insurance Requirement of this Loan Agreement. 26 ARTICLE XIII Remedies 13.1. Remedies in the Event of Default. Upon the occurrences of any Event of Default as stated in Article XII of this Loan Agreement, and subject to the limitations of liability described in Section 14.1. of this Loan Agreement, City may at any time, and without further notice take any or all of the following action: 13.1.1. If Borrower fails to cure such Event of Default within the time period provided by subsection 16.1.3. of this Loan Agreement: (a) demand repayment of the Note and Borrower shall remit such amount to City within ten (10) calendar days thereof; (b) cancel, suspend or terminate payment of any funds due Borrower under this Loan Agreement; (c) cancel, suspend or terminate this Loan Agreement in whole or part; (d) initiate legal action and foreclose under any deed of trust or security agreement; and (e) pursue such other measures as may be lawful, including suing for specific performance, for the recovery of damages and for the release or return of all or part of the funds committed herein. 13.1.2. If the Event of Default is material, in addition to the remedies described in subsection 13.1.1. and any and all other rights, remedies and recourses available to it under any of the Loan Documents or otherwise available at law or in equity: (a) suspend payment of any funds due the Borrower under this Loan Agreement; (b) suspend the right of the Borrower to incur any additional obligations under this Loan Agreement in whole or part; or (c) suspend the right of the Borrower to continue any performance under this Loan Agreement in whole or part. ARTICLE XIV Indemnification 14.1. Nonrecourse Liability of the Borrower. Notwithstanding any provision or obligation to the contrary set forth in any other section of this Loan Agreement, (i) the liability for the 27 payment of any amounts by the Borrower parties under this Loan Agreement, or the Loan Documents, shall be limited to the Mortgaged Property subject to the Security Agreements or to such other security as may from time to time be given or have been given for payment of the Obligations, and any judgment rendered against the Borrower parties under this Loan Agreement, or the Security Agreements shall be limited to the Mortgaged Property subject to the Security Agreements and any other security so given for satisfaction thereof; and (ii) no deficiency or other personal judgment shall be sought or rendered against the Borrower parties, their successors, transferees or assigns, in any action or proceeding arising out of this Loan Agreement, the Security Agreements, or any judgment, order or decree rendered pursuant to any such action or proceeding; provided, however, that nothing in this Loan Agreement, or the Security Agreements, shall limit the City or Trustee's ability to exercise any right or remedy that it may have with respect to any property pledged or granted to the City or Trustee, subject to the non-recourse provisions provided hereunder, or to exercise any right against the Borrower parties or any other person or entity on account of any damage caused by fraud or intentional misrepresentation by the Borrower or other Borrower parties or any intentional damage of the Mortgaged Property is found. Furthermore, the Borrower and other Borrower parties shall be fully liable for the misapplication of (i) proceeds paid prior to any foreclosure under any and all insurance policies, under which the City is named as insured, by reason of damage, loss or destruction to any portion of the Mortgaged Property, to the full extent of such misapplied proceeds and awards, (ii) proceeds or awards resulting from the condemnation, or other taking in lieu of condemnation, prior to any foreclosure of the Mortgaged Property, to the full extent of such misapplied proceeds and awards, (iii) rents, issues, profits and revenues received or applicable to a period prior to foreclosure, and (iv) proceeds from the sale of all or any part of the Mortgaged Property and any other proceeds that, under the terms hereof, should have been paid to the City or Trustee. The limit on the Borrower's liability set forth in this Section 14.1. shall not, however, be construed, and is not intended in any way, to constitute a release, in whole or in part, of the Obligations hereunder or a release, in whole or in part, or an impairment of the lien and security interest of the Security Agreements, or to preclude the City or Trustee from foreclosing the Security Agreements in case of any default or enforcing any other right of the City or Trustee or to alter, limit or affect the liability of any person or party who may now or hereafter or prior hereto guarantee, pledge, grant or assign its assets or collateral as security for, the Obligations under this Loan Agreement or the Loan Documents. 14.2. Hold Harmless and Indemnity. 14.2.1. Borrower shall perform all duties hereunder as an independent contractor and any of its employees performing work required by this Loan Agreement shall be deemed solely employees of Borrower or its subcontractor. Subject to Article XIV, Borrower shall save and hold harmless City, its officers, agents, and employees from any and all liability of any nature or kind on account of any claims, audit exceptions, demands, suits, or damages including reasonable attorneys' fees and court costs arising or resulting from injuries or damages sustained by any persons or property resulting in whole or in part from the performance or omissions of any employee, agent, or representative of Borrower. 28 14.2.2. Borrower undertakes to indemnify City from any and all liability, loss or damages City may suffer as a result of claims, demands, costs, or judgements against it arising out of the performance of the terms of this Loan Agreement. ARTICLE XV Waiver of Notice 15.1. Waiver of Notice. The Borrower hereby expressly waive any requirement for presentation, demand, protest, notice of protest or other notice or dishonor of any kind, other than the notice specifically provided for in this Loan Agreement. ARTICLE XVI Notices 16.1. Notices. 16.1.1. All notices, demands and communications provided for herein or made hereunder shall be delivered, or sent by certified mail, return receipt requested, addressed in each case as follows, until some other address shall have been designated in a written notice to the other party hereto given in like manner: If intended for Borrower: AGAPE Preganancy Resource Center Attn: Jo Markham Director of Development 104 E. Main Street Round Rock, Williamson County, Texas 78664 If intended for City: City of Round Rock Attn: Mona Ryan Community Development Coordinator Round Rock, Williamson County, Texas 78664 With a copy to: Sheets & Crossfield, P.C. Attn: Stephan L. Sheets City Attorney 309 East Main Street Round Rock, Williamson County, Texas 78664 16.1.2. and shall be deemed to have been given or made when so delivered or mailed, except as herein otherwise expressly provided. Notification of a change of address shall be delivered to City and Borrower within ten (10) calendar days of such change of address. 16.1.3. Notwithstanding anything herein contained in this Loan Agreement, the Note or the Loan Documents securing same to the contrary, it is agreed that City shall not declare any amounts owing in the Note immediately due and payable if default is made in the payment of any installment of principal or interest thereon, as and when the same is or becomes due, unless any such default has not been fully cured within ten (10) calendar days after notice of 29 such default shall have been given to Borrower. Further, notwithstanding anything herein to the contrary, it is agreed that the City shall not declare any amounts owing on the Note immediately due and payable in the event of a default or breach by Borrower of any of the covenants or obligations herein contained or contained in any instrument securing the payment of the Note or executed in connection herewith other than the covenant to timely pay installments of principal and interest on the Note, unless any such default has not been fully cured within thirty (30) calendar days after notice of such default or breach shall have been given to Borrower; provided, however, if Borrower commences the process of curing such default and notifies City of such action within such thirty day period, or within any subsequent thirty day period, and proceeds diligently and continuously toward fully curing such default, Borrower shall have an additional period, in increments of thirty (30) calendar days each, up to ninety (90) calendar days to fully cure such default. Any such notice shall be given in writing and shall be deemed to be given three (3) calendar days after the date such notice is deposited, postage prepaid, via certified mail, return receipt requested, in the U.S. mail addressed to Borrower at the address set forth in subsection 16.1.1. of this Loan Agreement. ARTICLE XVII Miscellaneous Provisions 17.1. Survival of Representations Covenants and Warranties. All representations, covenants and warranties contained herein shall survive the execution and delivery of the Loan Documents, any investigation at any time made by the City or on its behalf, and any sale or transfer of the Loan Documents. 17.2. Construction and Amendment. The Loan Documents constitute the entire agreement between the parties pertaining to the subject matter hereof and supersede all prior and contemporaneous agreements and understandings of the parties in connection therewith. These Loan Documents may not be changed, amended or terminated orally but only by agreement in writing and signed by the party against whom enforcement of any change, amendment or termination is sought. 17.3. Force Majeure. 17.3.1. The failure of a party to perform its obligations hereunder shall be excused to the extent, and for the period of time, such failure is caused by the occurrence of an event of Force Majeure. Force Majeure shall mean acts and events not within the control of the party claiming suspension, and which that party has been unable by the exercise of due diligence to avoid or prevent. Events of Force Majeure include, without limitation: Acts of God; strikes, lockouts or other industrial disputes; inability to obtain material, equipment or labor; epidemics, civil disturbances, acts of domestic or foreign terrorism, wars, riots or insurrections; landslides, lightning, earthquakes, fires, storms, floods or washouts; arrests and restraint of rulers and people; interruptions by government or court orders; present or future orders of any regulatory body having proper jurisdiction and authority; explosions; and breakage or accident to machinery. Force Majeure does not include economic or market conditions which affect a party's cost, but not its ability, to perform. 30 17.3.2. Nothing contained herein shall be construed to require a party to settle a strike or other labor dispute against its will. 17.3.3. The party invoking Force Majeure shall give prompt, timely and adequate notice to the other party, by facsimile transmission or telephone confirmed promptly thereafter in the manner and at the address set forth in subsection 16.1.1. of this Loan Agreement, and shall use due diligence to remedy the event of Force Majeure, as soon as reasonably possible. 17.4. Payment. The Borrower will pay to City at its notice address specified in subsection 16.1.1. of this Loan Agreement, or at such other address as it may designate in writing, all amounts payable with respect to the Loan Documents. 17.5. Successor and Assigns. All covenants, agreements, representations and warranties made in the Loan Documents or in certificates delivered in connection herewith shall, whether so expressed or not, bind and inure to the benefit of the successors and permitted assigns of the Borrower and City. 17.6. Counterparts. These Loan Documents may be executed in multiple originals. 17.7. Severability. In the event that any provisions of the Loan Documents or any other instrument executed at closing or the application thereof to any person or circumstances shall be declared to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remainder of such provisions and agreements shall nevertheless remain in full force and effect; and to this end, the provisions of all covenants, conditions and agreements described herein are deemed severable for this purpose. 17.8. No Waiver; Remedies Cumulative. No exercise, partial exercise, failure, forbearance or delay on the part of the City in exercising any power or right under the Loan Documents shall operate as a waiver of the power or right, except as specifically provided herein. No remedy conferred in the Loan Documents is intended to be exclusive of any other remedy, and each and every other remedy given hereunder or now or hereafter existing at law or in equity by statute or otherwise, may be sought by the enforcing party. 17.9. Execution by Additional Parties. When any Signatory Party joins in the execution of any of the Loan Documents, said party has done so for the purpose of consenting to all of the terms and conditions in such instrument and agrees by such execution to be bound hereby. 17.10. Survival of Obligations. All obligations of Borrower under the Loan Documents, which have not been fully performed, paid and satisfied at the termination of this Loan Agreement, shall survive the termination. 17.11. Alternative Dispute Resolution. City and Borrower shall submit in good faith to mediation before filing a suit for damages under this Loan Agreement. 31 17.12. Governing Law. The Loan Documents shall be governed by and interpreted in accordance with the laws of the State of Texas. Although drafted by the City, the Loan Documents shall be fairly construed, neither more strongly for nor against any party. 17.13. Performance; Venue. The Loan Documents shall be performed in Williamson County, Texas. Venue shall be in Williamson County, Texas. EXECUTED AND DELIVERED effective as of the date first above written. Borrower: AGAPE Pregnancy Resource Center BY: NAME: TITLE: City: City of Round Rock BY: Nyle Maxwell, Mayor A I"I`EST: Christine R. Martinez City Secretary Attached Exhibits: EXHIBIT A EXHIBIT B - EXHIBIT C - EXHIBIT D - EXHIBIT E - EXHIBIT F - EXHIBIT G - - Definitions Statement of Work Approved Budget Insurance Requirement Self Certification Form Client Data / Beneficiary Report Form Federal Labor Standard Provisions and Payroll Form PREPARED IN THE LAW OFFICE OF: Sheets & Crossfield, P.C. 309 East Main Street Round Rock, TX 78664 APPROVED AS TO FORM: Stephan L. Sheets, City Attorney 32 Exhibit "A" DEFINITIONS (1) Advance: An advance of Loan Proceeds under the Loan Agreement to the Borrower from the City for the reimbursement of expenditures in connection with the Project. (2) Advances Account: The joint account into which Advances (but not Receipts) are deposited and against which checks are drawn as described in the Loan Agreement. (3) Approved Budget: The budget setting forth the Borrower's expenses in connection with the Project and set forth in Exhibit "C" which is attached to the Loan Agreement. (4) Borrower: The entity identified in the first paragraph of the Loan Agreement and any Signatory Party. (5) CERCLA: The Comprehensive Environmental Response, Compensation and Liability Act. (6) C.F.R.: The Code of Federal Regulations. (7) City Ordinances: Any and all ordinances of the City of Round Rock Code of Ordinances, provided any subsequently enacted ordinance does not unconstitutionally impair the rights of Borrower under the Loan Agreement. (8) Commercial Code: The Uniform Commercial Code, Title 1, Texas Business and Commerce Code, as amended from time to time. (9) Compliance Affidavit: The affidavit in a form acceptable to City, executed by Borrower and evidencing payment of contractors and subcontractors with respect to a Draw Request form. (10) Contractor: The entity with which Borrower enters into a construction agreement as the prime contractor to construct the Project. (11) Contracts: All of the right, title, and interest of Borrower, including equitable rights, in, to, and under any and all (i) contracts for the purchase of all or any portion of the Mortgaged Property, whether such contracts are now or at any time hereafter existing, including but without limitation, any and all earnest money or other deposits escrowed or to be escrowed or letters of credit provided or to be provided by the purchasers under such contracts, including all amendments and supplements to and renewals and extensions of such contracts at any time made, and together with all payments, earnings, income, and profits arising from the sale of all or any portion of the Mortgaged Property or from such contracts and all other sums due or to become due under and pursuant thereto and together with any and all earnest money, security, letters of credit or other deposits under any such contracts; (ii) contracts, licenses, permits, and rights relating to living unit equivalents or other entitlement for water, wastewater, and other utility services whether executed, granted, or issued by a private person or a governmental or 1 quasi -governmental agency, which are directly or indirectly related to, or connected with, the development, ownership, maintenance or operation of the Mortgaged Property, whether such contracts, licenses, and permits are now or at any time thereafter existing, including without limitation, any and all rights of living unit equivalents or other entitlement with respect to water, wastewater, and other utility services, certificates, licenses, zoning variance, permits, and no - action letters from each governmental authority required: (a) to evidence compliance by Borrower and all improvements constructed or to be constructed on the Mortgaged Property with all Legal Requirements applicable to the Mortgaged Property, and (b) to develop and/or operate the Mortgaged Property as a commercial and/or residential project, as the case may be; (iii) any and all right, title, and interest Borrower may have in any financing arrangements relating to the financing of or the purchase of all or any portion of the Mortgaged Property by future purchaser; and (iv) all other contracts which in any way relate to the use, enjoyment, occupancy, operation, maintenance, repair, management or ownership of the Mortgaged Property (save and except any and all Leases), including but not limited to maintenance and service contracts and management agreements. (12) Debtor Relief Laws: Title 11 of the United States Code, as now or hereafter in effect, or any other applicable law, domestic or foreign, as now or hereafter in effect, relating to bankruptcy, insolvency, liquidation, receivership, reorganization, arrangement or composition, extension or adjustment of debts, or similar laws affecting the rights of creditors. (13) Deed of Trust: That certain deed of trust conveying the Mortgaged Property to the Trustee in such form as is acceptable to the City, dated even date with the Loan Agreement, incorporated herein by reference, executed by Borrower, and securing the payment of the Indebtedness and the performance and discharge of the Obligations for the benefit of City. (14) Disposition: Any sale, lease (except as permitted under the Security Agreements), exchange, assignment, conveyance, transfer, trade, or other disposition of all or any portion of the Mortgaged Property (or any interest therein) or all or any part of the beneficial ownership interest in Borrower (if Borrower is a corporation, partnership, general partnership, limited partnership, joint venture, trust, or other type of business association or legal entity). (15) Draw Request: The written request filled out, signed and submitted to City by Borrower in a form accepted by the City which requests payment of expenses incurred with respect to the Project as required in the Loan Agreement, authorized by the Approved Budget. (16) Eligible Person: A "low- and moderate -income household" or a "low- and moderate - income person" as defined at 24 C.F.R. §570.3. (17) Environmental Law: Any federal, state, or local law, statute, ordinance, or regulation, whether now or hereafter in effect, pertaining to health, industrial hygiene, or the environmental conditions on, under, or about the Mortgaged Property, including without limitation, the following, as now or hereafter amended: Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq.; Resource, Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq. as amended by the Superfluid Amendments and Reauthorization Act of 1986 ("SARA"), Pub. L. 99-499, 100 Stat. 2 1613; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. § 1101 et seq.; Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq.; Clean Air Act ("CAA"), 42 U.S.C. § 7401 et seq.; Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. § 1251 et seq.; and any corresponding state laws or ordinances including but not limited to the Texas Water Code ("TWC") § 26.001 et seq.; Texas Health & Safety Code ("THSC") § 361.001 et seq.; Texas Solid Waste Disposal Act, Tex. Rev. Civ. Stat. Ann. art. 4477-7; and regulations, rules, guidelines, or standards promulgated pursuant to such laws, statutes and regulations, as such statutes, regulations, rules, guidelines, and standards are amended from time to time. (18) Event of Default: Any happening or occurrence described as an "Event of Default" in the Loan Agreement. (19) Federal Funds: Amounts received by the City from HUD in connection with a federal program described in the HUD Law. (20) Federal Requirements: Any and all applicable provisions of the HUD Law and the Code of Federal Regulations for projects receiving funding that is authorized by the HUD Law. It is expressly understood that any changes in these agreements or regulations are automatically incorporated herein without specific reference. Without limiting the foregoing and to the extent applicable, the term includes, without limitation, strict compliance with: (a) the uniform administrative requirements described in 24 C.F.R. §570.502; (b) the Single Audit Act of 1984, OMB Circular A-133 (Audits of States, Local Governments, and Non -Profit Organizations), and the requirements of 24 C.F.R. Parts 44 and 45, as applicable; (c) all program requirements described in 24 C.F.R. Part 570, Subparts A, C, and K, except for City of Round Rock's environmental responsibilities described in 24 C.F.R. §570.602(d) and the City of Round Rock's responsibilities for initiating the review process under the provisions of 24 C.F.R. Part 58; (d) the employment opportunities for businesses and lower income persons described in 24 C.F.R. Part 135, including requiring each of its subcontractors carrying out work in connection with the Project to comply with, in particular, the assurances set forth at 24 C.F.R. § 135.38: (i) The work to be performed under the Loan Agreement is subject to the requirements of section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (section 3). The purpose of section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD -assisted projects covered by section 3, shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly persons who are recipients of HUD assistance for housing; 3 (ii) The Borrower will comply with HUD's regulations in 24 C.F.R. part 135, which implement section 3. As evidenced by their execution of the Loan Agreement, the parties to the Loan Agreement certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations; (iii) The Borrower will send to each labor organization or representative of workers with which the Borrower has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the Borrower's commitments under this section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the section 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions, and the anticipated date the work shall begin; (iv) The Borrower will include this section 3 clause in every subcontract subject to compliance with regulations in 24 C.F.R. part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 C.F.R. part 135. The Borrower will not subcontract with any subcontractor where the Borrower has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 C.F.R. part 135; (v) The Borrower will certify that any vacant employment positions, including training positions, that are filled (1) after the Borrower is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 C.F.R. part 135 require employment opportunities to be directed, were not filled to circumvent the Borrower's obligations under 24 C.F.R. part 135; (vi) Noncompliance with HUD's regulations in 24 C.F.R. part 135 may result in sanctions, termination of the Loan Agreement for default, and debarment or suspension from future HUD assisted contracts; (vii) With respect to work performed in connection with section 3 covered Indian housing assistance, section 7(b) of the Indian Self -Determination and Education Assistance Act (25 U.S.C. 450e) also applies to the work to be performed under the Loan Agreement. Section 7(b) requires that to the greatest extent feasible (i) preference and opportunities for training and employment shall be given to Indians, and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian -owned Economic Enterprises. Parties to the Loan Agreement that are subject to the provisions of section 3 and section 7(b) agree to comply with section 3 to the maximum extent feasible, but not in derogation of compliance with section 7(b); §85.44; (e) the requirements for grant -enforcement remedies found in 24 C.F.R. §85.43 and 4 (f) the requirement that the funds provided hereunder for the implementation of the Project are in conformance with all federal laws and rules pertaining to the use of the funds as authorized under 24 C.F.R. §§570.201(c) and 570.208(a)(1); and (g) the requirement that the Project is not an ineligible activity as defined in 24 C.F.R. §570.207. (21) Fixtures: All materials, supplies, equipment, systems, apparatus, and other items now owned or hereafter acquired by Borrower and now or hereafter attached to, or installed in any of the Improvements or the Land, which are now owned or hereafter acquired by Borrower and are now or hereafter attached to the Land or the Improvements, and including but not limited to any and all partitions, dynamos, window screens and shades, draperies, rugs and other floor coverings, awnings, motors, engines, boilers, furnaces, pipes, cleaning, call and sprinkler systems, fire extinguishing apparatus and equipment, water tanks, swimming pools, heating, ventilating, refrigeration, plumbing, laundry, lighting, generating, cleaning, waste disposal, transportation (of people or things, including but not limited to, stairways, elevators, escalators, and conveyors), incinerating, air conditioning and air cooling equipment and systems, gas and electric machinery, appurtenances and equipment, disposals, dishwashers, refrigerators and ranges, recreational equipment and facilities of all kinds, and lighting, traffic control, waste disposal, raw and potable water, gas, electrical, storm and sanitary sewer, telephone and cable television facilities, and all other utilities whether or not situated in easements, together with all accessions, appurtenances, replacements, betterments, and substitutions for any of the foregoing and the proceeds thereof. (22) Government Authority: Any and all applicable courts, boards, agencies, corporations, commissions, offices, or authorities of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city or otherwise), whether now or hereafter in existence. (23) Hazardous Substance: Any substance, product, waste, or other material which is or becomes listed, regulated, or addressed as being a toxic, hazardous, polluting, or similarly harmful substance under any Environmental Law, including without limitation: (i) any substance included within the definition of "hazardous waste" pursuant to Section 1004 of RCRA; (ii) any substance included within the definition of "hazardous substance" pursuant to Section 101 of CERCLA; (iii) any substance included within (a) the definition of "regulated substance" pursuant to Section 26.342(13) of TWC; or (b) the definition of "hazardous substance" pursuant to Section 361.003(11) of THSC; (iv) asbestos; (v) polychlorinated biphenyls; (vi) petroleum products; (vii) underground storage tanks, whether empty, filled or partially filled with any substance; (viii) any radioactive materials, urea formaldehyde foam insulation or radon; (ix) any substance included within the definition of "waste" pursuant to Section 30.003(6) of TWC or " pollutant" pursuant to Section 26.001(13) of TWC; and (x) any other chemical, material or substance, the exposure to which is prohibited, limited or regulated by any Governmental Authority on the basis that such chemical, material or substance is toxic, hazardous or harmful to human health or the environment. (24) HUD: The United States Department of Housing and Urban Development. 5 (25) HUD Law: The Housing and Community Development Act of 1974, as amended, 42 U.S.C. § 3535(d) and § 5301 et seq., any and all HUD regulations issued pursuant thereto in temporary or final form, and any and all federal and City of Round Rock rules and rulings, notices, handbooks, requirements, statutes, regulations or laws governing or relating to such federal law, and any and all successor statutes thereof. It is expressly understood that any changes in these laws are automatically incorporated herein without specific reference. (26) Impositions: (i) All real estate and personal property taxes, charges, assessments, standby fees, excises, and levies and any interest, costs, or penalties with respect thereto, general and special, ordinary and extraordinary, foreseen and unforeseen, of any kind and nature whatsoever which at any time prior to or after the execution hereof may be assessed, levied, or imposed upon any property, real, personal or mixed, or upon the Mortgaged Property or the ownership, use, occupancy, or enjoyment thereof, or any portion thereof, or the sidewalks, streets, or alleyways adjacent thereto; (ii) any charges, fees, license payments, or other sums payable for or under any easement, license, or agreement maintained for the benefit of the Mortgaged Property; (iii) water, gas, sewer, electricity, and other utility charges and fees relating to the Mortgaged Property; and (iv) assessments and charges arising under any subdivision, condominium, planned unit development, or other declarations, restrictions, regimes, or agreements affecting the Mortgaged Property. (27) Improvements: Any and all buildings, covered garages, air conditioning towers, open parking areas, structures and other improvements of any kind or nature, and any and all additions, alterations, betterments or appurtenances thereto, now or at any time hereafter situated, placed, or constructed upon the Land or any part thereof; including, without limitation, the construction by Borrower of the improvements described in the Statement of Work. (28) Indebtedness: (i) The principal of, interest on, or other sums evidenced by the Note or other Loan Documents, adjusted by such credits or forgiveness of amounts otherwise due as allowed in the Note or the other Loan Documents; (ii) any other amounts, payments, or premiums payable under the Loan Documents; (iii) such additional or future sums (whether or not obligatory), with interest thereon, as may hereafter be borrowed or advanced from City, its successors or assigns, by the then record owner of the Mortgaged Property, when evidenced by a promissory note which, by its terms, is secured by the Security Agreements (it being contemplated by Borrower and City that such future indebtedness may be incurred); and, (iv) any and all other indebtedness, obligations, and liabilities of any kind or character of Borrower to City, now or hereafter existing, absolute or contingent, due or not due, arising by operation of law or otherwise, or direct or indirect, primary or secondary, joint, several, joint and several, fixed or contingent, secured or unsecured by additional or different security or securities, including indebtedness, obligations, and liabilities to City by Borrower as a member of any partnership, joint venture, trust or other type of business association, or other group, and whether incurred by Borrower as principal, surety, endorser, guarantor, accommodation party or otherwise, and any and all renewals, modifications, amendments, restatements, rearrangements, consolidations, substitutions, replacements, enlargements, and extensions thereof, it being contemplated by Borrower and City that Borrower may hereafter become indebted to City in further sum or sums. Notwithstanding the foregoing provisions of this definition, the Security Agreements shall not secure any such other loan, advance, debt, obligation or liability with 6 respect to which City is by applicable law prohibited from obtaining a lien on real estate, nor shall this definition operate or be effective to constitute or require any assumption or payment by any person, in any way, of any debt or obligation of any other person to the extent that the same would violate or exceed the limit provided in any applicable usury or other law. (29) Insurance Requirement: The insurance coverages required to be maintained on the Mortgaged Property in an amount equal to the sum of (a) the amount of the Loan, plus (b) the amount of the Superior Loan. (30) Land: All that certain real property or interest therein situated in the County of Williamson, Texas, more particularly described in the Deed of Trust, together with all right, title, interest, and privileges of Borrower in and to (i) all streets, ways, roads, alleys, easements, rights-of-way, licenses, rights of ingress and egress, vehicle parking rights and public places, existing or proposed, abutting, adjacent, used in connection with or pertaining to such real property or the improvements thereon; (ii) any strips or gores of real property between such real property and abutting or adjacent properties; (iii) all water and water rights, timber and crops pertaining to such real estate; and (iv) all appurtenances and all reversions and remainders in or to such real property. (31) Leases: Any and all leases, master leases, subleases, licenses, concessions, or other agreements (whether written or oral, or now or hereafter in effect) which grant to third parties a possessory interest in and to, or the right to use or occupy, all or any part of the Mortgaged Property, together with all security and other deposits or payments made in connection therewith. (32) Legal Requirements: (i) Any and all present and future judicial decisions, statutes (including Architectural Barrier Laws, Environmental Laws and HUD Law), rulings, rules, regulations, permits, certificates, or ordinances (including City of Round Rock Ordinances) of any Governmental Authority in any way applicable to Borrower, any Signatory Party or the Mortgaged Property, including, without limiting the generality of the foregoing, the ownership, use, occupancy, possession, operation, maintenance, construction, alteration, repair, or reconstruction thereof, (ii) any and all covenants, conditions, and restrictions contained in any deeds, other forms of conveyance, or in any other instruments of any nature that relate in any way or are applicable to the Mortgaged Property or the ownership, use, or occupancy thereof, (iii) Borrower's presently or subsequently effective bylaws and articles of incorporation, operating agreement and articles of organization or partnership, limited partnership, joint venture, trust, or other form of business association agreement, (iv) any and all Leases, (v) any and all Contracts, (vi) the Federal Requirements, and (vii) any and all leases, other than those described in (iv) above, and other contracts (written or oral), other than those described in (v) above, of any nature that relate in any way to the Mortgaged Property and to which Borrower may be bound, including, without limiting the generality of the foregoing, any lease or other contract pursuant to which Borrower is granted a possessory interest in and to the Land and/or the Improvements. Further, any changes in applicable statutes, rulings, rules, regulations, permitting certificates, or ordinances of any Governmental Authority or the Federal Requirements are automatically incorporated herein without specific reference. 7 (33) Loan: An amount equal to the principal sum payable in the Note or so much thereof as may be outstanding from time to time pursuant to the Loan Documents which City agrees to lend to Borrower, and the Borrower hereby agrees to borrow from the City and repay to, or as further described in the Note receive credit from, City or its assigns. (34) Loan Agreement: That certain Community Development Block Grant Public Facilities Loan Agreement, entered into by and between Borrower and City, and dated the Effective Date. (35) Loan Documents: The Loan Agreement, the Note, the Security Agreements and any and all other documents now or hereafter executed by Borrower, or any other person or party in connection with the loan evidenced by the Loan Agreement or in connection with the payment of the Indebtedness or the performance or discharge of the Obligations. (36) Loan Proceeds: The Loan amounts paid by City to Borrower in accordance with the terms and conditions of the Loan Agreement. (37) Material Adverse Effect: Any material and adverse effect on (i) the business condition (financial or otherwise), operations, prospects, results of operations, capitalization, liquidity or any properties of Borrower, taken as a whole, (ii) the value of the Mortgaged Property, (iii) the ability of Borrower (or if Borrower is a partnership, joint venture, or other type of business association, of any of the parties comprising Borrower or of the ground lessor if the estate held by Borrower in the Land is a leasehold estate) to pay and perform the Indebtedness and the Obligations, respectively, or (iv) the validity, enforceability or binding effect of any of the Loan Documents. (38) Minerals: All substances in, on, under, or above the Land which are now, or may become in the future, intrinsically valuable (that is, valuable in themselves) and which may be now or in the future enjoyed through extraction or removal from the property, including without limitation, oil, gas, and all other hydrocarbons, coal, lignite, carbon dioxide and all other nonhydrocarbon gases, uranium and all other radioactive substances, and gold, silver, copper, iron and all other metallic substances or ores. (39) Monitors: HUD, Trustee and City, and their respective agents, representatives, and employees. (40) Mortgaged Property: The Land, Minerals, Fixtures, Improvements, Personalty, Contracts, Leases and Rents, and any interest of Borrower now owned or hereafter acquired in and to the Land, Minerals, Fixtures, Improvements, Personalty, Contracts, Leases and Rents, together with any and all other security and collateral of any nature whatsoever, now or hereafter given for the repayment of the Indebtedness or the performance and discharge of the Obligations. As used in the Loan Documents, the term "Mortgaged Property" shall be expressly defined as meaning all or, where the context permits or requires, any portion of the above and all or, where the context permits or requires, any interest therein. (41) Note: That certain promissory note in such form as is acceptable to the City, dated even date with the Loan Agreement, incorporated herein by reference, executed by Borrower and, if 8 applicable, guaranteed by one or more guarantors, and payable to the order of City in the principal sum of the Loan, bearing interest as therein specified, containing an attorney's fee clause, interest and principal being payable as therein specified, finally maturing as stated in the note, and secured by, among other things, the Security Agreements; and any and all renewals, modifications, amendments, rearrangements, consolidations, reinstatements, enlargements, or extensions of such promissory note or any promissory note or notes given in renewal, substitution or replacement therefor. (42) Obligations: Any and all of the covenants, conditions, warranties, representations, and other obligations (other than to repay the Indebtedness) made or undertaken by Borrower, or any other person or party to the Loan Documents, to City, Trustee, or others as set forth in the Loan Documents, and in any deed, lease, sublease, or other form of conveyance, or any other agreement pursuant to which Borrower is granted a possessory interest in the Land. (43) Personalty: All of the right, title, and interest of Borrower in and to (i) furniture, furnishings, equipment, machinery, goods (including, but not limited to, crops, farm products, timber and timber to be cut, and extracted Minerals); (ii) general intangibles, money, insurance proceeds, accounts, contract and subcontract rights, trademarks, trade names, copyrights, chattel paper, instruments, investment property, letters of credit, inventory; (iii) all cash funds, fees (whether refundable, returnable or reimbursable), deposits or other funds or evidences of cash, credit or indebtedness deposited by or on behalf of Borrower with any Governmental Authority, providers of utility services, public or private, including specifically, but without limitation, all refundable, returnable, or reimbursable tap fees, utility deposits, commitment fees and development costs, any awards, remunerations, reimbursements, settlements, or compensation heretofore made or hereafter to be made by any Governmental Authority pertaining to the Mortgaged Property, including, but not limited to, those for any vacation of, or change of grade in, any streets affecting the Land or Improvements and those for municipal utility district or other utility costs incurred or deposits made in connection with the Land; and (iv) all other personal property of any kind or character as defined in and subject to the provisions of the Commercial Code (Chapter 9 - Secured Transactions); any and all of which are now owned or hereafter acquired by Borrower, and which are now or hereafter situated in, on, or about the Land or the Improvements, and necessary to the complete and proper planning, development, construction, financing, use, occupancy, or operation thereof, or acquired (whether delivered to the Land or stored elsewhere) for use in or on the Land or the Improvements, together with all accessions, replacements, and substitutions thereto or therefor and the proceeds thereof. (44) Program Income: Gross income received by Borrower directly generated from the use of CDBG funds, which includes, but is not limited to the following: proceeds from the disposition by sale or long-term lease of real property purchased or improved with CDBG funds; proceeds from the disposition of equipment purchased with CDBG funds; gross income from the use or rental of real or personal property acquired by Borrower with CDBG funds, less costs incidental to generation of income; payments of principal and interest on loans made using CDBG funds; proceeds from the sale of loans made with CDBG funds; proceeds from sale of obligations secured by loans made with CDBG funds; interest earned on program income pending its disposition; and funds collected through special assessments made against properties owned and 9 occupied by households not of low and moderate income, where the assessments are used to recover all or part of the CDBG portion of a public improvement. (45) Project: The development and construction of Improvements upon the Land in Round Rock, Williamson County, Texas for an addition of approximately 2,800 square feet to a pregnancy resource center which will provide services to women and families with planned and unplanned pregnancies, pregnancy testing and counseling classes which are further described in the Statement of Work. (46) RCRA: The Resource Conservation and Recovery Act. (47) Receipts: Any receipt of funds (but not Advances) in connection with the Project. (48) Release: The terms "release," "removal," "environment," and "disposal" shall have the meanings given such terms in CERCLA, and the term "disposal" shall also have the meaning given it in RCRA; provided that in the event either CERCLA or RCRA is amended so as to broaden the meaning of any term defined thereby, such broader meaning shall apply subsequent to the effective date of such amendment, and provided further that to the extent the laws of the State of Texas establish a meaning for "release," "removal," "environment," or "disposal," which is broader than that specified in either CERCLA and RCRA, such broader meaning shall apply. (49) Rents: All of the rents, royalties, issues, bonus monies, revenues, income, proceeds, profits, security and other types of deposits (after Borrower acquires title thereto), and other benefits paid or payable by parties to the Leases (other than Borrower) for using, leasing, licensing, possessing, operating from, residing in, selling, or otherwise enjoying all or any portion of the Mortgaged Property. (50) Restricted Period: The period beginning on the Effective Date and ending on the date the Project is completed, evidenced by the issuance of a Certificate of Occupancy by the City. (51) Right to Substitute: The right of Borrower to substitute another improved property with facilities of comparable size and quality to the Mortgaged Property, on the day immediately preceding the date the City approves the substitution, and which will be operated for the same or similar purpose as the Project. (52) Security Agreements: The Deed of Trust. (53) Signatory Party: Any signatory to any of the Loan Documents that signs on Borrower's behalf that is a corporation, general partnership, limited partnership, limited liability company, joint venture, trust, or other type of business organization. (54) Statement of Work: The work required to be completed with respect to the Mortgaged Property which will be funded by the Loan. (55) Subcontractor Report: The report Contractor is required to submit to City in connection with the submission of a Draw Request form. 10 (56) Superior Lien: That one or more certain deed of trust or deeds of trust, financing agreements, financing statements, liens, security interests, assignments and other collateral securing the Superior Loan. (57) Superior Lienholder: Independent Bank. (58) Superior Loan: A loan secured by the Superior Lien in a maximum amount equal to $370,000.00, payable by Borrower to Superior Lienholder. (59) Tax Code: The U.S. Internal Revenue Code of 1986, as amended, any and all U.S. Department of Treasury Regulations issued pursuant thereto in temporary or final form, and any and all federal, state, county, municipal and city rules and rulings, notices, requirements, statutes, regulations or laws governing or relating to taxes and/or taxation, and any and all successor statutes thereof. (60) THSC: The Texas Health and Safety Code. (61) TWC: The Texas Water Code. (62) Trustee: The individual described as Trustee in the Deed of Trust. (63) U.S.C.: The United States Code. 11 Exhibit "B" STATEMENT OF WORK STATEMENT OF PURPOSE: The HUD national objective which will be achieved by this project is to benefit low to moderate income persons provided the activities are carried out in accordance with the criteria set forth at 24 C.F.R. 570.208. PROJECT OVERVIEW: AGAPE Pregnancy Resource Center (AGAPE) will use the Community Development Block Grant (CDBG) Funds to construct a 2,800 square foot addition to the building located at 104 East Main Street. The Project objective is to expand the Pregnancy Resource Center in order to service women and families with planned and unplanned pregnancies by providing pregnancy testing at no cost to the clients, to all who come including referrals from Texas DHS. The program also includes counseling and classes taught on subjects such as financial, parenting, computer skills and others. Maternity clothes are available to the client at no cost. Levels of Accomplishment In addition to normal administrative services required as part of this Agreement, AGAPE agrees to provide the following program services: Activity Units of Service Per Month Total Units per Year Activity 1: Medical testing 50 600 Activity 2: Counseling and classes 50 600 Units of Service shall be defined for Activity 1 first time visits for testing; and for Activity 2 as unduplicated clients returning for classes and counseling. Staffing To undertake the activities described above and accomplish the levels of service described above, AGAPE will allocate staff time in support of the program funded under this Agreement as follows: Title Hrs. per Week # of Weeks = Estimated Hours Center Administrator 40 51 = 2000 Title Development Director Hrs. per Week # of Weeks 20 52 Estimated Hours 1000 Title Hrs. per Week # of Weeks = Estimated Hours Volunteer Counselors, Instructors, Client Advocates & Other 175 51 = 8900 Title Hrs. per Week # of Weeks = Estimated Hours Administrative Assistant 20 13 = 250 Any changes in the key personnel assigned or their general responsibilities under this program are subject to the prior approval of the CITY. Exhibit "C" APPROVED BUDGET Line Item Amount Permits, Architect, Engineering, Site Work and Foundation $24,000.00 Construction $92,961.00 Project Costs $116,961.00 Exhibit "D" INSURANCE REQUIREMENT Section 1. Borrower, from the Date until issuance of the certificate of occupancy by the City of Round Rock with respect to the Property, shall carry insurance in the following types and amounts: 1.1. Commercial General Liability Coverage with a minimum bodily injury and property damage per occurrence limit of $500,000 for coverages A & B. The policy shall contain the following provisions and endorsements in favor of the City: 1.1.1. Blanket Contractual liability coverage for liability assumed under this contract; 1.1.2. Products and completed operations coverage; 1.1.3. Independent contractors coverage; 1.1.4. Personal and Advertising injury coverage; 1.1.5. Additional Insured endorsement; 1.1.6. Waiver of Subrogation endorsement; and 1.1.7. 30 -Day Notice of Cancellation endorsement. 1.2. Business Automobile Liability Insurance for all owned, non -owned and hired vehicles with a limit of $500,000 per occurrence for bodily injury and property damage liability. The policy shall contain the following endorsements in favor of the City: 1.2.1. Additional Insured endorsement; 1.2.2. Waiver of Subrogation endorsement; and 1.2.3. 30 -Day Notice of Cancellation endorsement. 1.3. Directors and Officers Insurance with a minimum of not less than $1,000,000 per claim shall be in place for protection from claims arising out of negligent acts, errors or omissions for directors and officers while acting in their capacities as such. If coverage is underwritten on a claims -made basis, the retroactive date shall be coincident with or prior to the date of the Agreement and the certificate of insurance shall state that the coverage is claims made and the retroactive date. The coverage shall be continuous for the duration of the Agreement and for not less than twenty-four (24) months following the end of the Agreement. Coverage, including renewals, shall have the same retroactive date as the original policy applicable to the Agreement. The Borrower shall, on at least an annual basis, provide the City with a certificate of insurance as evidence of such insurance. 1 Section 2. Borrower shall cause any contractor or subcontractor of Borrower constructing improvements to the Mortgaged Property, from the Date until issuance of the certificate of occupancy by the City of Austin with respect to the Mortgaged Property, to carry insurance in the following types and amounts: 2.1. Employers Liability and Workers' Compensation Insurance. Minimum policy limits for Employers' Liability shall be $100,000 bodily injury each accident, $500,000 bodily injury by disease policy limit and $100,000 bodily injury by disease each employee. Workers' Compensation coverage shall be consistent with statutory benefits described in the Texas Workers' Compensation Act, section 401. Coverage shall apply to the State of Texas. The policy shall contain the following endorsements in favor of the City: 2.2.1. Waiver of Subrogation; and 2.2.2. 30 -Day Notice of Cancellation. 2.2. Commercial General Liability Coverage with a minimum bodily injury and property damage per occurrence limit of $500,000 for coverages A & B. The policy shall contain the following provisions and endorsements in favor of the City: 2.2.1. Blanket Contractual liability coverage for liability assumed under this contract; 2.2.2. Products and completed operations coverage; 2.2.3. Independent contractors coverage; 2.2.4. Personal and Advertising injury coverage; 2.2.5. Additional Insured endorsement; 2.2.6. Waiver of Subrogation endorsement; and 2.2.7. 30 -Day Notice of Cancellation endorsement. 2.3. Business Automobile Liability Insurance for all owned, non -owned and hired vehicles with a limit of $500,000 per occurrence for bodily injury and property damage liability. The policy shall contain the following endorsements in favor of the City: 2.3.1. Additional Insured endorsement; 2.3.2. Waiver of Subrogation endorsement; and 2.3.3. 30 -Day Notice of Cancellation endorsement. 2 2.4. Builders' Risk Insurance on an all risk physical loss form in the amount of the maximum contractor amount for any improvements made to the Mortgaged Property. Coverage shall commence upon the date any work with respect to such improvements begins and shall continue until the work is complete and a certificate of occupancy is issued with respect to the improvements. The City shall be a mortgagee/loss payee on the policy. If off-site storage is permitted with respect to the work, coverage shall include transit and storage in an amount sufficient to protect any property being transported or stored. Section 3. Borrower, from the date of issuance of the certificate of occupancy by the City of Round Rock with respect to the Mortgaged Property until termination of the Agreement, shall carry insurance in the following types and amounts for the duration of the Agreement: 3.1. Commercial General Liability Coverage with a minimum bodily injury and property damage per occurrence limit of $500,000 for coverages A & B. The policy shall contain the following provisions: 3.1.1. Blanket Contractual liability coverage for liability assumed under this contract; 3.1.2. Products and completed operations coverage; 3.1.3. Independent contractors coverage; 3.1.4. Personal and Advertising injury coverage; 3.1.5. Additional Insured endorsement in favor of the City; 3.1.6. Waiver of Subrogation endorsement in favor of the City; and 3.1.7. 30 -Day Notice of Cancellation endorsement in favor of the City. 3.2. Business Automobile Liability Insurance for all owned, non -owned and hired vehicles with a limit of $500,000 per occurrence for bodily injury and property damage liability. The policy shall contain the following endorsements in favor of the City: 3.2.1. Additional Insured endorsement; 3.2.2. Waiver of Subrogation endorsement; and 3.2.3. 30 -Day Notice of Cancellation endorsement. 3.3. All risk property coverage including but not limited to fire, wind, hail, theft, vandalism, and malicious mischief for all real and personal property owned and/or acquired by Borrower with respect to the Agreement. The coverage shall be at replacement cost with a 100% coinsurance clause. The City shall be a mortgage/loss payee on the policy As Their Interest May Appear. 3 3.4. Directors and Officers Insurance with a minimum of not less than $1,000,000 per claim shall be in place for protection from claims arising out of negligent acts, errors or omissions for directors and officers while acting in their capacities as such. If coverage is underwritten on a claims -made basis, the retroactive date shall be coincident with or prior to the date of the Agreement and the certificate of insurance shall state that the coverage is claims made and the retroactive date. The coverage shall be continuous for the duration of the Agreement and for not less than twenty-four (24) months following the end of the Agreement. Coverage, including renewals, shall have the same retroactive date as the original policy applicable to the Agreement. The Borrower shall, on at least an annual basis, provide the City with a certificate of insurance as evidence of such insurance. Section 4. If the insurance policies are written for less than the amounts specified in 0, 0 and 0 of this Insurance Requirement, Borrower, or Borrower's contractor or subcontractor as the case may be, shall carry umbrella or excess liability insurance for any differences in amounts specified. If excess liability insurance is provided, it must follow the form of the primary coverage. Section 5. Borrower shall provide City at least thirty (30) calendar days written notice of erosion of the aggregate limit below the minimum required combined single limit of coverage. Section 6. Borrower shall not acquire any property or commence work under the Agreement until it has obtained all required insurance and until the Legal Department of the City has reviewed such insurance coverage. Section 7. City prefers that the required insurance be written by a company licensed to do business in the State of Texas at the time the policy is issued. However, with respect to Employers Liability and Workers' Compensation Insurance, a policy written by the Texas Workers' Compensation Fund is acceptable. Section 8. All endorsements, naming the City as additional insured, waivers, notices of cancellation, notices of non -renewal or any other endorsements as well as the Certificate of Insurance shall: 8.1. Name the City at the notice address set forth in the Agreement. 8.2. Obligate the insurance company to notify the City official named as City contact in the Agreement at its notice address of any non -renewal, cancellation or material change to the policy, at least thirty (30) calendar days before the change or cancellation. Section 9. The "other" insurance clause shall not apply to City where City is an additional insured shown on the policy. It is intended that the policies required in the Agreement, covering both City, Borrower, shall be considered primary coverage as applicable. Section 10. Borrower shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Agreement or the twenty-four month period following completion, in the case of a claims -made policy. 4 Section 11. City reserves the right to review this Insurance Requirement during the effective period of the Agreement and to make reasonable adjustments to insurance coverages, and their limits, when deemed necessary and prudent by City based upon changes in statutory law, court decisions, or the claims history of the industry or financial condition of the insurance company, as well as that of Borrower. Section 12. City shall be entitled, upon request, and without expense to City, to receive copies of the requisite insurance policies and all endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions. (Except where policy provisions are established by law or regulation binding upon either of the parties hereto or the underwriter on any of such policies). Section 13. Actual losses, deductibles and self-insured retentions stated in policies, if any, which are not covered by insurance as required by this Insurance Requirement, are not allowable costs under the Agreement. 5 Exhibit "E" SELF CERTIFICATION FORM Community Development Block Grant Program Self Declaration of Income Program Year 2006-07 The expansion of the AGAPE facility is funded with federal Community Development Block Grant (CDBG) funds and is designed to primarily benefit low to moderate -income households (LMI). In order for a public facility to meet one of the three National Objectives, AGAPE must show that its facility will be used by a specific group of people who are at least 51% LMI. Applicant should not provide his/her signature unless he/she has read and understands the income information they are certifying under penalty of law. At the discretion of the program, Applicant may be required to provide documentation to support the self -declaration of income. Applicant Information Applicant Name: SSN#: Applicant Address: City: Zip: Female Head of Household: (Does this person have minor Ethnicity (check one) ['White ❑Black/A frican-American ['Asian ElOther Multi -Racial ['Yes ❑No children living with her) ❑Am Indian/Alaskan Native Native Hawaiian/Other Pacific Islander ❑Am. Indian/Alaskan Native & White ['Asian & White ❑Black African American & White ❑Am Indian/Alaskan Native & Blk Applicant Household Income Information Estimate the annual income of the household by projecting the prevailing rate of income of each person at the time assistance is provided for the individual, family, or household (as applicable). Estimated annual income shall include income from all sources of household members as applicable. Income or asset enhancement derived from the CDBG- assisted activity shall not be considered in calculating estimated annual income. Household Income Information 0$0 - $39,850 0$39,851 - $45,500 ❑$51,201 - $56,900 ❑$56,901 - $61,450 0$66,001 - $70,550 ❑$70,551 - $75,100 ❑$45,501 - $51,200 0$61,451 - $66,000 ['More than $75,100 Number of persons living in household: Number of adults (18 yrs and older) living in household: % LMI: . (Refer to chart on page 2 for % information) Applicant Self Declaration Certification Evidenced by the signature below, Applicant certifies his or her annual household income. Applicant certifies that the information herein provided is true and accurate. Applicant further acknowledges that any inaccuracy and/or misrepresentation provided herein may constitute fraud, which is punishable by law. Applicant certifies that all information provided herein and any attachments hereto, are true and correct as of the date set forth opposite signature. Applicant acknowledges that Title 18, Section 1001 of the U.S. Code states that any person that makes intentional or negligent statements to any department of the United States Government is guilty of a felony that could result in but not be limited to a fine, imprisonment, or both. Applicant Signature Date Program Use Only: Program/Activity Name: HUD Income guidelines used to certify client dated: MARCH 8, 2006 Updated March 29, 2006 Community Development Block Grant Program Monthly Income, $ No. In Family 25% 30% HUD's 30% 35% 40% 45% HUD's 50% 1 2 3 4 5 6 7 8 1,038 1,245 1,185 1,423 1,333 1,600 1,481 1,778 1,600 1,920 1,719 2,063 1,838 2,205 1,956 2,348 1,246 1,421 1,600 1,779 1,921 2,063 2,204 2,346 1,453 1,660 1,868 1,660 1,897 2,134 1,867 2,133 2,400 2,074 2,370 2,666 2,240 2,560 2,880 2,406 2,750 3,094 2,573 2,940 3,308 2,739 3,130 3,521 2,075 2,371 2,667 2,963 3,200 3,438 3,675 3,913 55% 60% 65% 70% 75% 80% 2,283 2,608 2,933 3,259 3,520 3,781 4,043 4,304 2,490 2,845 3,200 3,555 3,840 4,125 4,410 4,695 2,698 3,082 3,467 3,851 4,160 4,469 4,778 5,086 2,905 3,319 3,733 4,148 4,480 4,813 5,145 5,478 3,113 3,556 4,000 4,444 4,800 5,156 5,513 5,869 3,320 3,793 4,267 4,740 5,120 5,500 5,880 6,260 HUD's 80% 3,317 3,792 4,267 4,742 5,121 5,500 5,879 6,258 100% 4,150 4,742 5,333 5,925 6,400 6,875 7,350 7,825 HUD maximum income allowance based upon the size of household is: $ Based upon client information provided, client household: (check one) ❑ Does meet income qualifications % LMI: ❑ Does not meet income qualifications Reviewer's Signature: Date: Updated March 29, 2006 Annual Income, $ No. In HUD's HUD's HUD's 35% 40% 45% 55% 60% 65% 70% 75% 80% 80% 100% Family 25% 30% 30% 50% 1 12,450 14,940 14,950 17,430 19,920 22,410 24,900 27,390 29,880 32,370 34,860 37,350 39,840 39,850 49,800 2 14,225 17,070 17,100 19,915 22,760 25,605 28,450 31,295 34,140 36,985 39,830 42,675 45,520 45,500 56,900 3 16,000 19,200 19,200 22,400 25,600 28,800 32,000 35,200 38,400 41,600 44,800 48,000 51,200 51,200 64,000 4 17,775 21,330 21,350 24,885 28,440 31,995 35,550 39,105 42,660 46,215 49,770 53,325 56,880 56,900 71,100 5 19,200 23,040 23,050 26,880 30,720 34,560 38,400 42,240 46,080 49,920 53,760 57,600 61,440 61,450 76,800 6 20,625 24,750 24,750 28,875 33,000 37,125 41,250 45,375 49,500 53,625 57,750 61,875 66,000 66,000 82,500 7 22,050 26,460 26,450 30,870 35,280 39,690 44,100 48,510 52,920 57,330 61,740 66,150 70,560 70,550 88,200 8 23,475 28,170 28,200 32,865 37,560 42,255 46,950 51,645 56,340 61,035 65,730 70,425 75,120 75,100 93,900 Monthly Income, $ No. In Family 25% 30% HUD's 30% 35% 40% 45% HUD's 50% 1 2 3 4 5 6 7 8 1,038 1,245 1,185 1,423 1,333 1,600 1,481 1,778 1,600 1,920 1,719 2,063 1,838 2,205 1,956 2,348 1,246 1,421 1,600 1,779 1,921 2,063 2,204 2,346 1,453 1,660 1,868 1,660 1,897 2,134 1,867 2,133 2,400 2,074 2,370 2,666 2,240 2,560 2,880 2,406 2,750 3,094 2,573 2,940 3,308 2,739 3,130 3,521 2,075 2,371 2,667 2,963 3,200 3,438 3,675 3,913 55% 60% 65% 70% 75% 80% 2,283 2,608 2,933 3,259 3,520 3,781 4,043 4,304 2,490 2,845 3,200 3,555 3,840 4,125 4,410 4,695 2,698 3,082 3,467 3,851 4,160 4,469 4,778 5,086 2,905 3,319 3,733 4,148 4,480 4,813 5,145 5,478 3,113 3,556 4,000 4,444 4,800 5,156 5,513 5,869 3,320 3,793 4,267 4,740 5,120 5,500 5,880 6,260 HUD's 80% 3,317 3,792 4,267 4,742 5,121 5,500 5,879 6,258 100% 4,150 4,742 5,333 5,925 6,400 6,875 7,350 7,825 HUD maximum income allowance based upon the size of household is: $ Based upon client information provided, client household: (check one) ❑ Does meet income qualifications % LMI: ❑ Does not meet income qualifications Reviewer's Signature: Date: Updated March 29, 2006 Exhibit "F" CLIENT / BENEFICIARY DATA This report is prepared in digital format. The following exhibit is an example of the information required to complete the client / beneficiary data. f Client / Beneficiary Data Ayehcy: Unduplicated Clients Address: Date: Contact Plan/Prog: Phone: - __ Activity No,.- 2004-05 o.:2004-05 Unduplicated Clients: 0 Estimated clients: Raw Categories: W White(not Hispanic origin) B Black(not Hispontc origin) WH White Hispanic A I Am Indian or Alaska Native O Other mufti-racial&NOT Hispanic BH Black+Hispanic AS Asian or Pacific Islander OH Other multi•raclal&HispWunic Neta•Acc04ing to!'Census 2004✓1pnlcity has two Chrylces only N1SPgNlG-orh(OTHt5Pq'NlC,.:RBc6,118s ualr'hutf0 choices,'ie Vh( a('-e• ' and other Paclfic;fslandD�soni8:4tharr6ce•a(Ono fw00ltnofaiYl s'.:w o'n` - B at.,9fackor,Alncanr�nierfcan#rlo/1e,AmerfcArflndrart,(ar7d'A(Skka7l,NatNeelone•Asi®rialo ' Alaska MOO;, NI 1' ddsCClpllnn Chrangq$�n 2000Rdcg,gW sY alt;include f His ar)c or ft io:osKe I " ' ne,Ndt ge Hawaiian`- NahYe.conibrdedno}Aslsh*hd,-ptxcrH0;15lanoe a tb o �p/(v�; :. ) P 4a! d pe orq taco x)Assspondp»fe 6trlti sole rha?a Ihal1�}�pe roue°3j An%enc�n Fgdlan and. Name' Derr)p ra hies: Family Annual 2004 Last, First Radii ' F.FIH Sipe"' Inecila Addhai§ Cit Zi Oct" Nov Dec Jan IFeb " Mar A r MOQS Jun Jul Au Set Amt Ex) _ ( 0 01 ol ol 01 _ o• a C r l 1_ i J l)i + - 0 } 0 0. - 0 -I _. , g � 0, - �: o� o n o �r I : 0 _ o 0 0 0, �,. 0. Program Year 2004.05 City of Round Rock Exhibit "G" FEDERAL LABOR STANDARDS PROVISIONS AND PAYROLL FORM Federal Labor Standards Provisions U.S. Department of Housing and Urban Development Office of Labor Relations Applicability The Project or Program to which the construction work covered by this contract pertains is being assisted by the United States of America and the following Federal Labor Standards Provisions are included in this Contract pursuant to the provisions applicable to such Federal assistance. A. 1. (i) Minimum Wages. All laborers and mechanics em- ployed or working upon the site of the work will be paid uncondi- tionally and not less often than once a week, and without subse- quent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secre- tary of Labor under the Copeland Act (29 CFR Part 3), the full amount of wages and bona fide fringe benefits (or cash equiva- lents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, re- gardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under Section I(b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of 29 CFR 5.5(a)(1)(iv); also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs, which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classi- fication of work actually performed, without regard to skill, except as provided in 29 CFR 5.5(a)(4). Laborers or mechanics per- forming work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any addi- tional classification and wage rates conformed under 29 CFR 5.5(a)(1)(ii) and the Davis -Bacon poster (WH -1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible, place where it can be easily seen by the workers. (ii) (a) Any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage deter- mination. HUD shall approve an additional classification and wage rate and fringe benefits therefor only when the following criteria have been met: (1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and (2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe ben- efits, bears a reasonable relationship to the wage rates contained in the wage determination. (b) If the contractor and the laborers and mechanics to be em- ployed in the classification (if known), or their representatives, and HUD or its designee agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by HUD or its designee to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of La- bor, Washington, D.C. 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise HUD or its designee or will notify HUD or its designee within the 30 -day period that additional time is necessary. (Approved by the Office of Management and Budget under OMB control number 1215- 0140.) (c) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and HUD or its designee do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), HUD or its designee shall refer the questions, including the views of all interested parties and the recommenda- tion of HUD or its designee, to the Administrator for determina- tion. The Administrator, or an authorized representative, will is- sue a determination within 30 days of receipt and so advise HUD or its designee or will notify HUD or its designee within the 30 -day period that additional time is necessary. (Approved by the Office of Management and Budget under OMB Control Number 1215- 0140.) (d) The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (1)(ii)(b) or (c) of this para- graph, shall be paid to all workers performing work in the classifi- cation under this contract from the first day on which work is per- formed in the classification. (iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay an- other bona fide fringe benefit or an hourly cash equivalent thereof. (iv) If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs rea- sonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable stan- dards of the Davis -Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate ac- count assets for the meeting of obligations under the plan or pro- gram. (Approved by the Office of Management and Budget under OMB Control Number 1215-0140.) 2. Withholding. HUD or its designee shall upon its own action or upon written request of an authorized representative of the De- partment of Labor withhold or cause to be withheld from the con- tractor under this contract or any other Federal contract with the same prime contractor, or any other Federally -assisted contract subject to Davis -Bacon prevailing wage requirements, which is held by the same prime contractor so much of the accrued pay- ments or advances as may be considered necessary to pay la- borers and mechanics, including apprentices, trainees and help- ers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee or helper, employed or working on the site of the work, all or part Previous edition is obsolete Page 1 of 4 form HUD -4010 (07/2003) ref. Handbook 1344.1 of the wages required by the contract, HUD or its designee may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. HUD or its designee may, after written notice to the contractor, disburse such amounts withheld for and on account of the contractor or subcontractor to the respective employees to whom they are due. The Comptroller General shall make such disbursements in the case of direct Davis -Bacon Act contracts. 3. (i) Payrolls and basic records. Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work preserved for a period of three years thereaf- ter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social secu- rity number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in Section I(b)(2)(B) of the Davis -bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5 (a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in Sec- tion I(b)(2)(B) of the Davis -Bacon Act, the contractor shall main- tain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially re- sponsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (Approved by the Office of Management and Budget under OMB Control Numbers 1215-0140 and 1215-0017.) (ii) (a) The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to HUD or its designee if the agency is a party to the contract, but if the agency is not such a party, the contractor will submit the payrolls to the applicant sponsor, or owner, as the case may be, for transmission to HUD or its designee. The payrolls submitted shall set out ac- curately and completely all of the information required to be main- tained under 29 CFR 5.5(a)(3)(i). This information may be submit- ted in any form desired. Optional Form WH -347 is available for this purpose and may be purchased from the Superintendent of Documents (Federal Stock Number 029-005-00014-1), U.S. Gov- ernment Printing Office, Washington, DC 20402. The prime con- tractor is responsible for the submission of copies of payrolls by all subcontractors. (Approved by the Office of Management and Budget under OMB Control Number 1215-0149.) (b) Each payroll submitted shall be accompanied by a "State- ment of Compliance," signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of the per- sons employed under the contract and shall certify the following: (1) That the payroll for the payroll period contains the information required to be maintained under 29 CFR 5.5 (a)(3)(i) and that such information is correct and complete; (2) That each laborer or mechanic (including each helper, ap- prentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without re- bate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in 29 CFR Part 3; (3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the appli- cable wage determination incorporated into the contract. (c) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH -347 shall sat- isfy the requirement for submission of the "Statement of Compli- ance" required by subparagraph A.3.(ii)(b). (d) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 231 of Title 31 of the United States Code. (iii) The contractor or subcontractor shall make the records re- quired under subparagraph A.3.(i) available for inspection, copy- ing, or transcription by authorized representatives of HUD or its designee or the Department of Labor, and shall permit such rep- resentatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, HUD or its designee may, after written notice to the contractor, sponsor, applicant or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pur- suant to 29 CFR 5.12. 4. Apprentices and Trainees. (i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. De- partment of Labor, Employment and Training Administration, Of- fice of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an ap- prentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actu- ally performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the Previous edition is obsolete Page 2 of 4 form HUD -4010 (07/2003) ref. Handbook 1344.1 journeymen hourly rate specified in the applicable wage determi- nation. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the appren- ticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage deter- mination for the applicable classification. If the Administrator de- termines that a different practice prevails for the applicable ap- prentice classification, fringes shall be paid in accordance with that determination. In the event the Office of Apprenticeship Train- ing, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an ap- prenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is ap- proved. (ii) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior ap- proval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Train- ing Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprentice- ship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the pay- roll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Adminis- tration shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not Tess than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the con- tractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (iii) Equal employment opportunity. The utilization of appren- tices, trainees and journeymen under 29 CFR Part 5 shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30. 5. Compliance with Copeland Act requirements. The contrac- tor shall comply with the requirements of 29 CFR Part 3 which are incorporated by reference in this contract 6. Subcontracts. The contractor or subcontractor will insert in any subcontracts the clauses contained in subparagraphs 1 through 11 of this paragraph A and such other clauses as HUD or its designee may by appropriate instructions require, and a copy of the applicable prevailing wage decision, and also a clause re- quiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in this paragraph. 7. Contract termination; debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the con- tract and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12. 8. Compliance with Davis -Bacon and Related Act Requirements. All rulings and interpretations of the Davis -Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5 are herein incorpo- rated by reference in this contract 9. Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract shall not be sub- ject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the De- partment of Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and HUD or its designee, the U.S. Department of Labor, or the employees or their repre- sentatives. 10. (i) Certification of Eligibility. By entering into this contract the contractor certifies that neither it (nor he or she) nor any per- son or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of Section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1) or to be awarded HUD contracts or participate in HUD programs pursuant to 24 CFR Part 24. (ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of Section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1) or to be awarded HUD contracts or participate in HUD programs pursuant to 24 CFR Part 24. (iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001. Additionally, U.S. Criminal Code, Section 1 01 0, Title 18, U.S.C., "Federal Housing Adminis- tration transactions", provides in part: "Whoever, for the purpose of ... influencing in any way the action of such Administration makes, utters or publishes any statement knowing the same to be false shall be fined not more than $5,000 or imprisoned not more than two years, or both." 11. Complaints, Proceedings, or Testimony by Employees. No laborer or mechanic to whom the wage, salary, or other labor standards provisions of this Contract are applicable shall be dis- charged or in any other manner discriminated against by the Con- tractor or any subcontractor because such employee has filed any complaint or instituted or caused to be instituted any proceeding or has testified or is about to testify in any proceeding under or relating to the labor standards applicable under this Contract to his employer. B. Contract Work Hours and Safety Standards Act. The provi- sions of this paragraph B are applicable only where the amount of the prime contract exceeds $100,000. As used in this paragraph, the terms "laborers" and "mechanics" include watchmen and guards. (1) Overtime requirements. No contractor or subcontractor con- tracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of 40 hours in such work- week unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of 40 hours in such workweek. (2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in subpara- Previous edition is obsolete Page 3 of 4 form HUD -4010 (07/2003) ref. Handbook 1344.1 graph (1) of this paragraph, the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addi- tion, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in subparagraph (1) of this paragraph, in the sum of $10 for each calendar day on which such individual was required or permit- ted to work in excess of the standard workweek of 40 hours without payment of the overtime wages required by the clause set forth in sub paragraph (1) of this paragraph. (3) Withholding for unpaid wages and liquidated damages. HUD or its designee shall upon its own action or upon written request of an authorized representative of the Department of La- bor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contract, or any other Federally -assisted contract subject to the Contract Work Hours and Safety Standards Act which is held by the same prime contractor such sums as may be determined to be necessary to satisfy any liabilities of such con- tractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in subparagraph (2) of this paragraph. (4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in subparagraph (1) through (4) of this paragraph and also a clause requiring the sub- contractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in subparagraphs (1) through (4) of this paragraph. C. Health and Safety. The provisions of this paragraph C are ap- plicable only where the amount of the prime contract exceeds $100,000. (1) No laborer or mechanic shall be required to work in surround- ings or under working conditions which are unsanitary, hazard- ous, or dangerous to his health and safety as determined under construction safety and health standards promulgated by the Sec- retary of Labor by regulation. (2) The Contractor shall comply with all regulations issued by the Secretary of Labor pursuant to Title 29 Part 1926 and failure to comply may result in imposition of sanctions pursuant to the Con- tract Work Hours and Safety Standards Act, 40 USC 3701 et seq. (3) The Contractor shall include the provisions of this para- graph in every subcontract so that such provisions will be binding on each subcontractor. The Contractor shall take such action with respect to any subcontract as the Secretary of Housing and Urban Development or the Secretary of Labor shall direct as a means of enforcing such provisions. Previous edition is obsolete Page 4 of 4 form HUD -4010 (07/2003) ref. Handbook 1344.1 o O • < m O F 3 7 m m • O D m g od d F 1:3 • o S.' � 3 m S'3 °1 m 7IO p _ m - O c U o 0,o m 3 • N 3 C OA.m 3 [nO O W 0 0 w 3 O N 3 O cIg O � y n • g g ,o a m3 `^ m m 2 N Pas P y m 3 so 0 m < p' • O C ,0 m o y 2 kg, 3 vim P o O o s <. Ny O8 n N o• 9.. N 3 o I_. a to c x 3 �(0 CO N CO CD w I^ O 7 C N " a w d T C n Ia 10 w 0. c m a ' ? 5. m 5 nm 2 m 3 a o d 1' m m m � n n m 3 S m 0 - a m n s8 0 m m a a m 0 00 a 0. D a .a oC p w 4, u 0 m n 3 (1) NAME, ADDRESS, AND SOCIAL. SECURITY NUMBER OF EMPLOYEE PAYROLL NO. NAME OF CONTRACTOR ❑ OR SUBCONTRACTOR Ej Y a D 2 NO. OF wITNHOI.ONG 1.3 EXEMPTIONS 1 n U i C) 0 m0 Si x z FOR WEEK ENDING 3 m 0 Co 0 Co 0 m 0 m 0 In 0 w 0 In 0 OT. OR ST. Y (4) DAY AND DATE 1 c n O w n 1/1 0 O x m om n x O 0> Y rn ,- PROJECT AND LOCATION ADDRESS OMB No.: 1215-014£ Expires: 04/30/2009 O� m -0 -i '3 {m \\\\\\\Nm>0 zC o N Om 1 0 O D (8) DEDUCTIONS X Q -1, x0= 0 PROJECT OR CONTRACT NO. O S x 0 c0 0O 2 M 7C m O XDDmIn mom -I — m m 'BLS L661Od9 sn, fnDw o PI m b b 00 W 01:1.4 m ry N W p) 7 W 7 m N O Q W N m H N -1 O ^. fD 7 d W s a? a _� w el O m... ❑ 1 y' b b N Rl O d m0-0 mCa m .< 1 3 Q a o W m m 1w� am �.< m y 7 5 YI �. 3-o N 5 0 3< co w '- r m 5 o wR N m 5 w 0. a. 7 8 7 W o tr0 a 'i7 W - t0.0 W9 5-' 9- '<„, m W< O W C co 7 n3.0 to W m 7 m C 7 m 0 _ W m 0 w a Q W 0 afp co' 0 C 3 w -m W 0 mm O�w i3O 77?)j w .0d N as Qc m o 0 a `n. D -o w o. 7 W 0 m3 mp m-'1 NOm7. 0 7 b m- 3.< o nww awoS mm oWo 5. a.T N 3 0 3 am 7 CD m o co m a') -i b? U O' n.0011 N n, 0 s< t0 O E 0 m w 3 o w 3 W n nr..m ---3 3 0 7 o _1 w n 0 w m 0 4-6, - m °000 0 0 7 v'0 p N 0 0- -. 7 7 N a ou;�y m ao- a °g� W m 3 a ?T.: = d 0 C -=.; rn °}, -9 n D- m o 0 ? o W -v 0 0 [� 7 0 y fa Icin D Q c `Of 53 w Q• N h w -n w m c N a C 282°2 R' 7Sa _ W m m 0 0 N° m 0 �• O O9 w m C' m W W w 5 W m 3 ' N a 0. O m m O.m 5 0 -o m m 7 3 P. W O' N 7> 7 W O 2,77 p p0� m°) nom W 2.8.— n y x. cc Co 0 y m Ng W K ONwCr 63 al 01 vwa C y d 0 . c -=', 7 1 K 5'o w Or m 7 m W D)410 W N p w cntj3 �. w 0 J`< �-nm -8(7,4111 W CDD w 0m mDW0 ID a y 3 O- V N 2� 0 CT rn s< Co,< 0 b 5, � W bp 0 m7 0 VW N w O O 7 c) O q 0 cZ m 0 nr7-00 0 nll w ay o �UN 0 0 w m00. O --p Q W Wn. W a y W CL D 7 3 :ow coma. - a W W m. m. w 3 5 3 am m W .30 W d� C Z. 0) 0 0)5_. w 7 a �H- A w a• -T O 3 0 a 0 O. 0 W n (0 0 0 w O 0 0 Q O 0 - m O O O 3 3 0 7 0 1 2 REMARKS: EXCEPTION (CRAFT) EXPLANATION SNOI1d3DX3 --i Fit d co0 c m m w 3 0 co b W 0 m 3 0 0. 0- 0- 117 - CD (b) WHERE FRINGE BENEFITS ARE PAID IN CASH DEED OF TRUST (AGAPE Pregnancy Resource Center) 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): AGAPE PREGNANCY RESOURCE CENTER, a Texas non-profit corporation Grantor's Mailing Address (including county): AGAPE Pregancy Resource Center 104 East Main Street 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, Texas Beneficiary: City of Round Rock, Texas, a Texas corporation Beneficiary's Mailing Address (including county): City of Round Rock Attn: Community Development Coordinator 221 East Main Round Rock, Texas 78664 Williamson County, Texas Note(s) Date: , 2006 00102339/vr Amount: $116,961.00 Maker (whether one or more): AGAPE PREGANCY RESOURCE CENTER Payee: CITY OF ROUND ROCK, TEXAS, a Texas corporation Final Maturity Date: As provided in the Note. Terms of Payment: As provided in the Note. Obligation Date: , 2006 Agreement: Community Development Block Grant Public Facilities Loan Agreement Loan amount: $116,961.00 Borrower: AGAPE Pregnancy Resource Center Lender: City of Round Rock Property (including any improvements): The certain real property more particularly described as Lot 7 and five feet and ten inches off the West side of Lot 6, Block "22", Original City of Round Rock, a Subdivision in Williamson County, Texas, according to the map or plat thereof recorded in Cabinet A, Slides190-191, Plat Records of Williamson County, Texas, 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 $ 370,000.00 of the 2nd of February 2006, executed by Grantor, payable to the order of Independent Bank (herein "Financial Institution"), including without limitation the liens evidenced by that certain deed of trust and security agreement, of even date, executed by Grantor in favor of Financial Institution and recorded in the real property records of Williamson County, Texas. Other Exceptions to Conveyance and Warranty: 1. Note dated of even date herewith, between Grantor and Beneficiary (the "Note"). All obligations and covenants in the Note shall terminate on the date Beneficiary, in its sole discretion, issues a release of all present and future rights to establish or enforce the Deed of Trust lien that secures the Note. The release shall be in such form as to 2 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. 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. not use any portion of the Property for anything other than a service center to provide pregnancy services, counseling and classes; 2. keep the Property in good repair and condition; 3. pay all taxes and assessments on the Property when due; 4. preserve the lien's priority as it is established in this Deed of Trust; 5. 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; 6. deliver the insurance policy to Beneficiary and deliver renewals to Beneficiary at least ten (10) days before expiration; 7. keep any buildings occupied as required by the insurance policy; 8. 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; 9. 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; 10. comply at all times with the terms, representations, and conditions of the Note; and 11. comply at all times with the requirements, covenants, terms and conditions of the Obligation. 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 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 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 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. 5. be indemnified by Beneficiary against all costs, expenses, and liabilities incurred by Trustee for acting in the execution or enforcement of the trust created by this deed of trust, which includes all court and other costs, including attorney's fees, incurred by Trustee in defense of any action or proceeding taken against Trustee in that capacity. General Provisions 1. If any of the Property is sold under this Deed of Trust, Grantor shall immediately surrender possession to the purchaser. If Grantor fails to do so, Grantor shall become a tenant at sufferance of the purchaser, subject to an action for forcible detainer. 2. If Grantor transfers any part of the Property without Trustee's prior written consent, Trustee may declare the Note secured by this Deed of Trust immediately payable and invoke any remedies provided in this Deed of Trust for default. If the Property is residential real property containing fewer than five dwelling units or a residential manufactured home occupied by Grantor, exceptions to this provision are limited to (a) a subordinate lien or encumbrance that does not transfer rights of occupancy of the Property; (b) creation of a purchase -money security interest for household appliances; (c) transfer by devise, descent, or operation of law on the death of a co -Grantor; (d) 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 8. 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 5 not in default under the Note or this Deed of Trust. Grantor will apply all rent and other income and receipts to payment of the Note and performance of this Deed of Trust, but if the rent and other income and receipts exceed the amount due under the Note and Deed of Trust, Grantor may retain the excess. If Grantor defaults in payment of the Note or performance of this Deed of Trust, Beneficiary may terminate Grantor's license to collect and then as Grantor's agent may rent the Property if it is vacant and collect all rent and other income and receipts. Beneficiary neither has nor assumes any obligations as lessor or landlord with respect to any occupant of the Property. Beneficiary may exercise Beneficiary's rights and remedies under this paragraph 8 without taking possession of the Property. Beneficiary shall apply all rent and other income and receipts collected under this paragraph 8 first to expenses incurred in exercising Beneficiary's rights and remedies and then to Grantor's obligations under the Note and this Deed of Trust in the order determined by Beneficiary. Beneficiary is not required to act under this paragraph 8, and acting under this paragraph 8 does not waive any of Beneficiary's other rights or remedies. If Grantor becomes a voluntary or involuntary bankrupt, Beneficiary's filing a proof of claim in bankruptcy will be tantamount to the appoint of a receiver under Texas law. 9. The lien created by this Deed of Trust will be subordinate to the lien securing payment of a note in the original principal amount of THREE HUNDRED AND SEVENTY THOUSAND AND 00/100 DOLLARS ($ 370,000.00), which is dated February 2, 2006, executed by Grantor, payable to the order of Independent Bank, and more fully described in a deed of trust recorded in Document No. 2006008162 of the real property records of Williamson County, Texas. If default occurs in payment of any part of principal or interest of that $ 370,000.00 note or in observance of any covenants of the deed of trust securing it, the entire debt secured by this Deed of Trust will immediately become payable at the option of Beneficiary. 10. 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. 11. Grantor represents that this Deed of Trust and the Note are given as security for money provided for home repairs on the Property. 12. 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. 13. 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. 6 14. 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. 15. 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. 16. When the context requires, singular nouns and pronouns include the plural. 17. The term "Note" includes all sums secured by this Deed of Trust. 18. This Deed of Trust shall bind, inure to the benefit of, and be exercised by successors in interest of all parties. 19. If Grantor and Maker are not the same person, the term "Grantor" shall include Maker. EXECU'I'BD AND DELIVERED as of the date first above written. GRANTOR: AGAPE Pregnancy Resource Center By: Name: Title: 7 ACKNOWLEDGMENT STATE OF TEXAS COUNTY OF WILLIAMSON This instrument was acknowledged before me on this the day of 2006 by as on behalf of AGAPE Pregnancy Resource Center. PLEASE RETURN TO: Sheets & Crossfield, P.C. 309 E. Main St. Round Rock, Texas 78664 Notary Public, State of Texas 8 REAL ESTATE LIEN NOTE (AGAPE Pregnancy Resource Center) Date: , 2006 Maker (whether one or more): AGAPE PREGNANCY RESOURCE CENTER, a Texas non-profit corporation Maker's Mailing Address (including county): AGAPE Pregnancy Resource Center 104 East Main Street Round Rock, Texas, 78664 Williamson County Payee: CITY OF ROUND ROCK, TEXAS Property: Lot 7 and five feet and ten inches off the West side of Lot 6, Block "22", Original City of Round Rock, a Subdivision in Williamson County, Texas, according to the map or plat thereof recorded in Cabinet A, Slides 190-191, Plat Records of Williamson County, Texas. 1. Place for Payment (including county): CITY OF ROUND ROCK Attn: Community Development Coordinator 221 East Main Street Round Rock, Texas 78664 Williamson County or any other place that Payee may designate in writing. 2. Principal Amount: ONE HUNDRED SIXTEEN THOUSAND NINE HUNDRED SIXTY-ONE AND NO/100 DOLLARS ($116,961.00) 3. Annual Interest Rate: 0% 4. Maturity Date: The date the Project, described in the Community Development Block Grant Public Facilities Loan Agreement is completed, evidenced by the issuance of a Certificate of Occupancy by the City. 00! 02336/vr 5. Annual Interest Rate on Matured, Unpaid Amounts: 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 10 of this Note. 6. Maker's Promise to Pay a. Purpose This Note implements requirements applicable to assistance furnished by Payee to Maker under a program to help low to moderate income persons 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 construction of improvements on the Property, for use by Maker as a service center providing pregnancy testing, counseling, and classes. 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. 7. Terms of Payment: a. Subsidy Repayment Obligation Principal In return for assistance Maker has received with respect to construction of improvements on 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 11. 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 the date stated in Paragraph 4. If the Property is sold, leased or there is a transfer of title of the property, including transfer by contract for deed, within the time period this Note is in place, Maker shall repay the principal loan amount to Payee. If there is no sale, lease, or transfer of title of the Property within of the time period this Note is in place, the loan shall be forgiven. 8. 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 Institution as defined below, which Notes are secured by the Senior Lien as defined below, and as renewed, extended, re -amortized, or otherwise adjusted from time to time; provided, however, that the renewal, extension, or 2 other credit extension does not constitute an increase in the unpaid principal balance of the Financial Institution's 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 11 of this Note. d. If Maker defaults in the payment of this Note or in the performance of any obligation in any instrument securing or collateral to this Note, Payee may declare the unpaid principal balance and earned interest on the Note immediately due. Maker and each surety, endorser, and guarantor waive all demand for payment, presentation for payment, notice of intention to accelerate maturity, notice of acceleration of maturity, protest, and notice of protest, to the extent permitted by law. e. IF MAKER SHALL DEFAULT, BREACH, OR COMMIT AN UNCURED EVENT OF DEFAULT WITH RESPECT TO THE LOAN AGREEMENT THAT IS DATED , 2006 AND EXECUTED BY MAKER AND PAYEE, THE DEFAULT UNDER THE LOAN AGREEMENT SHALL BE A DEFAULT UNDER THIS NOTE. 9. Additional Definitions: a. "Bona Fide Net Resale Proceeds" means the amount calculated by the Note Holder by subtracting from the contract sales price between the Maker and the proposed buyer for the Property the amounts due on the Closing Date on any "Senior Liens" and on "Maker's Other Liens", and also subtracting the amount of any reasonable and customary sales expenses paid by the Maker in connection with the sale, each as determined by the Note Holder. If any part of the contract sales price for the Property is paid in the form of a promissory Note, or any thing of value other than lawful money of the United States, the Note Holder is hereby authorized to assign a fair market value thereto. Maker agrees to accept such thing of value at such assigned fair market value as part of maker's equity, or to allow it to be retained by the Note Holder as Alternate Principal, as the Note Holder in its sole discretion may determine. b. "Closing Date" means the date of closing of Maker's sale of the Property to a buyer, or if there is no formal closing, the date on which the conveyance (deed) is recorded. 3 c. "Financial Institution" means Independent Bank. d. "CDBG" means Community Development Block Grant program. e. "HUD " means the United States Department of Housing and Urban Development. f. "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. "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. h. "Senior Lien Note" means another Note in the original principal amount of $370,000.00, of the 31st of January 2006, executed by Maker, payable to the order of Financial Institution, and fully described in the Senior Lien. i. "Senior Lien" means a deed of trust recorded or to be recorded in the real property records of Williamson County, Texas. g. j. "Subordinate Security Instrument" means the instruments identified in Paragraph 9.a. 10. 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. 11. 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 12: 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. 4 ii. Any Transfer of the Property. Any transfer of the Property or any interest therein (including a beneficial interest) within of the time period this Note is in place 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 11. 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. iii. The Property or Maker is not Eligible under CDBG. The Maker is in default under this Note, if: (1) at the time the Note was signed by Maker, the Property: (a) did not become the principal office 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; or (2) 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 these activities, 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. iv. 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 Institution's $ 370,000.00 Note or in observance of any obligations or covenants of any instruments securing it, the debt evidenced by this $116,961.00 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 5 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. v. Any Refinancing of the Senior Lien Note. If either the Senior Lien Note is 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 7. vi. 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 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 11.c. c. Payment of Note Holder's Costs and Expenses If the Note Holder has notified Maker to pay immediately in full under Paragraph 11 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 11, the Note Holder 6 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. 12. 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. 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 I, or at a different address, if Maker is given a notice of that different address. 13. 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. 14. 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. 15. 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. 16. 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 16, upon full prepayment under Paragraph 10, upon payment of all amounts due upon Default under Paragraph 11, or upon recordation of a deed -in -lieu of foreclosure. 17. 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. PLEASE RETURN TO: AGAPE Pregnancy Resource Center By: Name: Title: Sheets & Crossfield, P.C. 309 E. Main St. Round Rock, Texas 78664 8 DATE: July 20, 2006 SUBJECT: City Council Meeting - July 27, 2006 ITEM: 11.D.1. Consider a resolution authorizing the Mayor to execute a Community Development Block Grant funding agreement in the amount of $116,961.00 with Agape Pregnancy Resource Center for facility expansion. Department: Planning and Community Development Staff Person: Mona Ryan, Community Development Coordinator Justification: AGAPE provides services to women and families with planned and unplanned pregnancies. The expansion to the facility located at 104 E. Main Street will be used to provide pregnancy testing at no cost to the clients, including referrals from Texas DHS. The new area will also be used for counseling and classes taught on subjects such as financial, parenting, and computer skills and others. Funding: Cost: $116,961 Source of funds: Community Development block Grant Outside Resources: N/A Background Information: This activity was approved by Council in the 2005-2006 Second Program year Action Plan, adopted by Resolution R -05-08-11-11B1 approved on August 11, 2005. This money will be used to expand the existing facility by 2,800 square feet to provide additional room for counseling, classes, and storage. 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 DOCUMENT FOLLOWS COMMUNITY DEVELOPMENT BLOCK GRANT PUBLIC FACILITIES LOAN AGREEMENT Effective Date: JUL1( 21 , 2006 This Community Development Block Grant Public Facilities Loan Agreement (the "Loan Agreement"), is between AGAPE PREGNANCY RESOURCE CENTER, a Texas non-profit corporation (the "Borrower"), and the CITY OF ROUND ROCK, a Texas home -rule municipality (the "City"). Recitals: WHEREAS, the City has received certain funds from the United States Department of Housing and Urban Development under Housing and Community Development Act of 1974, as amended, which City intends to use to make the Loan to Borrower; and WHEREAS, making the Loan to Borrower, which will be secured by the Security Agreements, will enable Borrower to construct the Project on the Mortgaged Property; and WHEREAS, as part of the consideration for the Loan, Borrower has agreed that the Land will remain for the Restricted Period subject to the Right to Substitute; NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties agree as follows: ARTICLE I. Terms of Loan Agreement 1.1. Definitions. As used in this Loan Agreement and any attachment or exhibit incorporated in it the terms defined in the Public Facilities Definitions, attached hereto and incorporated herein as Exhibit "A" to this Loan Agreement and by this reference have the meanings assigned to each term. 1.2. Purpose and Amount of Loan. The Loan is for the purpose of implementing and carrying out the Project as further described in the Statement of Work, attached hereto and incorporated herein as Exhibit "B", including developing and constructing Improvements to the Mortgaged Property. 1.3. The Note. The Loan to be made hereunder shall be evidenced by the Note. 1.4. Terms of Payment. The Loan to be made hereunder shall bear interest at the rate specified in the Note and shall be paid in accordance with the terms and conditions of the Note of even date with this Loan Agreement. 00102291/vr R -04.07 -2.1 -IID! 1.5. Term. The term of this Loan Agreement and the Loan shall begin on the Effective Date of this Loan Agreement and end on the completion of the Project, evidenced by the issuance of the Certificate of Occupancy by the City. 1.6. Rights and Obligations. The holders of the Note, and Borrower, hereby expressly reserve all rights to jointly amend any provisions of this Loan Agreement, to consent to or waive any departure from the provisions of this Loan Agreement, to amend or consent to or waive departure from the provisions of the Note, and to release or otherwise deal with any collateral security for payment of the Note. ARTICLE II. Performance and Compliance with All Laws 2.1. Agreement to Perform. Borrower agrees to perform the Project and to produce reports as necessary until completion of the Project in accordance with the terms and conditions of this Loan Agreement. 2.2. Prevailing Documents. In the event any conflict should arise between the terms of this Loan Agreement and the Loan Documents, this Loan Agreement shall prevail, then the other Loan Documents. 2.3. Performance within Legal Requirements. It is expressly understood that Borrower's performance shall be in strict compliance with all Legal Requirements, which in no way is meant to constitute a complete compilation of all duties imposed upon Borrower by law or administrative ruling or to narrow the standards which Borrower must follow. Borrower shall promptly refund any funds not expended in accordance with the Legal Requirements or the Loan Documents. 2.4. Legal Requirements Governing Property and Improvements. The Land and the Improvements and the intended use thereof by Borrower comply with all Legal Requirements, including, without limitation, all applicable restrictive covenants, zoning ordinances, subdivision and building codes, flood disaster laws, applicable health and environmental laws and regulations and all other ordinances, orders or requirements issued by any state, federal or municipal authorities having or claiming jurisdiction over the Mortgaged Property. 2.5. Compliance with Legal Requirements. Borrower will promptly and faithfully comply with, conform to, and obey all Legal Requirements, whether the same shall necessitate structural changes in, improvements to, or interfere with the use or enjoyment of, the Mortgaged Property. 2.6. Interpretation of Legal Requirements. In the event a question should arise as to the interpretation of the Federal Requirements governing a particular aspect of the Project under this Loan Agreement, City's interpretation shall prevail and Borrower shall not be liable for relying on such interpretation if such interpretation is in writing and is later found to be incorrect. 2 ARTICLE III. Conditions of Funding 3.1. Conditions for Borrower. The obligation of City to make a loan as provided in this Loan Agreement is subject to the receipt by City from Borrower of the Note in compliance with the terms hereof and, in City's sole discretion, to the following additional conditions precedent: 3.1.1. Truth and Accuracy. The truth and accuracy, as of the Effective Date of this Loan Agreement, of all representations and warranties made herein by Borrower and the receipt by City of such documents, certificates of officers of Borrower, and such other evidence, as City reasonably shall have requested respecting the meeting of these conditions. 3.1.2. Receipt of Documents. The receipt by City from Borrower of the additional Loan Documents executed by Borrower and copies of all other documents required in connection with this Loan Agreement and the transactions contemplated thereby, or respecting the business and affairs of Borrower, that City may reasonably have requested. 3.1.3. Effective Date of Agreement. The receipt by City from Borrower of the Loan Documents, each dated effective the same date as this Loan Agreement, executed by Borrower, satisfactory in form and substance to City and certified, when appropriate, by proper corporate officers and Governmental Authorities. 3.1.4. Superior Lien. The agreement by Superior Lienholder, if applicable, that this Loan may have a security interest in the Property. 3.1.5. Acquisition of Mortgaged Property. If not previously owned, the acquisition of the Mortgaged Property in the name of Borrower and the filing of a warranty deed in the name of Borrower in the Williamson County, Texas, real property records. 3.1.6. Receipt of Title Policy. The receipt by City of a mortgagee's title policy covering the Mortgaged Property free and clear of all liens and other encumbrances other than the Superior Lien, as applicable. ARTICLE IV. Application of Proceeds 4.1. Purpose of Loan. Borrower agrees that it will apply the funds received by it under this Loan Agreement solely for the purpose set forth in Section 1.2. of this Loan Agreement. 4.2. Payment of Additional Project Costs. Borrower agrees to provide additional, unencumbered funds to pay all additional Project costs incurred as a result of cost overruns or unanticipated expenses necessary to complete the Project according to the terms and conditions of this Loan Agreement. 3 ARTICLE V. Disbursement of Loan 5.1. Advances. Provided such cost are authorized by the Approved Budget, attached hereto and incorporated herein as Exhibit "C", and are allowable under Article VI. of this Loan Agreement, Borrower may make a request to the City for an Advance not more often than once monthly. Borrower's request shall state the cost of any land acquired, the cost of the architectural, engineering or other planning professional service necessary to design the Project, the cost of any labor and materials purchased and incorporated in the Project and any prorated cost of Contractor's overhead minus the aggregate of previous disbursement payments. 5.2. Request for Disbursement Requirements. Borrower shall cause the request for disbursement of a payment, with respect to the same period covered by the request, to include: 5.2.1. the Draw Request; 5.2.2. a monthly performance report, in a manner or form approved by the City; 5.2.3. a list showing the quantity and price of materials purchased and incorporated into the Project during the previous month(s), together with any invoices of the suppliers thereof or other information requested by the City; 5.2.4. a receipted statement or an invoice that supports all expenditures and sets forth the charges made for work performed from each consultant(s), design professional(s), contractor(s), subcontractor(s) or material supplier(s); 5.2.5. if disbursement of a payment is requested on the basis of materials or equipment not incorporated in the Project but delivered and suitably stored at the Project site or at another location agreed to in writing between such contractor and Borrower, the Draw Request shall be accompanied by such bills of sale, data and other procedures satisfactory to City substantiating Borrower's title to such materials or equipment or otherwise protecting Borrower's interest. Disbursement of such payment amounts will not include any amount for such contractor's overhead or profit or relieve contractor of its obligation to protect and install such materials or equipment in accordance with the requirements of the Loan Documents and to restore damaged or defective work. If materials or equipment are stored at another location they shall be stored in a bonded and insured facility, accessible to City and Borrower, and shall be clearly marked as property of Borrower; 5.2.6. a statement, in such form as required by the City, showing the names and address of each of the contractor's and subcontractor's employees and the hours of labor the contractor, the subcontractor and employees of each spent during the request period in the performance of their work; 5.2.7. any Compliance Affidavits or such other affidavits or reports as may be reasonably required by the City to document City's liabilities under this Loan Agreement; 4 5.2.8. a monthly Subcontractor Report; and 5.2.9. an updated progress schedule. 5.3. Disbursement of Payment Amounts not to Include. Borrower shall cause the request for disbursement of a payment not to include the following: 5.3.1. any request for disbursement of a payment on account of changes in work with respect to the Project which have not been properly included in a change order; or 5.3.2. any request for disbursement of an amount the Borrower does not intend to pay because of a dispute or other reason. 5.4. Project Status Affidavits and Releases. Borrower shall provide affidavits setting forth the status of the Project and releases of any applicable mechanics and materialman's lien(s) with respect to the Mortgaged Property. 5.5. Draw Request Requirements. City will disburse a payment to the Borrower only when the Borrower furnishes a Draw Request accompanied by any additional certificates, evidence, information or clarification required by City as a condition to City's approval of any requested disbursement of a payment, including any requirements in this Loan Agreement. 5.6. Conditions of Disbursement. City will make disbursement of a payment to the Borrower after the Effective Date of this Loan Agreement only if the conditions for funding described in Article III. and the conditions of loan and disbursement of proceeds advanced to Borrower under the Loan described in Article IX of this Loan Agreement are satisfied, and when the Borrower furnishes a Draw Request accompanied by any additional certificates, evidences, information or clarification required by City as a condition to City's approval of any requested disbursement of any payment. ARTICLE VI. Allowable Costs 6.1. Incurred in Performance of Agreement. Costs will be considered allowable only if incurred directly and specifically in the performance of and in compliance with this Loan Agreement and in conformance with the standards and provisions of the Obligations and the Approved Budget, as the same may be amended from time to time with the City's prior written consent. Under no circumstances shall any portion of an Advance be used for any purpose other than the payment of those costs and fees approved by the City as legitimately relating to the cost of completing the work required by this Loan Agreement, or for an amount in excess of the amount authorized to be paid Borrower in the Approved Budget unless otherwise agreed to in writing by the City. 5 ARTICLE VII. Security 7.1. Security Agreements. Borrower shall execute and deliver to City on the Effective Date of the Agreement the Security Agreements as security for payment of the Note. The Note and Security Agreements shall be in a form satisfactory to City. In the event of default by the Borrower in the payment of the Indebtedness or the performance of any Obligation, City may, at its sole option, in addition to all other remedies, take possession of the Mortgaged Property given as security, provided City has given Borrower the right to cure the default as provided in subsection 16.1.3. of this Loan Agreement and such default is continuing. ARTICLE VIII. Representations 8.1. Representations and Warranties. In order to induce the City to make the Loan hereunder Borrower represents and warrants as follows: 8.1.1. No Litigation. Except as disclosed in writing to City, there are no (i) judicial, administrative, mediation or arbitration actions, suits, or proceedings, at law or in equity, before any Governmental Authority or arbitrator pending or threatened against or affecting Borrower, any Signatory Party, or involving the Mortgaged Property, (ii) outstanding or unpaid judgments against Borrower, any Signatory Party, or the Mortgaged Property, or (iii) defaults by Borrower with respect to any order, writ, injunction, decree, or demand of any Governmental Authority or arbitrator. Borrower or any Signatory Party are not a party to any action, suit or proceeding pending or concluded, nor, to the knowledge and good faith belief of the Borrower, is Borrower or any Signatory Party threatened with any suit or proceedings which may bring into question the validity of the transaction herein contemplated or might result in any adverse change in the business or financial condition of the Borrower or any Signatory Party from that evidenced by the financing statement provided to City by Borrower or any Signatory Party at or before funding. 8.1.2. No Bankruptcy. No bankruptcy or insolvency proceedings are pending or contemplated by Borrower or any Signatory Party or, to the best knowledge, information, and belief of Borrower or any Signatory Party, against Borrower or any Signatory Party or by or against any endorser, cosigner or guarantor of the Note. 8.1.3. Legal Authority. Borrower represents and warrants that it possesses the legal authority, pursuant to any proper, appropriate and official motion, resolution or action passed or taken, to enter into the Loan Documents. The person(s) executing the Loan Documents on behalf of Borrower represents and warrants that they have been fully authorized by Borrower to execute the Loan Documents on its behalf and to legally bind Borrower to all the terms, performances and provisions of the Loan Documents. If there is a dispute as to the legal authority of either Borrower or of the person signing the Loan Documents to enter into the Loan Documents, City shall have the right, at its option, to either temporarily suspend or permanently terminate this Loan Agreement. If City has suspended or terminated this Loan Agreement for 6 the reasons enumerated in this subsection 8.1.3., Borrower is liable to City for any money it has received from City for performance of this Loan Agreement. 8.1.4. No Default. Borrower or any Signatory Party is not in default on any obligations, covenants, or conditions contained in any bond, debenture, note, or other evidence of indebtedness or any mortgages or collateral instruments securing the same. Borrower also covenants that the making of this Loan Agreement and the consummation of the transaction contemplated herein will not violate any provision of law or result in any breach or constitute a default under any agreement to which Borrower or any Signatory Party is presently a party, or result in the creation of any lien, charge or encumbrance upon any of its property or its assets other than may be specifically allowed under the Loan Documents including without limitation the City's liens and security interests. 8.1.5. No Assignment. Borrower and each Signatory may not assign this Loan Agreement or any other Loan Document or any of Borrower's or Signatory's rights under it without City's prior written consent, and any attempted assignment is void. 8.1.6. Taxes. Borrower and each Signatory Party have filed all federal, state, county, municipal, and city income and other tax returns required to have been filed by them (including, without limitation, those required under the Tax Code) and have paid all taxes and related liabilities which have become due pursuant to such returns or pursuant to any assessments received by them. Neither Borrower nor any Signatory Party knows of any basis for any additional assessment in respect of any such taxes and related liabilities. Borrower and each Signatory Party believe that their respective tax returns properly reflect the income and taxes of Borrower and each Signatory Party for the periods covered thereby, subject only to reasonable adjustments required by the Internal Revenue Service or other applicable tax authority upon audit. Borrower or any Signatory Party shall promptly and completely file all tax returns which are required and has made or will make provision for the payment of all taxes which have or may become due pursuant to said returns or pursuant to any assessments received by Borrower or any Signatory Party. Borrower or any Signatory Party covenants that no tax liability has been asserted against Borrower or any Signatory Party by the Internal Revenue Service or any other taxing authority for taxes in excess of those already paid and Borrower or any Signatory Party knows of no basis for any such deficiency assessment. 8.1.7. Correct Information. In the event reports required to be submitted by Borrower pursuant to this Loan Agreement, are deemed by City to be incomplete or unsatisfactory, Borrower agrees to make such revisions or changes as may be required by City and at no additional cost to City. 8.1.8. Mailing Address. Borrower's mailing address, as set forth in subsection 16.1.1. of this Loan Agreement or as changed pursuant to the provisions hereof, is true and correct. 8.1.9. No Reliance on City. Borrower is experienced in the ownership and operation of properties similar to the Mortgaged Property, and Borrower and City have and are relying solely upon Borrower's expertise and business plan in connection with the ownership and operation of 7 the Mortgaged Property. Borrower is not relying on City's expertise or business acumen in connection with the Mortgaged Property. 8.1.10. Environmental and Hazardous Substances. Without regard to whether City has, or hereafter obtains, any knowledge or report of the environmental condition of the Mortgaged Property: (a) The Mortgaged Property and the operations conducted thereon do not violate any applicable law, statute, ordinance, rule, regulation, order, or determination of any Governmental Authority or any restrictive covenant or deed restriction (recorded or otherwise), including without limitation all applicable zoning ordinances and building codes, flood disaster laws and Environmental Laws. (b) Without limiting subparagraph (a) immediately preceding, the Mortgaged Property and operations conducted thereon by the current owner or operator of such Mortgaged Property, are not in violation of or subject to any existing, pending, or threatened action, suit, investigation, inquiry, or proceeding by any Governmental Authority or non-governmental entity or person or to any remedial obligations under any Environmental Law. (c) All notices, permits, licenses, or similar authorizations, if any, required to be obtained or filed in connection with the ownership, operation, or use of the Mortgaged Property, including, without limitation, the past or present generation, treatment, storage, disposal, or release of a Hazardous Substance into the environment, have been duly obtained or filed. (d) The Mortgaged Property does not contain any Hazardous Substance. (e) Borrower has taken all steps necessary to determine and has determined that no Hazardous Substances have been generated, treated, placed, held, located, or otherwise released on, under, from, or about the Mortgaged Property. (f) Borrower has not undertaken, permitted, authorized, or suffered and will not undertake, permit, authorize, or suffer the presence, use, manufacture, handling, generation, transportation, storage, treatment, discharge, release, burial, or disposal on, in, under, from or about the Mortgaged Property of any Hazardous Substance or the transportation to or from the Mortgaged Property of any Hazardous Substance. (g) There is no pending or threatened litigation, proceedings, or investigations before or by any administrative agency in which any person or entity alleges or is investigating any alleged presence, release, threat of release, placement on, in, under, from or about the Mortgaged Property, or the manufacture, handling, generation, transportation, storage, treatment, discharge, burial, or disposal on, under, from or about the Mortgaged Property, or the transportation to or from the Mortgaged Property, of any Hazardous Substance. (h) Borrower has not received any notice, and has no actual or constructive knowledge, that any Governmental Authority or any employee or agent thereof has determined, 8 or threatens to determine, or is investigating any allegation that there is a presence, release, threat of release, placement on, in, under, from or about the Mortgaged Property, or the use, manufacture, handling, generation, transportation, storage, treatment, discharge, burial, or disposal on, in, under, from or about the Mortgaged Property, or the transportation to or from the Mortgaged Property, of any Hazardous Substance. (i) There have been no communications or agreements with any Governmental Authority or any private entity, including, but not limited to, any prior owners or operators of the Mortgaged Property, relating in any way to the presence, release, threat of release, placement on, under or about the Mortgaged Property, or the use, manufacture, handling, generation, transportation, storage, treatment, discharge, burial, or disposal on, in, under or about the Mortgaged Property, or the transportation to or from the Mortgaged Property, of any Hazardous Substance. (j) Neither Borrower nor, to the best knowledge, information and belief of Borrower, any other person, including, but not limited to, any predecessor owner, tenant, licensee, occupant, user, or operator of all or any portion of the Mortgaged Property, has ever caused, permitted, authorized or suffered, and Borrower will not cause, permit, authorize, or suffer, any Hazardous Substance to be placed, held, located, or disposed of, on, in, under or about any other real property, all or any portion of which is legally or beneficially owned (or any interest or estate therein which is owned) by Borrower in any jurisdiction now or hereafter having in effect a so-called "superlien" law or ordinance or any part thereof, the effect of which law or ordinance would be to create a lien on the Mortgaged Property to secure any obligation in connection with the "superlien" law of such other jurisdiction. (k) Borrower has been issued all required federal, state, and local licenses, certificates, or permits relating to the Mortgaged Property, and Borrower and its facilities, business assets, property, leaseholds, and equipment are in compliance in all respects with all applicable federal, state, and local laws, rules, and regulations relating to, air emissions, water discharge, noise emissions, solid or liquid waste disposal, hazardous waste or materials, or other environmental, health, or safety matters. 8.1.11. Separate Tax Parcel; Legal Lot. The Mortgaged Property is taxed separately without regard to any other real estate and the Land constitutes a legally subdivided lot or lots under all applicable Legal Requirements (or, if not subdivided, no subdivision or platting of the Land is required under applicable Legal Requirements), and for all purposes may be mortgaged, conveyed or otherwise dealt with as an independent parcel. 8.1.12. Location of Property. The Land is located wholly within the corporate limits of the City of Round Rock, Texas. 8.1.13. Utilities; Access. All utility services necessary and sufficient for the full use, occupancy, operation and disposition of the Land and the Improvements for their intended purposes are available to the Mortgaged Property, including water, storm sewer, sanitary sewer, gas, electric, cable and telephone facilities, through public rights-of-way or duly recorded perpetual private easements; all streets, roads, highways, bridges and waterways necessary for 9 access to and full use, occupancy, operation and disposition of the Land and the Improvements have been completed, have been dedicated to and accepted by the appropriate municipal authority and are open and available to the Land and the Improvements without further condition or cost to Borrower; all curb cuts, driveways and traffic signals shown on the survey delivered to City prior to the execution and delivery of this Loan Agreement are existing and have been fully approved by the appropriate Governmental Authority. 8.1.14. No Lobbying; Disclosures. (a) No federal appropriated funds have been paid or will be paid, by or on behalf of Borrower, to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the award of federal appropriated funds in connection with this Loan, and its extension, continuation, renewal, amendment, or modification. (b) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan or cooperative agreement, it will complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. (c) Borrower shall insure that the anti -lobbying certification language substantially in the form set forth in this subsection 8.1.14. is included in any award documents for all subawards of funds Borrower makes available under this Loan Agreement at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. ARTICLE IX. Conditions of Loan and Disbursement of Loan Proceeds 9.1. Disbursement of Loan Proceeds. The making of the Loan and each disbursement of the Loan Proceeds hereunder shall be subject to the following conditions precedent: 9.1.1. True and Correct Statements. All of the representations and warranties contained in the Loan Documents shall be true and correct in all material respects on and as of the Date of this Loan Agreement and continuing to be true and correct on the date of each disbursement of a payment. 9.1.2. Satisfactory Form of Documents. All actions undertaken in connection with the transaction contemplated by the Loan Documents and all documents incidental thereto shall be satisfactory in form, scope and substance to City, and City shall have received copies of all documents which it may have requested in connection with said transaction in form, scope and substance reasonably satisfactory to it. 10 9.1.3. Approvals and Consents. All necessary approvals or consents, if any such approvals or consents are required of Governmental Authorities having jurisdiction with respect to the construction herein contemplated, shall have been obtained, and failure to have obtained prior to the issuance of the Certificate of Occupancy such consents shall constitute a default hereunder. 9.1.4. Receipt of Federal Funds. The receipt by City of adequate Federal Funds to meet City's liabilities under the Loan Documents. If adequate funds are not available for City to make payments or advance funds under the Loan Documents, City shall notify Borrower in writing within a reasonable time, not to exceed thirty (30) calendar days, after such fact has been determined. City may, at its option, either reduce the amount of its liability or terminate this Loan Agreement in accordance with subsection 13.1.1.(c) of this Loan Agreement. It is expressly understood that the Loan Documents in no way obligate City funds or any other monies or credits of the City of Round Rock, unless a match of City's funds are required by the HUD Law, and then only to the extent of such matching funds requirement. 9.1.5. Corporate Authority. If Borrower, or entity constituting part of Borrower, or any guarantor of the Loan to be made hereunder, is a corporation, there shall be delivered to City (with respect to each such corporation, if there be more than one) a copy of the record(s) of minutes of the Board of Directors of each such corporation specifically authorizing its officers to execute this Loan Agreement and all other Loan Documents necessary for the consummation of this transaction. The Secretary or Assistant Secretary of such corporation(s) shall certify the record(s) of the minutes of the Board of Directors to be true. 9.1.6. Approvals of other parties. All necessary approvals, releases, or consents required with respect to this transaction by any mortgagee or other party having any interest in the Mortgaged Property shall have been obtained, and failure to have obtained such consents shall constitute default hereunder. 9.1.7. Good Standing. None of the following exists: (a) an Event of Default; or (b) the requested Advance, plus the sum of (i) the initial Advance, (ii) the previous Advances (including retained amounts deemed to have been advanced) and (iii) other sums disbursed by the City under this Loan Agreement, exceeds the available amount; or (c) an order or decree in any court of competent jurisdiction enjoins or prohibits Borrower, any person or the City or any of them from performing their respective obligations under this Loan Agreement; or (d) any cost or portion thereof with respect to the Project which: (i) has been paid, reimbursed or is subject to payment or reimbursement, from any other source other than Borrower's own funds; or 11 (ii) was incurred prior to the Effective Date or after the maturity date specified in the Note, unless specifically authorized in writing by the City; or (iii) was incurred other than in strict accordance with the terms of this Loan Agreement, including all exhibits attached hereto and the Legal Requirements; or (iv) has not been billed to the City on or before the earlier of (i) sixty (60) calendar days following billing to Borrower, or (ii) within ninety (90) calendar days following termination of this Loan Agreement; or (v) is not an allowable cost identified in OMB Circular A-87, A-122 or in Article VI of this Loan Agreement; or (vi) is incurred with respect to any activity of Borrower after the City has requested that Borrower furnish data concerning such action prior to proceeding further, unless and until Borrower was thereafter advised by the City to proceed. ARTICLE X. Affirmative Covenants 10.1. Affirmative Covenants. Until payment in full of the Note and all of the other payments due City hereunder, and the performance of all of the terms, conditions and provisions of the Loan Documents, Borrower and its assigns shall cause the following to be done: 10.1.1. Compliance Information. Borrower will deliver to City within ten (10) calendar days after its receipt of any written request therefor, such information as the City may reasonably determine in its sole discretion necessary to determine whether the Borrower is complying with its covenants and agreements contained in the Loan Documents or whether an Event of Default has occurred. So long as Borrower commences the process of obtaining such information and notifies City of such action within the ten (10) calendar day period and proceeds diligently toward obtaining such information, Borrower shall have an additional twenty (20) calendar days to furnish such information to City. 10.1.2. Work Required. Borrower will perform or cause to be performed the work described in this Loan Agreement with respect to the Project, including, without limitation, the work described in the Statement of Work. 10.1.3. Diversity. Borrower shall employ an open, competitive, and non- discriminatory process to select its contractors and consultants, consistent with the Statement of Work. 10.1.4. Subcontracting. Borrower agrees that any work or service which is allowed to be subcontracted under this Loan Agreement shall be subcontracted by written contract or agreement and shall be subject by its terms, unless specific waiver is granted, in writing, by City, to each and every provision of this Loan Agreement. Borrower agrees to 12 assume the responsibility for performance and financing compliance by a subcontractor under this Loan Agreement. Borrower agrees that no subcontract placed under this Loan Agreement shall provide for payment on a cost plus a percentage of cost basis. 10.1.5. No Obligation to Others. City shall not be obligated or liable under this Loan Agreement to any party other than Borrower for payment of any monies or for provision of any goods or services. 10.1.6. Payment of Amounts Due. Subject to the provisions of Section 14.1. of this Loan Agreement, Borrower will pay punctually and fully each installment payment of principal and interest to become due on the Note in accordance with the terms of this Loan Agreement and the Note. 10.1.7. Payment of Impositions. Borrower will duly pay and discharge, or cause to be paid and discharged, the Impositions not later than the earlier to occur of (i) the due date thereof, (ii) the date any fine, penalty, interest, or cost may be added thereto or imposed, or (iii) the date prior to any date any lien may be filed for the nonpayment thereof (if such date is used to determine the due date of the respective item), and Borrower shall deliver to City a written receipt evidencing the payment of the respective Imposition, except that Borrower shall not be required to pay any such Impositions so long as the validity thereof shall be actively contested in good faith by proper proceedings, provided that any such Imposition shall be placed in escrow during such proceedings and shall be paid forthwith upon a final adjudication and order to pay from a court of competent jurisdiction. 10.1.8. Payment for Labor and Materials. Borrower will promptly pay all bills for labor, materials, supplies, and specifically fabricated materials incurred in connection with the Mortgaged Property and never permit to exist in respect of the Mortgaged Property or any part thereof any lien or security interest, even though inferior to the liens and security interests hereof, for any such bill, and in any event never permit to be created or exist in respect of the Mortgaged Property or any part thereof any other or additional lien or security interest on a parity with, superior, or inferior to any of the liens or security interests hereof, except for the Permitted Exceptions in the Deed of Trust. 10.1.9. Payment of Other Amounts. Borrower will pay the installments due on all indebtedness with respect to the Mortgaged Property to any other lenders, either heretofore or hereafter incurred or assumed by it when and as the same shall become due and payable, and will observe, perform and discharge all of the covenants, conditions and obligations which are imposed on it by any and all agreements securing or evidencing any encumbrance upon the Mortgaged Property securing this Loan so as to prevent an occurrence of any act or omission which, under the provisions thereof, may be declared to be a default thereunder which, could result in a lien being placed upon the Mortgaged Property. In the event any such payment is not paid, Borrower will immediately provide notice to City describing such default. However, giving such notice will in no way waive any other covenant in the Loan Documents. 10.1.10. Payment of Borrower Expenses. Subject to the provisions of Section 14.1. of this Loan Agreement, Borrower will pay on demand all reasonable and bona fide out -of - 13 pocket costs, fees, and expenses and other expenditures, including, but not limited to, reasonable attorneys' fees and expenses, paid or incurred by City or Trustee to third parties incident to this Loan Agreement (including without limitation, reasonable attorneys' fees and expenses in connection with the negotiation, preparation, and execution hereof and of any other Loan Documents and any amendment hereto or thereto, any release hereof, any consent, approval or waiver hereunder or under any other Loan Documents, the making of any advance under the Note, and any suit to which City or Trustee is a party involving the Deed of Trust, the Loan Documents or the Mortgaged Property) or incident to the enforcement of the Indebtedness or the Obligations or the exercise of any right or remedy of City under any of the Loan Documents, and including without limitation: (a) Expenses. Borrower will pay all costs and taxes that might be imposed or be determined to be payable in connection with the execution, issuance or delivery of the Loan Documents, or in connection with any modification, amendment or alteration of the terms and provisions thereof, and to hold City and any other holder of the Note harmless against any and all liability with respect to the Loan Documents, all of which agreements of Borrower shall survive payment of the Note. (b) Loan Expenses. If required by City, Borrower will pay in addition to any other amounts a monthly servicing fee due with each installment payment in an amount stated in the Note. (c) Expenses of Collection or Enforcement. If Borrower shall at any time default in making any payment on the Note, Borrower will, to the full extent permitted by law, pay to the holder of the Note, in addition to any other amounts that may be due from Borrower to such holder, an amount equal to the reasonable costs and expenses of collection including reasonable attorney's fees, court costs or enforcement costs incurred by holder in such collection. (d) Expenses of Correction by City of Default. In the event of any default by Borrower in the full performance or observance of any covenant or agreement contained in any of the Loan Documents, City may, upon notice to Borrower at the address and in the manner specified in subsection 16.1.1. of this Loan Agreement, at City's sole option (but without any obligation of City to do so), take such steps as reasonably may be deemed by City in its sole discretion, necessary or appropriate to correct or remedy such default in whole or in part, and all costs and expenses incurred by City in taking such steps (including reasonable attorney's fees and court costs) shall, subject to an opportunity to cure such default as provided by subsection 16.1.3. of this Loan Agreement, be due and payable by Borrower, with interest thereon from time of incurrence thereof by City at the maturity rate stated in the Note. The taking of such action shall not be deemed to be a waiver by City of the default of Borrower or a waiver of any other available right or remedy by reason of such default. (e) Expenses of Amendments, Waiver, Consents, and Refinancing. In the event Borrower proposes to take or omit to take any act or action prohibited or required by any provision of the Loan Documents, and Borrower requests City to consent thereto or waive compliance with any such provision, then, in each such case, Borrower will reimburse or pay to 14 City any reasonable expenses incurred by City in connection with such consent or waiver, or such modification or amendment. 10.1.11. Excess Payments. Borrower shall refund to the City within ten working days of the City's request, any sum of money which has been paid by the City and which the City at any time thereafter determines: expenditure. (a) has resulted in overpayment to Borrower; or (b) is not supported by adequate documentation to fully justify the 10.1.12. Disallowed Costs. (a) Should any expense or charge for which payment has been made be subsequently disallowed or disapproved as a result of any auditing or monitoring by the City or HUD, or any other state or federal agency, Borrower will refund, subject to an opportunity to cure such default as provided by subsection 16.1.3. of this Loan Agreement, such amount to the City within ten (10) working days of written notice to Borrower specifying the amount disallowed. (b) Refunds of disallowed costs may not be made from these or any other funds received from or through the City. 10.1.13. Deobligation of Funds. In the event that actual expenditure rates deviate from Borrower's provision of a corresponding level of performance, as specified in the Statement of Work or the Approved Budget, Borrower grants City, subject to an opportunity to cure such default as provided by subsection 16.1.3. of this Loan Agreement, the right to reappropriate or recapture any such under -expended funds for City's use with respect to any other activity or project. 10.1.14. Repair. Borrower will keep the Mortgaged Property in reasonably good order and condition and will make all repairs, replacements, renewals, additions, betterments, improvements, and alterations thereof and thereto, interior and exterior, structural and nonstructural, ordinary and extraordinary, foreseen and unforeseen, which are necessary or reasonably appropriate to keep same in such order and condition. Borrower will prevent any act, occurrence, or neglect, which might impair the value or usefulness of the Mortgaged Property for its intended usage. In instances where repairs, replacements, renewals, additions, betterments, improvements, or alterations are required in and to the Mortgaged Property on an emergency basis to prevent loss, damage, waste, or destruction thereof, Borrower shall proceed to repair, replace, add to, better, improve, or alter same, or cause same to be repaired, replaced, added to, bettered, improved, or altered, notwithstanding anything to the contrary contained in subsection 11.1.2. hereof; provided, however, that in instances where such emergency measures are to be taken, Borrower will notify City in writing of the commencement of same and the measures to be taken, and, when same are completed, the completion date and the measures actually taken. 15 10.1.15. Protection of Lien Status. Borrower will protect and preserve the lien and security interest status of the Security Agreements on the date of execution of this Loan Agreement and will not permit to be created or to exist in respect of the Mortgaged Property or any part thereof, unless agreed to in writing by City, any lien or security interest on a parity with, superior to, or inferior to any of the liens or security interests hereof; except for the Permitted Exceptions in the Deed of Trust. 10.1.16. Insurance. Prior to commencing work with respect to the Mortgaged Property, Borrower, in accordance with the Insurance Requirement and Certificate of Insurance Form, attached hereto and incorporated herein as Exhibit "D" and at Borrower's own expense, will obtain, maintain and keep in full force and effect insurance coverages upon and relating to the Mortgaged Property with such insurers, in such amounts, in such manner, provide such notices and covering such risks as shall be requested by and satisfactory in writing to City. Borrower agrees to procure such required insurance coverages and deliver evidence of such coverages to City as required by the Insurance Requirement. In the event any insurance proceeds with respect to a policy described in the Insurance Requirement are paid, such proceeds thereof shall be paid to City to satisfy the balance owing on the Note at the time of the loss; the remainder of the insurance proceeds to be payable to Borrower. If the proceeds of the insurance together with such other funds as are available to Borrower are sufficient to pay for the restoration of the premises, Borrower may apply such funds to such restoration, provided the procedure to release such insurance proceeds for restoration are agreed to in writing between Borrower and City. It is expressly understood and agreed that the Insurance Requirement represents City's minimum requirements. Further, (i) the insolvency, bankruptcy or failure of any insurance company covering Borrower or the Mortgaged Property, (ii) the failure of any insurance company to pay claims occurring, or (iii) any exclusion from or insufficiency of coverage will not limit the amount of recovery City may have in the event of casualty, damage or other occurrence giving rise to a claim under the insurance provided by Borrower under this Loan Agreement. 10.1.17. Bonding Requirements. (a) Bonds, when required, must be executed on forms furnished by or acceptable to City. Borrower shall furnish City proof of an adequate bond prior to the earlier of (i) thirty (30) calendar days following the Effective Date of this Loan Agreement or (ii) payment of any Loan Proceeds to Borrower by City under this Loan Agreement. (b) If the surety on any bond furnished by Borrower is declared bankrupt or becomes insolvent or its right to do business is terminated in the State of Texas or it ceases to meet the requirements of paragraph (c) below, Borrower must substitute immediately another bond and surety, both of which must be acceptable to City. (c) When Performance Bonds and/or Payment Bonds are required in accordance with this Loan Agreement, each bond must be issued in an amount of one hundred (100) percent of the Note, as security for the faithful performance of all of Borrower's obligations under this Loan Agreement. 16 10.1.18. Condemnation. Borrower will pay, or assign if requested by City, to City to satisfy the balance owing on the Note at the time of receipt of all amounts payable to or received by Borrower from condemnation of all or part of the Mortgaged Property, from private sale in lieu of condemnation, and from damages caused by public works or construction on or near the Mortgaged Property. 10.1.19. Enforcement of Leases. Borrower shall (i) submit any and all proposed Leases to City for approval prior to the execution thereof, (ii) duly and punctually perform and comply with any and all representations, warranties, covenants, and agreements expressed as binding upon the lessor under the Leases, (iii) maintain the Leases in full force and effect during the term thereof, (iv) appear in and defend any action or proceeding in any manner connected with the Leases, (v) deliver to City true, correct and complete copies of the Leases, and (vi) deliver to City such further information, and execute and deliver to City such further assurances and assignments, with respect to the Leases as City may from time to time request. Without City's prior written consent, Borrower shall not (i) do or knowingly permit to be done anything to impair the value of any of the Leases, (ii) except for security or similar deposits, collect any of the Rent more than one (1) month in advance of the time when the same becomes due under the terms of any Lease, (iii) discount any future accruing Rents, (iv) amend, modify, rescind, conceal, surrender or terminate any of the Leases, or (v) assign or grant a security interest in or to any of the Leases and/or Rents except for Permitted Exceptions in the Deed of Trust. 10.1.20. Environmental and Hazardous Substances. Borrower will: (a) not use, generate, manufacture, produce, store, release, discharge, treat, or dispose of on, in, under, from or about the Mortgaged Property or transport to or from the Mortgaged Property any Hazardous Substance or allow any other person or entity to do so; (b) keep and maintain the Mortgaged Property in compliance with, and shall not cause or permit the Mortgaged Property to be in violation of, any Environmental Law; (c) establish and maintain, at Borrower's sole expense, a system to assure and monitor continued compliance with Environmental Laws and the exclusion of Hazardous Substances from the Mortgaged Property, by any and all owners or operators of the Mortgaged Property, which system shall include annual reviews of such compliance by employees or agents of Borrower who are familiar with the requirements of the Environmental Laws. Borrower shall furnish an environmental report or such supplemental report to City within sixty (60) calendar days after City so requests, together with such additional information as City may reasonably request. 10.1.21. Notice of Hearings. Borrower will give City prior notice, in writing, of any public hearing or meeting before any public authority which may, in any manner, affect the Mortgaged Property. 10.1.22. Inspection of Books and Records. Borrower shall allow Monitors from time to time to inspect all books and records relating to Borrower's financial condition and to the Indebtedness, and to make and take away copies of such books and records. If Borrower is a corporation, limited liability company, partnership, joint venture, trust or other type of business 17 association, Borrower shall provide Monitors with any and all financial statements and other documents and make any and all disclosures to Monitors with respect to any of the constituent parties, as Borrower is required to provide and make, and in the manner required to be provided and made, with respect to Borrower pursuant to this subsection 10.1.22. 10.1.23. Monitoring, Inspection and Audit. Borrower will permit Monitors to enter the Land and Improvements at all reasonable times, and inspect the Mortgaged Property with or without prior notice to BorrowerAGAPE. Monitors will have the right, at all reasonable hours and without causing any unreasonable interruption to the operations of Borrower, to carry out monitoring and evaluation activities to ensure adherence by Borrower to the provisions of this Loan Agreement and to ensure that the use of any Loan Proceeds paid to Borrower are for eligible purposes in accordance with the Legal Requirements, to inspect and audit all books, accounts, reports, files, records, contracts, and all other papers relating to the Mortgaged Property, the Project or the use of Loan Proceeds; and to be given free access to the Mortgaged Property for the purpose of such monitoring, inspection or audit and also for the purpose of determining the condition of the premises. In addition, Borrower shall provide to Monitors such audited management letters or financial statements as the Monitors may require in their sole discretion. 10.1.24. Property Reports. With respect to the Project, Borrower will maintain full and accurate books of account and other records reflecting the results of the operations of the Mortgaged Property and will furnish, or cause to be furnished, to City: (i) on or before January 31 of each calendar year during the term of this Loan Agreement, a written report, in a form acceptable to City, (ii) immediate notice of any material adverse change in the Mortgaged Property's financial condition or business prospects or any lapse of coverage with respect to the Insurance Requirement, (iii) all reports required by the Statement of Work, and (iv) upon request of Monitors, and at Borrower's expense, such other operating, financial, insurance coverage and credit information as Monitors may reasonably request with respect to the Mortgaged Property. At any time and from time to time Borrower shall deliver to Monitors such other financial data as Monitors shall reasonably request with respect to the ownership, maintenance, use and operation of the Mortgaged Property, and Monitors shall have the right, at reasonable times and upon reasonable notice, to audit, examine, and make copies or extracts of Borrower's books of account and records relating to the Mortgaged Property to enable the Monitors to comply with its record keeping and reporting obligations and to determine the level and adequacy of the Borrower's compliance with this Loan Agreement, all of which shall be maintained and made available to Monitors for such purpose at the address specified herein for Borrower or at such other location as City may approve. Upon Monitors' request, Borrower shall also furnish Monitors with convenient facilities and all books and records necessary for an audit of such statements. 10.1.25. Annual Inventory. Borrower agrees to provide City during the term of this Loan Agreement with an inventory of the real and personal property acquired in connection with this Loan Agreement no later than October 31 and within thirty (30) calendar days following the termination date of this Loan Agreement. Borrower shall maintain adequate accountability and control over such property, maintain adequate property records in a form acceptable to City, and 18 perform an annual physical inventory which shall be submitted to City on or before October 31 of each year during the term of this Loan Agreement. 10.1.26. Tax on Deed of Trust. If at any time any law shall be enacted imposing or authorizing the imposition of any tax upon the Deed of Trust, or upon any rights, titles, liens, or security interests created by the Loan Documents, or upon the Indebtedness or any part thereof (whether pursuant to the Tax Code or otherwise), Borrower will immediately pay all such taxes, provided that if such law as enacted makes it unlawful for Borrower to pay such tax, Borrower shall not pay nor be obligated to pay such tax. Nevertheless, if a law is enacted making it unlawful for AGAPE to pay such taxes, then AGAPE must prepay the Indebtedness in full within sixty (60) calendar days after demand therefor by City. 10.1.27. Statement of Unpaid Balance. At any time and from time to time, AGAPE will furnish promptly, upon the request of City, a written statement or affidavit, in a form satisfactory to City, stating the unpaid balance of the Indebtedness and that there are no offsets or defenses against full payment of the Indebtedness and the terms hereof, or if there are any such offsets or defenses, specifying them. 10.1.28. HUD Contact. Borrower understands and agrees that all direct contact with HUD, without the written consent of City, over any matter related to the Project or the Mortgaged Property under this Loan Agreement shall be made solely by City. 10.1.29. Advances and Program Income Accounts. (a) Borrower's Accounts. Borrower shall maintain a separate numbered account into which the Initial Advance plus all Advances (but no other funds) will be deposited and against which checks shall be drawn only for payment of bills for expenses incident to the Mortgaged Property and for other items in the Approved Budget (the "Advances Account"). Borrower shall also maintain a separate numbered account into which Receipts (but no other funds) will be deposited and against which checks shall be drawn only for payment of bills for expenses incident to the Mortgaged Property, for payment of any Program Income, if any, due the City under this Loan Agreement, and for other items in the Approved Budget (the "Program Income Account"). (b) Status of Accounts following an Event of Default. After an Event of Default, the City may apply any funds on deposit in the Advances Account and the Program Income Account to the satisfaction of any covenant or condition hereof. (c) Advances Account and Program Income Account Covenants. Borrower further covenants that with respect to the Advances Account and the Program Income Account: (i) such accounts shall contain only the funds received pursuant to this Loan Agreement and that no other funds shall be mingled with funds in such account. Borrower shall support all checks and withdrawals from said accounts with itemized documentation of costs under this Loan Agreement; 19 with the City; (ii) if required by City, such accounts shall be joint accounts (iii) City shall have the right at any time to enforce its right to recapture any funds in the accounts as provided in subsection 10.1.13. of this Loan Agreement without any notice or other obligation to Borrower; (iv) City shall have a lien upon any balance in said accounts paramount to all other liens, which lien shall secure the repayment of any Initial Advance, excess payment, disallowed costs or other amounts due City hereunder. Borrower further covenants that it will execute any and all security agreements and other documents the City determines necessary to evidence said lien; and (v) the accounts shall be maintained under conditions approved by City, in a financial institution, with federal deposit insurance coverage and the balance, if any, exceeding the federal deposit insurance coverage shall be collaterally secured. (d) Program Income. Borrower shall report to City all program income received or accrued within thirty (30) calendar days following the end of Borrower fiscal year during the term of the Loan. Alternative arrangements to this requirement may be made upon written request to and approval by the City. (i) Records of the receipt and disposition of program income must be maintained by Borrower in the same manner as required for other Loan Agreement funds, and reported to the City in the format prescribed by the City. The City shall deposit in its CDBG program income account all program income funds remitted to the City under the Loan Documents by Borrower and may use the funds for any CDBG eligible activity as provided in 24 CFR § 570.504(b). (ii) It is Borrower's responsibility to obtain from the City a prior determination as to whether or not income arising directly or indirectly from this Loan Agreement, or the performance of any obligations under the Loan Document, is program income. The City has final authority to make a determination as to whether such income is program income or not. Borrower is responsible to the City for the repayment of any and all amounts determined by the City to be program income in accordance with this subsection 10.1.29.(d), unless otherwise approved in writing by the City. (iii) Borrower shall include this subsection 10.1.29.(d) in its entirety in all of its sub -contracts with a HUD Borrower which involve other income-producing services or activities. 10.1.30. Deposit Account Security Agreement. Borrower agrees upon receipt of any Program Income to immediately enter into a Deposit Account Security Agreement with the City and deposit all program income into the Program Income Account created by the Deposit Account Security Agreement. 20 10.1.31. Ownership of Property. Title of all notes receivable, capital acquisitions, supplies, materials or any other property purchased with funds received under this Loan Agreement and in accordance with the provisions of this Loan Agreement, is vested with Borrower and possession of such property shall, upon termination of this Agreement, revert to City unless otherwise provided for by City in writing. It is understood by Borrower that City shall retain a second lien position on any and all real property purchased with funds under this Agreement, unless otherwise provided for by City. Borrower shall take all necessary and reasonable steps to ensure City the lien position. Written notification must be given to City within five (5) calendar days of delivery of non -expendable property in order for City to effect identification and recording for inventory purposes. Borrower shall maintain adequate accountability and control over such property, shall maintain adequate property records and perform an annual physical inventory. 10.1.32. Reversion of Assets. Upon expiration of this Loan Agreement, the Mortgage Property is either (i) used to meet one of the national objectives set forth in 24 CFR 570.201 until five (5) years after expiration of the term of this Loan Agreement, or (ii) if the property is not used in accordance with this subsection 10.1.32. of this Loan Agreement, Borrower shall pay City an amount equal to the current market value of the property less any portion of the value attributable to expenditures of non-CDBG funds for the acquisition of, or improvement to, the Property. 10.1.33. Confidentiality. Borrower agrees, at all times, to keep confidential all client and personnel identifying information and any information received by Borrower unless required by law to release such information. 10.1.34. Conflict of Interest. (a) Borrower covenants that neither it nor any member of its governing body presently has any interest or shall acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Loan Agreement. Borrower further covenants that in the performance of this Loan Agreement no person having such interest shall be employed or appointed as a member of its governing body. (b) Borrower further covenants that no member of its governing body or its staff or employees shall possess any interest in or use their position for a purpose that is or gives the appearance of being motivated by desire for private gain for themselves, or others; particularly those with which they have family, business, or other ties. (c) No officer, member, or employee of City and no member of its governing body who exercises any functions or responsibilities in the review or approval of the undertaking or carrying out of this Agreement, shall (i) participate in any decision relating to this Loan Agreement which affects his personal interest or the interest of any corporation, partnership, or association in which he has a direct or indirect interest, or (ii) have any interest, direct or indirect, in this Loan Agreement or the proceeds thereof. 21 (d) However, in the event Borrower determines that exception to HUD's conflict of interest requirements is appropriate and in accordance with 24 CFR §570.611(d), Borrower may prepare the documentation required by this HUD provision and transmit such material to City. Upon receipt, City may submit the request to HUD for a determination. The parties agree to accept the final HUD determination. 10.1.35. Nepotism. Borrower shall not employ in any paid capacity any person who is a member of the immediate family of: (i) a person who is currently employed by Borrower, or (ii) a current City employee who has discretionary authority with respect to this Loan Agreement, or (iii) a member of the City or Borrower's governing body, without prior written approval by City. The term "member of the immediate family" includes: wife, husband, son, daughter, mother, father, brother, sister, grandfather, grandmother, grandson, granddaughter, brother-in-law, sister -in law, son-in-law, daughter-in-law, mother-in-law, father-in-law, aunt, uncle, nephew, niece, first cousin, stepparent, stepchild, half-brother, and half-sister. 10.1.36. Contract Close Out. The contract close out package, together with a final Payment Request, for the time period covered by the last invoice requesting an Advance, shall be submitted by Borrower to the City with respect to the Project within ninety (90) calendar days following the close of the term of this Loan Agreement, unless extended in writing by the City, using the format as provided to Borrower by the City. 10.1.37. Audit. Borrower agrees to comply with the audit requirements of OMB Circular No. A-133, as amended, covering Borrower's fiscal year until the termination of this Loan Agreement. 10.1.38. Disclosures. If at any time Borrower shall become aware of the existence or occurrence of any financial or economic conditions or natural disasters which might have a Material Adverse Effect, Borrower shall promptly notify City of the existence or occurrence thereof, unless City has actual notice thereof, and of Borrower's opinion as to what effect such may have on the Mortgaged Property or Borrower. Borrower shall also give prompt notice to City, unless City has actual notice thereof, of (i) the serious illness or death of any principal or key employee of Borrower, (ii) any litigation or dispute, threatened or pending against or affecting Borrower, a Signatory Party, or the Mortgaged Property which could have a Material Adverse Effect, (iii) any Event of Default, (iv) any default by Borrower or any acceleration of any indebtedness owed by Borrower under any contract to which Borrower is a party, and (v) any change in the character of Borrower's business as it existed on the date hereof which could have a Material Adverse Effect. 10.1.39. Itemized Statements. During the construction of any Improvements to the Mortgaged Property, Borrower will furnish from time to time, whenever requested, statements showing itemization of prospective expenditures, expenditures to date, items due and unpaid, and itemized statements with receipted bills and other evidence reasonably satisfactory to City. All records required to be retained shall be retained for a period of five years from the date of the record. 22 10.1.40. Filing Documents. Borrower will file for record the Security Agreements that establish valid lien(s) or restrictions on the Mortgaged Property, free and clear of all liens and encumbrances, except liens for taxes not yet due and Permitted Exceptions in the Deed of Trust. 10.1.41. Rights to Proposal and Contractual Material. All reports, charts, schedules, data stored on computer disk, or other appended documentation to any proposal, content of basic proposal, or contracts and any responses, inquiries, correspondence, and related material prepared or submitted by Borrower (including, without limitation, Borrower's independent professional associates and consultants and subcontractors), except as required by subsection 10.1.42., shall become the property of City, whether the Project is completed or not. Upon this Loan Agreement's expiration or termination City may require any or all of these items to be delivered to City upon written notice to Borrower. However, Borrower has the right to use such proposal and contractual material. 10.1.42. Copyrights and Rights in Data. Where activities supported by this Project produce original computer programs, writings, sound recordings, pictorial reproduction, drawings, or other graphical representation and works of any similar nature (the term computer program includes executable computer programs and supporting data in any form), City has the right to use, duplicate, and disclose, in whole or in part, in any manner, for any purpose whatsoever and have others do so. If the material is copyrightable, Borrower may copyright such, and City reserves a royalty -free, non-exclusive, and irrevocable license to reproduce, publish and use such materials, in whole or in part and to authorize others to do so. 10.1.43. Publications. All published material and written reports submitted under this Project must be originally developed material unless otherwise specifically required. When material, not originally developed, is included in a report, it shall have the source identified. This identification may be in the body of the report or by footnote. This provision is applicable when the material is in a verbatim or extensive paraphrase format. 10.1.44. Publicity. Where such action is appropriate as determined by City, Borrower shall publicize the activities conducted by Borrower under this Loan Agreement. Any news release, sign, brochure, or other advertising medium disseminating information prepared by or distributed for Borrower shall contain a statement that the project is made possible by funding from the U.S. Department of Housing and Urban Development through the City of Round Rock. 10.1.45. Delivery of Contracts. If requested by City, Borrower will deliver to City a true, correct and complete copy of each Contract within five (5) calendar days after the request. Within ten (10) calendar days after a request by City, Borrower shall prepare and deliver to City a complete listing of all Contracts, showing date, term, parties, subject matter, whether any defaults exist, and other information specified by City, of or with respect to each of such Contracts, together with a true, correct and complete copy thereof (if so requested by City). 10.1.46. Women- and Minority -Owned Businesses (W/MBE). Brower will use its best efforts to afford small businesses, minority business enterprises, and women's business enterprises the maximum practicable opportunity to participate in the performance of this 23 Agreement. As used in this Agreement, the terms "small business' means a business that meets the criteria set forth in section 3(a) of the Small Business Act, as amended (15 U.S.C. 632), and "minority and women's business enterprise" means a business at least fifty-one (51) percent owned and controlled by minority group members or women. For the purpose of this definition, "minority group members" are Afro-Americans, Spanish-speaking, Spanish surnamed or Spanish -heritage Americans, Asian -Americans, and American Indians. Borrower may relay on written representations by businesses regarding their status as minority and female business enterprises in lieu of an independent investigation. 10.1.47. Further Assurances and Corrections. From time to time, at the request of City, Borrower will (i) promptly correct any defect, error, or omission which may be discovered in the contents of this Loan Agreement or in any other Loan Document or in the execution or acknowledgment thereof; (ii) execute, acknowledge, deliver, record and/or file such further instruments (including, without limitation, amendments to this Loan Agreement, further deeds of trust, security agreements, financing statements, continuation statements and assignments of rents) and perform such further acts and provide such further assurances as may be necessary, desirable, or proper, in City's opinion, to carry out more effectively the purposes of this Loan Agreement and the Loan Documents and to subject to the absolute assignments, liens and security interests hereof and thereof any property intended by the terms hereof or thereof to be covered hereby or thereby, including without limitation, any renewals, additions, substitutions, replacements, or appurtenances to the Mortgaged Property; (iii) execute, acknowledge, deliver, procure, file, and/or record any document or instrument (including without limitation, any financing statement) deemed advisable by City in City's sole discretion to protect the liens and the security interests herein granted against the rights or interests of third persons; and (iv) pay all costs connected with any of the foregoing. ARTICLE XI Negative Covenants 11.1. Negative Covenants. Borrower hereby unconditionally covenants and agrees with City until the entire Indebtedness shall have been paid in full and all of the Obligations shall have been fully performed and discharged as follows: 11.1.1. Use Violations. Borrower will not use, maintain, operate, or occupy, or allow the use, maintenance, operation, or occupancy of, the Mortgaged Property in any manner which (i) violates any Legal Requirement, (ii) may be dangerous, unless safeguarded as required by law and/or appropriate insurance, (iii) constitutes a public or private nuisance, (iv) without the prior written consent of City, generates revenue from any program which is for the purpose of housing persons recently released from prison, in a halfway -house, or who are parolees or are under mandatory supervision, or similar programs, or (v) makes void, voidable, or cancelable, or increases the premium of, any insurance then in force with respect thereto. 11.1.2. Waste: Alterations. Borrower will not commit or permit any waste or impairment of the Mortgaged Property and will not (subject to the provisions of subsections 2.4. and 10.1.14. hereof) without the prior written consent of City, make or permit to be made any alterations or additions to the Mortgaged Property of a material nature. 24 11.1.3. Replacement of Fixtures and Personalty. Borrower will not, without the prior written consent of City, permit any of the Fixtures or Personalty to be removed at any time from the Land or Improvements unless the removed item is removed temporarily for purposes of maintenance and repair or, if removed permanently, is replaced by an article of equal suitability and value, owned by Borrower, free and clear of any lien or security interest except as may be approved in writing by City. 11.1.4. Change in Zoning: Borrower will not (i) seek or acquiesce in a zoning reclassification, zoning variance or special exception to zoning of all or any portion of the Mortgaged Property, (ii) grant or consent to any dedication, plat, or restriction (or allow any easement to become enforceable by prescription), (iii) seek or acquiesce to any imposition of any addition of a Legal Requirement or any amendment or modification thereof, covering all or any portion of the Mortgaged Property, without City's prior written consent which will be granted or denied within thirty (30) working days following receipt of the proposed reclassification, variance, exception or other request. 11.1.5. No Drilling. Borrower will not, without the prior written consent of City, permit any drilling or exploration for or extraction, removal, or production of, any Minerals from the surface or subsurface of the Land regardless of the depth thereof or the method of mining or extraction thereof. 11.1.6. Additional Obligations. Except as necessary to complete the Project, Borrower shall not create or incur any additional liability, whether contingent or non -contingent, with respect to the Mortgaged Property that is secured by a lien on the Mortgaged Property, except as specifically allowed or contemplated pursuant to the Loan Documents or, in writing, by the City. ARTICLE XII Events of Default 12.1. Events of Default. The principal indebtedness evidenced by the Note or the unpaid balance thereof at the time outstanding, shall be due and payable at the election of the City if any one or more of the following events shall occur for any reason whatsoever, and whether such occurrences shall be voluntary, involuntary or come about or be effected by operation of law, or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or Governmental Authority and is not cured or corrected within the times and in the manner required to cure or correct such event of default by Borrower as required by subsection 16.1.3. of this Loan Agreement: 12.1.1. Payment of Indebtedness. complete payment (by payment or by credit as portion of the Indebtedness as and when the same due date thereof stipulated in the Loan Documents, Default shall be made in the timely and provided in the Note) of any installment or shall become due and payable, whether at the upon acceleration or otherwise; or 25 12.1.2. False Representation. Any representation or warranty made by the Borrower herein or any statement or representations made in any certificate, statement or opinion delivered to the City pursuant to this Loan Agreement, the Note, or any other Loan Documents shall prove to have been incorrect in any material respect as of the date made; or 12.1.3. Performance of Obligations. Default shall be made in the performance or observance of any of the Obligations; or 12.1.4. Default Under Other Lien Documents. Borrower shall default or commit an event of default under and pursuant to any other mortgage or security agreement which covers or affects any part of the Mortgaged Property; or 12.1.5. Abandonment. Borrower abandons or removes all or substantially all of the Improvements, Personalty or Fixtures without written approval from the City; or 12.1.6. Discontinuance of Operations. Borrower vacates, or discontinues operations of or from, any substantial portion of the Mortgaged Property without written approval from the City; or 12.1.7. Bankruptcy or Insolvency. Borrower shall admit in writing its inability to pay its debts generally as they become due, make an assignment for the benefit of creditors, file a petition in bankruptcy, be adjudicated insolvent or bankrupt, petition or apply to any tribunal for the appointment of any receiver or trustee thereof or of any substantial part of its property or commence any proceedings under any arrangement, readjustment of debt, or statute of any jurisdiction, whether now or hereafter in effect; or there is commenced against Borrower any such proceeding which remains undismissed for a period of thirty (30) calendar days; or 12.1.8. Receivership. Borrower by any act indicates its consent to, approval of or acquiescence in any such proceeding or in the appointment of any receiver or of any trustee for Borrower with respect to a substantial part of its property; or 12.1.9. Inability to Pay Judgment. If any final judgment for the payment of money that is not fully covered by liability insurance and is in excess of $10,000.00 shall be rendered against the Borrower concerning a claim filed with respect to the Mortgaged Property and not discharged within thirty (30) calendar days from the date of final disposition thereof including the exhaustion of all appellate rights; or 12.1.10. Non-compliance with Loan Documents. If Borrower defaults, breaches, or commits an event of default that is uncured pursuant to any other Loan Document; or 12.1.11. Insurance not Maintained. If Borrower does not keep in full force and effect or any agreement with a contractor of Borrower constructing Improvements or installing Personalty does not require such contractor to keep in full force and effect any insurance coverages required by the Insurance Requirement of this Loan Agreement. 26 ARTICLE XIII Remedies 13.1. Remedies in the Event of Default. Upon the occurrences of any Event of Default as stated in Article XII of this Loan Agreement, and subject to the limitations of liability described in Section 14.1. of this Loan Agreement, City may at any time, and without further notice take any or all of the following action: 13.1.1. If Borrower fails to cure such Event of Default within the time period provided by subsection 16.1.3. of this Loan Agreement: (a) demand repayment of the Note and Borrower shall remit such amount to City within ten (10) calendar days thereof; (b) cancel, suspend or terminate payment of any funds due Borrower under this Loan Agreement; (c) cancel, suspend or terminate this Loan Agreement in whole or part; (d) initiate legal action and foreclose under any deed of trust or security agreement; and (e) pursue such other measures as may be lawful, including suing for specific performance, for the recovery of damages and for the release or return of all or part of the funds committed herein. 13.1.2. If the Event of Default is material, in addition to the remedies described in subsection 13.1.1. and any and all other rights, remedies and recourses available to it under any of the Loan Documents or otherwise available at law or in equity: (a) suspend payment of any funds due the Borrower under this Loan Agreement; (b) suspend the right of the Borrower to incur any additional obligations under this Loan Agreement in whole or part; or (c) suspend the right of the Borrower to continue any performance under this Loan Agreement in whole or part. ARTICLE XIV Indemnification 14.1. Nonrecourse Liability of the Borrower. Notwithstanding any provision or obligation to the contrary set forth in any other section of this Loan Agreement, (i) the liability for the 27 payment of any amounts by the Borrower parties under this Loan Agreement, or the Loan Documents, shall be limited to the Mortgaged Property subject to the Security Agreements or to such other security as may from time to time be given or have been given for payment of the Obligations, and any judgment rendered against the Borrower parties under this Loan Agreement, or the Security Agreements shall be limited to the Mortgaged Property subject to the Security Agreements and any other security so given for satisfaction thereof; and (ii) no deficiency or other personal judgment shall be sought or rendered against the Borrower parties, their successors, transferees or assigns, in any action or proceeding arising out of this Loan Agreement, the Security Agreements, or any judgment, order or decree rendered pursuant to any such action or proceeding; provided, however, that nothing in this Loan Agreement, or the Security Agreements, shall limit the City or Trustee's ability to exercise any right or remedy that it may have with respect to any property pledged or granted to the City or Trustee, subject to the non-recourse provisions provided hereunder, or to exercise any right against the Borrower parties or any other person or entity on account of any damage caused by fraud or intentional misrepresentation by the Borrower or other Borrower parties or any intentional damage of the Mortgaged Property is found. Furthermore, the Borrower and other Borrower parties shall be fully liable for the misapplication of (i) proceeds paid prior to any foreclosure under any and all insurance policies, under which the City is named as insured, by reason of damage, loss or destruction to any portion of the Mortgaged Property, to the full extent of such misapplied proceeds and awards, (ii) proceeds or awards resulting from the condemnation, or other taking in lieu of condemnation, prior to any foreclosure of the Mortgaged Property, to the full extent of such misapplied proceeds and awards, (iii) rents, issues, profits and revenues received or applicable to a period prior to foreclosure, and (iv) proceeds from the sale of all or any part of the Mortgaged Property and any other proceeds that, under the terms hereof, should have been paid to the City or Trustee. The limit on the Borrower's liability set forth in this Section 14.1. shall not, however, be construed, and is not intended in any way, to constitute a release, in whole or in part, of the Obligations hereunder or a release, in whole or in part, or an impairment of the lien and security interest of the Security Agreements, or to preclude the City or Trustee from foreclosing the Security Agreements in case of any default or enforcing any other right of the City or Trustee or to alter, limit or affect the liability of any person or party who may now or hereafter or prior hereto guarantee, pledge, grant or assign its assets or collateral as security for, the Obligations under this Loan Agreement or the Loan Documents. 14.2. Hold Harmless and Indemnity. 14.2.1. Borrower shall perform all duties hereunder as an independent contractor and any of its employees performing work required by this Loan Agreement shall be deemed solely employees of Borrower or its subcontractor. Subject to Article XIV, Borrower shall save and hold harmless City, its officers, agents, and employees from any and all liability of any nature or kind on account of any claims, audit exceptions, demands, suits, or damages including reasonable attorneys' fees and court costs arising or resulting from injuries or damages sustained by any persons or property resulting in whole or in part from the performance or omissions of any employee, agent, or representative of Borrower. 28 14.2.2. Borrower undertakes to indemnify City from any and all liability, loss or damages City may suffer as a result of claims, demands, costs, or judgements against it arising out of the performance of the terms of this Loan Agreement. ARTICLE XV Waiver of Notice 15.1. Waiver of Notice. The Borrower hereby expressly waive any requirement for presentation, demand, protest, notice of protest or other notice or dishonor of any kind, other than the notice specifically provided for in this Loan Agreement. ARTICLE XVI Notices 16.1. Notices. 16.1.1. All notices, demands and communications provided for herein or made hereunder shall be delivered, or sent by certified mail, return receipt requested, addressed in each case as follows, until some other address shall have been designated in a written notice to the other party hereto given in like manner: If intended for Borrower: AGAPE Preganancy Resource Center Attn: Jo Markham Director of Development 104 E. Main Street Round Rock, Williamson County, Texas 78664 If intended for City: City of Round Rock Attn: Mona Ryan Community Development Coordinator Round Rock, Williamson County, Texas 78664 With a copy to: Sheets & Crossfield, P.C. Attn: Stephan L. Sheets City Attorney 309 East Main Street Round Rock, Williamson County, Texas 78664 16.1.2. and shall be deemed to have been given or made when so delivered or mailed, except as herein otherwise expressly provided. Notification of a change of address shall be delivered to City and Borrower within ten (10) calendar days of such change of address. 16.1.3. Notwithstanding anything herein contained in this Loan Agreement, the Note or the Loan Documents securing same to the contrary, it is agreed that City shall not declare any amounts owing in the Note immediately due and payable if default is made in the payment of any installment of principal or interest thereon, as and when the same is or becomes due, unless any such default has not been fully cured within ten (10) calendar days after notice of 29 such default shall have been given to Borrower. Further, notwithstanding anything herein to the contrary, it is agreed that the City shall not declare any amounts owing on the Note immediately due and payable in the event of a default or breach by Borrower of any of the covenants or obligations herein contained or contained in any instrument securing the payment of the Note or executed in connection herewith other than the covenant to timely pay installments of principal and interest on the Note, unless any such default has not been fully cured within thirty (30) calendar days after notice of such default or breach shall have been given to Borrower; provided, however, if Borrower commences the process of curing such default and notifies City of such action within such thirty day period, or within any subsequent thirty day period, and proceeds diligently and continuously toward fully curing such default, Borrower shall have an additional period, in increments of thirty (30) calendar days each, up to ninety (90) calendar days to fully cure such default. Any such notice shall be given in writing and shall be deemed to be given three (3) calendar days after the date such notice is deposited, postage prepaid, via certified mail, return receipt requested, in the U.S. mail addressed to Borrower at the address set forth in subsection 16.1.1. of this Loan Agreement. ARTICLE XVII Miscellaneous Provisions 17.1. Survival of Representations Covenants and Warranties. All representations, covenants and warranties contained herein shall survive the execution and delivery of the Loan Documents, any investigation at any time made by the City or on its behalf, and any sale or transfer of the Loan Documents. 17.2. Construction and Amendment. The Loan Documents constitute the entire agreement between the parties pertaining to the subject matter hereof and supersede all prior and contemporaneous agreements and understandings of the parties in connection therewith. These Loan Documents may not be changed, amended or terminated orally but only by agreement in writing and signed by the party against whom enforcement of any change, amendment or termination is sought. 17.3. Force Majeure. 17.3.1. The failure of a party to perform its obligations hereunder shall be excused to the extent, and for the period of time, such failure is caused by the occurrence of an event of Force Majeure. Force Majeure shall mean acts and events not within the control of the party claiming suspension, and which that party has been unable by the exercise of due diligence to avoid or prevent. Events of Force Majeure include, without limitation: Acts of God; strikes, lockouts or other industrial disputes; inability to obtain material, equipment or labor; epidemics, civil disturbances, acts of domestic or foreign terrorism, wars, riots or insurrections; landslides, lightning, earthquakes, fires, storms, floods or washouts; arrests and restraint of rulers and people; interruptions by government or court orders; present or future orders of any regulatory body having proper jurisdiction and authority; explosions; and breakage or accident to machinery. Force Majeure does not include economic or market conditions which affect a party's cost, but not its ability, to perform. 30 17.3.2. Nothing contained herein shall be construed to require a party to settle a strike or other labor dispute against its will. 17.3.3. The party invoking Force Majeure shall give prompt, timely and adequate notice to the other party, by facsimile transmission or telephone confirmed promptly thereafter in the manner and at the address set forth in subsection 16.1.1. of this Loan Agreement, and shall use due diligence to remedy the event of Force Majeure, as soon as reasonably possible. 17.4. Payment. The Borrower will pay to City at its notice address specified in subsection 16.1.1. of this Loan Agreement, or at such other address as it may designate in writing, all amounts payable with respect to the Loan Documents. 17.5. Successor and Assigns. All covenants, agreements, representations and warranties made in the Loan Documents or in certificates delivered in connection herewith shall, whether so expressed or not, bind and inure to the benefit of the successors and permitted assigns of the Borrower and City. 17.6. Counterparts. These Loan Documents may be executed in multiple originals. 17.7. Severability. In the event that any provisions of the Loan Documents or any other instrument executed at closing or the application thereof to any person or circumstances shall be declared to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remainder of such provisions and agreements shall nevertheless remain in full force and effect; and to this end, the provisions of all covenants, conditions and agreements described herein are deemed severable for this purpose. 17.8. No Waiver; Remedies Cumulative. No exercise, partial exercise, failure, forbearance or delay on the part of the City in exercising any power or right under the Loan Documents shall operate as a waiver of the power or right, except as specifically provided herein. No remedy conferred in the Loan Documents is intended to be exclusive of any other remedy, and each and every other remedy given hereunder or now or hereafter existing at law or in equity by statute or otherwise, may be sought by the enforcing party. 17.9. Execution by Additional Parties. When any Signatory Party joins in the execution of any of the Loan Documents, said party has done so for the purpose of consenting to all of the terms and conditions in such instrument and agrees by such execution to be bound hereby. 17.10. Survival of Obligations. All obligations of Borrower under the Loan Documents, which have not been fully performed, paid and satisfied at the termination of this Loan Agreement, shall survive the termination. 17.11. Alternative Dispute Resolution. City and Borrower shall submit in good faith to mediation before filing a suit for damages under this Loan Agreement. 31 17.12. Governing Law. The Loan Documents shall be governed by and interpreted in accordance with the laws of the State of Texas. Although drafted by the City, the Loan Documents shall be fairly construed, neither more strongly for nor against any party. 17.13. Performance; Venue. The Loan Documents shall be performed in Williamson County, Texas. Venue shall be in Williamson County, Texas. EXECUTED AND DELIVERED effective as of the date first above written. Borrower: AGAPE BY: NAME: TITLE: ncy Resource Center City: City of BY: yle axwell, Mayor • Christine R. Martinez City Secretary Attached Exhibits: EXHIBIT A EXHIBIT B - EXHIBIT C - EXHIBIT D - EXHIBIT E - EXHIBIT F - EXHIBIT G - - Definitions Statement of Work Approved Budget Insurance Requirement Self Certification Form Client Data / Beneficiary Report Form Federal Labor Standard Provisions and Payroll Form PREPARED IN THE LAW OFFICE OF: Sheets & Crossfield, P.C. 309 East Main Street Round Rock, TX 78664 APPROVED AS TO FORM: Steph n L. Sheets, City Attorney 32 Exhibit "A" DEFINITIONS (1) Advance: An advance of Loan Proceeds under the Loan Agreement to the Borrower from the City for the reimbursement of expenditures in connection with the Project. (2) Advances Account: The joint account into which Advances (but not Receipts) are deposited and against which checks are drawn as described in the Loan Agreement. (3) Approved Budget: The budget setting forth the Borrower's expenses in connection with the Project and set forth in Exhibit "C" which is attached to the Loan Agreement. (4) Borrower: The entity identified in the first paragraph of the Loan Agreement and any Signatory Party. (5) CERCLA: The Comprehensive Environmental Response, Compensation and Liability Act. (6) C.F.R.: The Code of Federal Regulations. (7) City Ordinances: Any and all ordinances of the City of Round Rock Code of Ordinances, provided any subsequently enacted ordinance does not unconstitutionally impair the rights of Borrower under the Loan Agreement. (8) Commercial Code: The Uniform Commercial Code, Title 1, Texas Business and Commerce Code, as amended from time to time. (9) Compliance Affidavit: The affidavit in a form acceptable to City, executed by Borrower and evidencing payment of contractors and subcontractors with respect to a Draw Request form. (10) Contractor: The entity with which Borrower enters into a construction agreement as the prime contractor to construct the Project. (11) Contracts: All of the right, title, and interest of Borrower, including equitable rights, in, to, and under any and all (i) contracts for the purchase of all or any portion of the Mortgaged Property, whether such contracts are now or at any time hereafter existing, including but without limitation, any and all earnest money or other deposits escrowed or to be escrowed or letters of credit provided or to be provided by the purchasers under such contracts, including all amendments and supplements to and renewals and extensions of such contracts at any time made, and together with all payments, earnings, income, and profits arising from the sale of all or any portion of the Mortgaged Property or from such contracts and all other sums due or to become due under and pursuant thereto and together with any and all earnest money, security, letters of credit or other deposits under any such contracts; (ii) contracts, licenses, permits, and rights relating to living unit equivalents or other entitlement for water, wastewater, and other utility services whether executed, granted, or issued by a private person or a governmental or 1 quasi -governmental agency, which are directly or indirectly related to, or connected with, the development, ownership, maintenance or operation of the Mortgaged Property, whether such contracts, licenses, and permits are now or at any time thereafter existing, including without limitation, any and all rights of living unit equivalents or other entitlement with respect to water, wastewater, and other utility services, certificates, licenses, zoning variance, permits, and no - action letters from each governmental authority required: (a) to evidence compliance by Borrower and all improvements constructed or to be constructed on the Mortgaged Property with all Legal Requirements applicable to the Mortgaged Property, and (b) to develop and/or operate the Mortgaged Property as a commercial and/or residential project, as the case may be; (iii) any and all right, title, and interest Borrower may have in any financing arrangements relating to the financing of or the purchase of all or any portion of the Mortgaged Property by future purchaser; and (iv) all other contracts which in any way relate to the use, enjoyment, occupancy, operation, maintenance, repair, management or ownership of the Mortgaged Property (save and except any and all Leases), including but not limited to maintenance and service contracts and management agreements. (12) Debtor Relief Laws: Title 11 of the United States Code, as now or hereafter in effect, or any other applicable law, domestic or foreign, as now or hereafter in effect, relating to bankruptcy, insolvency, liquidation, receivership, reorganization, arrangement or composition, extension or adjustment of debts, or similar laws affecting the rights of creditors. (13) Deed of Trust: That certain deed of trust conveying the Mortgaged Property to the Trustee in such form as is acceptable to the City, dated even date with the Loan Agreement, incorporated herein by reference, executed by Borrower, and securing the payment of the Indebtedness and the performance and discharge of the Obligations for the benefit of City. (14) Disposition: Any sale, lease (except as permitted under the Security Agreements), exchange, assignment, conveyance, transfer, trade, or other disposition of all or any portion of the Mortgaged Property (or any interest therein) or all or any part of the beneficial ownership interest in Borrower (if Borrower is a corporation, partnership, general partnership, limited partnership, joint venture, trust, or other type of business association or legal entity). (15) Draw Request: The written request filled out, signed and submitted to City by Borrower in a form accepted by the City which requests payment of expenses incurred with respect to the Project as required in the Loan Agreement, authorized by the Approved Budget. (16) Eligible Person: A "low- and moderate -income household" or a "low- and moderate - income person" as defined at 24 C.F.R. §570.3. (17) Environmental Law: Any federal, state, or local law, statute, ordinance, or regulation, whether now or hereafter in effect, pertaining to health, industrial hygiene, or the environmental conditions on, under, or about the Mortgaged Property, including without limitation, the following, as now or hereafter amended: Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq.; Resource, Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq. as amended by the Superfluid Amendments and Reauthorization Act of 1986 ("SARA"), Pub. L. 99-499, 100 Stat. 2 1613; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. § 1101 et seq.; Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq.; Clean Air Act ("CAA"), 42 U.S.C. § 7401 et seq.; Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. § 1251 et seq.; and any corresponding state laws or ordinances including but not limited to the Texas Water Code ("TWC") § 26.001 et seq.; Texas Health & Safety Code ("THSC") § 361.001 et seq.; Texas Solid Waste Disposal Act, Tex. Rev. Civ. Stat. Ann. art. 4477-7; and regulations, rules, guidelines, or standards promulgated pursuant to such laws, statutes and regulations, as such statutes, regulations, rules, guidelines, and standards are amended from time to time. (18) Event of Default: Any happening or occurrence described as an "Event of Default" in the Loan Agreement. (19) Federal Funds: Amounts received by the City from HUD in connection with a federal program described in the HUD Law. (20) Federal Requirements: Any and all applicable provisions of the HUD Law and the Code of Federal Regulations for projects receiving funding that is authorized by the HUD Law. It is expressly understood that any changes in these agreements or regulations are automatically incorporated herein without specific reference. Without limiting the foregoing and to the extent applicable, the term includes, without limitation, strict compliance with: (a) the uniform administrative requirements described in 24 C.F.R. §570.502; (b) the Single Audit Act of 1984, OMB Circular A-133 (Audits of States, Local Governments, and Non -Profit Organizations), and the requirements of 24 C.F.R. Parts 44 and 45, as applicable; (c) all program requirements described in 24 C.F.R. Part 570, Subparts A, C, and K, except for City of Round Rock's environmental responsibilities described in 24 C.F.R. §570.602(d) and the City of Round Rock's responsibilities for initiating the review process under the provisions of 24 C.F.R. Part 58; (d) the employment opportunities for businesses and lower income persons described in 24 C.F.R. Part 135, including requiring each of its subcontractors carrying out work in connection with the Project to comply with, in particular, the assurances set forth at 24 C.F.R. § 135.38: (i) The work to be performed under the Loan Agreement is subject to the requirements of section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (section 3). The purpose of section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD -assisted projects covered by section 3, shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly persons who are recipients of HUD assistance for housing; 3 (ii) The Borrower will comply with HUD's regulations in 24 C.F.R. part 135, which implement section 3. As evidenced by their execution of the Loan Agreement, the parties to the Loan Agreement certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations; (iii) The Borrower will send to each labor organization or representative of workers with which the Borrower has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the Borrower's commitments under this section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the section 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions, and the anticipated date the work shall begin; (iv) The Borrower will include this section 3 clause in every subcontract subject to compliance with regulations in 24 C.F.R. part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 C.F.R. part 135. The Borrower will not subcontract with any subcontractor where the Borrower has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 C.F.R. part 135; (v) The Borrower will certify that any vacant employment positions, including training positions, that are filled (1) after the Borrower is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 C.F.R. part 135 require employment opportunities to be directed, were not filled to circumvent the Borrower's obligations under 24 C.F.R. part 135; (vi) Noncompliance with HUD's regulations in 24 C.F.R. part 135 may result in sanctions, termination of the Loan Agreement for default, and debarment or suspension from future HUD assisted contracts; (vii) With respect to work performed in connection with section 3 covered Indian housing assistance, section 7(b) of the Indian Self -Determination and Education Assistance Act (25 U.S.C. 450e) also applies to the work to be performed under the Loan Agreement. Section 7(b) requires that to the greatest extent feasible (i) preference and opportunities for training and employment shall be given to Indians, and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian -owned Economic Enterprises. Parties to the Loan Agreement that are subject to the provisions of section 3 and section 7(b) agree to comply with section 3 to the maximum extent feasible, but not in derogation of compliance with section 7(b); §85.44; (e) the requirements for grant -enforcement remedies found in 24 C.F.R. §85.43 and 4 (f) the requirement that the funds provided hereunder for the implementation of the Project are in conformance with all federal laws and rules pertaining to the use of the funds as authorized under 24 C.F.R. §§570.201(c) and 570.208(a)(1); and (g) the requirement that the Project is not an ineligible activity as defined in 24 C.F.R. §570.207. (21) Fixtures: All materials, supplies, equipment, systems, apparatus, and other items now owned or hereafter acquired by Borrower and now or hereafter attached to, or installed in any of the Improvements or the Land, which are now owned or hereafter acquired by Borrower and are now or hereafter attached to the Land or the Improvements, and including but not limited to any and all partitions, dynamos, window screens and shades, draperies, rugs and other floor coverings, awnings, motors, engines, boilers, furnaces, pipes, cleaning, call and sprinkler systems, fire extinguishing apparatus and equipment, water tanks, swimming pools, heating, ventilating, refrigeration, plumbing, laundry, lighting, generating, cleaning, waste disposal, transportation (of people or things, including but not limited to, stairways, elevators, escalators, and conveyors), incinerating, air conditioning and air cooling equipment and systems, gas and electric machinery, appurtenances and equipment, disposals, dishwashers, refrigerators and ranges, recreational equipment and facilities of all kinds, and lighting, traffic control, waste disposal, raw and potable water, gas, electrical, storm and sanitary sewer, telephone and cable television facilities, and all other utilities whether or not situated in easements, together with all accessions, appurtenances, replacements, betterments, and substitutions for any of the foregoing and the proceeds thereof. (22) Government Authority: Any and all applicable courts, boards, agencies, corporations, commissions, offices, or authorities of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city or otherwise), whether now or hereafter in existence. (23) Hazardous Substance: Any substance, product, waste, or other material which is or becomes listed, regulated, or addressed as being a toxic, hazardous, polluting, or similarly harmful substance under any Environmental Law, including without limitation: (i) any substance included within the definition of "hazardous waste" pursuant to Section 1004 of RCRA; (ii) any substance included within the definition of "hazardous substance" pursuant to Section 101 of CERCLA; (iii) any substance included within (a) the definition of "regulated substance" pursuant to Section 26.342(13) of TWC; or (b) the definition of "hazardous substance" pursuant to Section 361.003(11) of THSC; (iv) asbestos; (v) polychlorinated biphenyls; (vi) petroleum products; (vii) underground storage tanks, whether empty, filled or partially filled with any substance; (viii) any radioactive materials, urea formaldehyde foam insulation or radon; (ix) any substance included within the definition of "waste" pursuant to Section 30.003(6) of TWC or " pollutant" pursuant to Section 26.001(13) of TWC; and (x) any other chemical, material or substance, the exposure to which is prohibited, limited or regulated by any Governmental Authority on the basis that such chemical, material or substance is toxic, hazardous or harmful to human health or the environment. (24) HUD: The United States Department of Housing and Urban Development. 5 (25) HUD Law: The Housing and Community Development Act of 1974, as amended, 42 U.S.C. § 3535(d) and § 5301 et seq., any and all HUD regulations issued pursuant thereto in temporary or final form, and any and all federal and City of Round Rock rules and rulings, notices, handbooks, requirements, statutes, regulations or laws governing or relating to such federal law, and any and all successor statutes thereof. It is expressly understood that any changes in these laws are automatically incorporated herein without specific reference. (26) Impositions: (i) All real estate and personal property taxes, charges, assessments, standby fees, excises, and levies and any interest, costs, or penalties with respect thereto, general and special, ordinary and extraordinary, foreseen and unforeseen, of any kind and nature whatsoever which at any time prior to or after the execution hereof may be assessed, levied, or imposed upon any property, real, personal or mixed, or upon the Mortgaged Property or the ownership, use, occupancy, or enjoyment thereof, or any portion thereof, or the sidewalks, streets, or alleyways adjacent thereto; (ii) any charges, fees, license payments, or other sums payable for or under any easement, license, or agreement maintained for the benefit of the Mortgaged Property; (iii) water, gas, sewer, electricity, and other utility charges and fees relating to the Mortgaged Property; and (iv) assessments and charges arising under any subdivision, condominium, planned unit development, or other declarations, restrictions, regimes, or agreements affecting the Mortgaged Property. (27) Improvements: Any and all buildings, covered garages, air conditioning towers, open parking areas, structures and other improvements of any kind or nature, and any and all additions, alterations, betterments or appurtenances thereto, now or at any time hereafter situated, placed, or constructed upon the Land or any part thereof; including, without limitation, the construction by Borrower of the improvements described in the Statement of Work. (28) Indebtedness: (i) The principal of, interest on, or other sums evidenced by the Note or other Loan Documents, adjusted by such credits or forgiveness of amounts otherwise due as allowed in the Note or the other Loan Documents; (ii) any other amounts, payments, or premiums payable under the Loan Documents; (iii) such additional or future sums (whether or not obligatory), with interest thereon, as may hereafter be borrowed or advanced from City, its successors or assigns, by the then record owner of the Mortgaged Property, when evidenced by a promissory note which, by its terms, is secured by the Security Agreements (it being contemplated by Borrower and City that such future indebtedness may be incurred); and, (iv) any and all other indebtedness, obligations, and liabilities of any kind or character of Borrower to City, now or hereafter existing, absolute or contingent, due or not due, arising by operation of law or otherwise, or direct or indirect, primary or secondary, joint, several, joint and several, fixed or contingent, secured or unsecured by additional or different security or securities, including indebtedness, obligations, and liabilities to City by Borrower as a member of any partnership, joint venture, trust or other type of business association, or other group, and whether incurred by Borrower as principal, surety, endorser, guarantor, accommodation party or otherwise, and any and all renewals, modifications, amendments, restatements, rearrangements, consolidations, substitutions, replacements, enlargements, and extensions thereof, it being contemplated by Borrower and City that Borrower may hereafter become indebted to City in further sum or sums. Notwithstanding the foregoing provisions of this definition, the Security Agreements shall not secure any such other loan, advance, debt, obligation or liability with 6 respect to which City is by applicable law prohibited from obtaining a lien on real estate, nor shall this definition operate or be effective to constitute or require any assumption or payment by any person, in any way, of any debt or obligation of any other person to the extent that the same would violate or exceed the limit provided in any applicable usury or other law. (29) Insurance Requirement: The insurance coverages required to be maintained on the Mortgaged Property in an amount equal to the sum of (a) the amount of the Loan, plus (b) the amount of the Superior Loan. (30) Land: All that certain real property or interest therein situated in the County of Williamson, Texas, more particularly described in the Deed of Trust, together with all right, title, interest, and privileges of Borrower in and to (i) all streets, ways, roads, alleys, easements, rights-of-way, licenses, rights of ingress and egress, vehicle parking rights and public places, existing or proposed, abutting, adjacent, used in connection with or pertaining to such real property or the improvements thereon; (ii) any strips or gores of real property between such real property and abutting or adjacent properties; (iii) all water and water rights, timber and crops pertaining to such real estate; and (iv) all appurtenances and all reversions and remainders in or to such real property. (31) Leases: Any and all leases, master leases, subleases, licenses, concessions, or other agreements (whether written or oral, or now or hereafter in effect) which grant to third parties a possessory interest in and to, or the right to use or occupy, all or any part of the Mortgaged Property, together with all security and other deposits or payments made in connection therewith. (32) Legal Requirements: (i) Any and all present and future judicial decisions, statutes (including Architectural Barrier Laws, Environmental Laws and HUD Law), rulings, rules, regulations, permits, certificates, or ordinances (including City of Round Rock Ordinances) of any Governmental Authority in any way applicable to Borrower, any Signatory Party or the Mortgaged Property, including, without limiting the generality of the foregoing, the ownership, use, occupancy, possession, operation, maintenance, construction, alteration, repair, or reconstruction thereof, (ii) any and all covenants, conditions, and restrictions contained in any deeds, other forms of conveyance, or in any other instruments of any nature that relate in any way or are applicable to the Mortgaged Property or the ownership, use, or occupancy thereof, (iii) Borrower's presently or subsequently effective bylaws and articles of incorporation, operating agreement and articles of organization or partnership, limited partnership, joint venture, trust, or other form of business association agreement, (iv) any and all Leases, (v) any and all Contracts, (vi) the Federal Requirements, and (vii) any and all leases, other than those described in (iv) above, and other contracts (written or oral), other than those described in (v) above, of any nature that relate in any way to the Mortgaged Property and to which Borrower may be bound, including, without limiting the generality of the foregoing, any lease or other contract pursuant to which Borrower is granted a possessory interest in and to the Land and/or the Improvements. Further, any changes in applicable statutes, rulings, rules, regulations, permitting certificates, or ordinances of any Governmental Authority or the Federal Requirements are automatically incorporated herein without specific reference. 7 (33) Loan: An amount equal to the principal sum payable in the Note or so much thereof as may be outstanding from time to time pursuant to the Loan Documents which City agrees to lend to Borrower, and the Borrower hereby agrees to borrow from the City and repay to, or as further described in the Note receive credit from, City or its assigns. (34) Loan Agreement: That certain Community Development Block Grant Public Facilities Loan Agreement, entered into by and between Borrower and City, and dated the Effective Date. (35) Loan Documents: The Loan Agreement, the Note, the Security Agreements and any and all other documents now or hereafter executed by Borrower, or any other person or party in connection with the loan evidenced by the Loan Agreement or in connection with the payment of the Indebtedness or the performance or discharge of the Obligations. (36) Loan Proceeds: The Loan amounts paid by City to Borrower in accordance with the terms and conditions of the Loan Agreement. (37) Material Adverse Effect: Any material and adverse effect on (i) the business condition (financial or otherwise), operations, prospects, results of operations, capitalization, liquidity or any properties of Borrower, taken as a whole, (ii) the value of the Mortgaged Property, (iii) the ability of Borrower (or if Borrower is a partnership, joint venture, or other type of business association, of any of the parties comprising Borrower or of the ground lessor if the estate held by Borrower in the Land is a leasehold estate) to pay and perform the Indebtedness and the Obligations, respectively, or (iv) the validity, enforceability or binding effect of any of the Loan Documents. (38) Minerals: All substances in, on, under, or above the Land which are now, or may become in the future, intrinsically valuable (that is, valuable in themselves) and which may be now or in the future enjoyed through extraction or removal from the property, including without limitation, oil, gas, and all other hydrocarbons, coal, lignite, carbon dioxide and all other nonhydrocarbon gases, uranium and all other radioactive substances, and gold, silver, copper, iron and all other metallic substances or ores. (39) Monitors: HUD, Trustee and City, and their respective agents, representatives, and employees. (40) Mortgaged Property: The Land, Minerals, Fixtures, Improvements, Personalty, Contracts, Leases and Rents, and any interest of Borrower now owned or hereafter acquired in and to the Land, Minerals, Fixtures, Improvements, Personalty, Contracts, Leases and Rents, together with any and all other security and collateral of any nature whatsoever, now or hereafter given for the repayment of the Indebtedness or the performance and discharge of the Obligations. As used in the Loan Documents, the term "Mortgaged Property" shall be expressly defined as meaning all or, where the context permits or requires, any portion of the above and all or, where the context permits or requires, any interest therein. (41) Note: That certain promissory note in such form as is acceptable to the City, dated even date with the Loan Agreement, incorporated herein by reference, executed by Borrower and, if 8 applicable, guaranteed by one or more guarantors, and payable to the order of City in the principal sum of the Loan, bearing interest as therein specified, containing an attorney's fee clause, interest and principal being payable as therein specified, finally maturing as stated in the note, and secured by, among other things, the Security Agreements; and any and all renewals, modifications, amendments, rearrangements, consolidations, reinstatements, enlargements, or extensions of such promissory note or any promissory note or notes given in renewal, substitution or replacement therefor. (42) Obligations: Any and all of the covenants, conditions, warranties, representations, and other obligations (other than to repay the Indebtedness) made or undertaken by Borrower, or any other person or party to the Loan Documents, to City, Trustee, or others as set forth in the Loan Documents, and in any deed, lease, sublease, or other form of conveyance, or any other agreement pursuant to which Borrower is granted a possessory interest in the Land. (43) Personalty: All of the right, title, and interest of Borrower in and to (i) furniture, furnishings, equipment, machinery, goods (including, but not limited to, crops, farm products, timber and timber to be cut, and extracted Minerals); (ii) general intangibles, money, insurance proceeds, accounts, contract and subcontract rights, trademarks, trade names, copyrights, chattel paper, instruments, investment property, letters of credit, inventory; (iii) all cash funds, fees (whether refundable, returnable or reimbursable), deposits or other funds or evidences of cash, credit or indebtedness deposited by or on behalf of Borrower with any Governmental Authority, providers of utility services, public or private, including specifically, but without limitation, all refundable, returnable, or reimbursable tap fees, utility deposits, commitment fees and development costs, any awards, remunerations, reimbursements, settlements, or compensation heretofore made or hereafter to be made by any Governmental Authority pertaining to the Mortgaged Property, including, but not limited to, those for any vacation of, or change of grade in, any streets affecting the Land or Improvements and those for municipal utility district or other utility costs incurred or deposits made in connection with the Land; and (iv) all other personal property of any kind or character as defined in and subject to the provisions of the Commercial Code (Chapter 9 - Secured Transactions); any and all of which are now owned or hereafter acquired by Borrower, and which are now or hereafter situated in, on, or about the Land or the Improvements, and necessary to the complete and proper planning, development, construction, financing, use, occupancy, or operation thereof, or acquired (whether delivered to the Land or stored elsewhere) for use in or on the Land or the Improvements, together with all accessions, replacements, and substitutions thereto or therefor and the proceeds thereof. (44) Program Income: Gross income received by Borrower directly generated from the use of CDBG funds, which includes, but is not limited to the following: proceeds from the disposition by sale or long-term lease of real property purchased or improved with CDBG funds; proceeds from the disposition of equipment purchased with CDBG funds; gross income from the use or rental of real or personal property acquired by Borrower with CDBG funds, less costs incidental to generation of income; payments of principal and interest on loans made using CDBG funds; proceeds from the sale of loans made with CDBG funds; proceeds from sale of obligations secured by loans made with CDBG funds; interest earned on program income pending its disposition; and funds collected through special assessments made against properties owned and 9 occupied by households not of low and moderate income, where the assessments are used to recover all or part of the CDBG portion of a public improvement. (45) Project: The development and construction of Improvements upon the Land in Round Rock, Williamson County, Texas for an addition of approximately 2,800 square feet to a pregnancy resource center which will provide services to women and families with planned and unplanned pregnancies, pregnancy testing and counseling classes which are further described in the Statement of Work. (46) RCRA: The Resource Conservation and Recovery Act. (47) Receipts: Any receipt of funds (but not Advances) in connection with the Project. (48) Release: The terms "release," "removal," "environment," and "disposal" shall have the meanings given such terms in CERCLA, and the term "disposal" shall also have the meaning given it in RCRA; provided that in the event either CERCLA or RCRA is amended so as to broaden the meaning of any term defined thereby, such broader meaning shall apply subsequent to the effective date of such amendment, and provided further that to the extent the laws of the State of Texas establish a meaning for "release," "removal," "environment," or "disposal," which is broader than that specified in either CERCLA and RCRA, such broader meaning shall apply. (49) Rents: All of the rents, royalties, issues, bonus monies, revenues, income, proceeds, profits, security and other types of deposits (after Borrower acquires title thereto), and other benefits paid or payable by parties to the Leases (other than Borrower) for using, leasing, licensing, possessing, operating from, residing in, selling, or otherwise enjoying all or any portion of the Mortgaged Property. (50) Restricted Period: The period beginning on the Effective Date and ending on the date the Project is completed, evidenced by the issuance of a Certificate of Occupancy by the City. (51) Right to Substitute: The right of Borrower to substitute another improved property with facilities of comparable size and quality to the Mortgaged Property, on the day immediately preceding the date the City approves the substitution, and which will be operated for the same or similar purpose as the Project. (52) Security Agreements: The Deed of Trust. (53) Signatory Party: Any signatory to any of the Loan Documents that signs on Borrower's behalf that is a corporation, general partnership, limited partnership, limited liability company, joint venture, trust, or other type of business organization. (54) Statement of Work: The work required to be completed with respect to the Mortgaged Property which will be funded by the Loan. (55) Subcontractor Report: The report Contractor is required to submit to City in connection with the submission of a Draw Request form. 10 (56) Superior Lien: That one or more certain deed of trust or deeds of trust, financing agreements, financing statements, liens, security interests, assignments and other collateral securing the Superior Loan. (57) Superior Lienholder: Independent Bank. (58) Superior Loan: A loan secured by the Superior Lien in a maximum amount equal to $370,000.00, payable by Borrower to Superior Lienholder. (59) Tax Code: The U.S. Internal Revenue Code of 1986, as amended, any and all U.S. Department of Treasury Regulations issued pursuant thereto in temporary or final form, and any and all federal, state, county, municipal and city rules and rulings, notices, requirements, statutes, regulations or laws governing or relating to taxes and/or taxation, and any and all successor statutes thereof. (60) THSC: The Texas Health and Safety Code. (61) TWC: The Texas Water Code. (62) Trustee: The individual described as Trustee in the Deed of Trust. (63) U.S.C.: The United States Code. 11 Exhibit "B" STATEMENT OF WORK STATEMENT OF PURPOSE: The HUD national objective which will be achieved by this project is to benefit low to moderate income persons provided the activities are carried out in accordance with the criteria set forth at 24 C.F.R. 570.208. PROJECT OVERVIEW: AGAPE Pregnancy Resource Center (AGAPE) will use the Community Development Block Grant (CDBG) Funds to construct a 2,800 square foot addition to the building located at 104 East Main Street. The Project objective is to expand the Pregnancy Resource Center in order to service women and families with planned and unplanned pregnancies by providing pregnancy testing at no cost to the clients, to all who come including referrals from Texas DHS. The program also includes counseling and classes taught on subjects such as financial, parenting, computer skills and others. Maternity clothes are available to the client at no cost. Levels of Accomplishment In addition to normal administrative services required as part of this Agreement, AGAPE agrees to provide the following program services: Activity Units of Service Per Month Total Units per Year Activity 1: Medical testing 50 600 Activity 2: Counseling and classes 50 600 Units of Service shall be defined for Activity 1 first time visits for testing; and for Activity 2 as unduplicated clients returning for classes and counseling. Staffing To undertake the activities described above and accomplish the levels of service described above, AGAPE will allocate staff time in support of the program funded under this Agreement as follows: Title Hrs. per Week # of Weeks = Estimated Hours Center Administrator 40 51 = 2000 Title Hrs. per Week # of Weeks = Estimated Hours Development Director 20 52 = 1000 Title Hrs. per Week # of Weeks = Estimated Hours Volunteer Counselors, Instructors, Client Advocates & Other 175 51 = 8900 Title Hrs. per Week # of Weeks = Estimated Hours Administrative Assistant 20 13 = 250 Any changes in the key personnel assigned or their general responsibilities under this program are subject to the prior approval of the CITY. Exhibit "C" APPROVED BUDGET Line Item Amount Permits, Architect, Engineering, Site Work and Foundation $24,000.00 Construction $92,961.00 Project Costs $116,961.00 Exhibit "D" INSURANCE REQUIREMENT Section 1. Borrower, from the Date until issuance of the certificate of occupancy by the City of Round Rock with respect to the Property, shall carry insurance in the following types and amounts: 1.1. Commercial General Liability Coverage with a minimum bodily injury and property damage per occurrence limit of $500,000 for coverages A & B. The policy shall contain the following provisions and endorsements in favor of the City: 1.1.1. Blanket Contractual liability coverage for liability assumed under this contract; 1.1.2. Products and completed operations coverage; 1.1.3. Independent contractors coverage; 1.1.4. Personal and Advertising injury coverage; 1.1.5. Additional Insured endorsement; 1.1.6. Waiver of Subrogation endorsement; and 1.1.7. 30 -Day Notice of Cancellation endorsement. 1.2. Business Automobile Liability Insurance for all owned, non -owned and hired vehicles with a limit of $500,000 per occurrence for bodily injury and property damage liability. The policy shall contain the following endorsements in favor of the City: 1.2.1. Additional Insured endorsement; 1.2.2. Waiver of Subrogation endorsement; and 1.2.3. 30 -Day Notice of Cancellation endorsement. 1.3. Directors and Officers Insurance with a minimum of not less than $1,000,000 per claim shall be in place for protection from claims arising out of negligent acts, errors or omissions for directors and officers while acting in their capacities as such. If coverage is underwritten on a claims -made basis, the retroactive date shall be coincident with or prior to the date of the Agreement and the certificate of insurance shall state that the coverage is claims made and the retroactive date. The coverage shall be continuous for the duration of the Agreement and for not less than twenty-four (24) months following the end of the Agreement. Coverage, including renewals, shall have the same retroactive date as the original policy applicable to the Agreement. The Borrower shall, on at least an annual basis, provide the City with a certificate of insurance as evidence of such insurance. 1 Section 2. Borrower shall cause any contractor or subcontractor of Borrower constructing improvements to the Mortgaged Property, from the Date until issuance of the certificate of occupancy by the City of Austin with respect to the Mortgaged Property, to carry insurance in the following types and amounts: 2.1. Employers Liability and Workers' Compensation Insurance. Minimum policy limits for Employers' Liability shall be $100,000 bodily injury each accident, $500,000 bodily injury by disease policy limit and $100,000 bodily injury by disease each employee. Workers' Compensation coverage shall be consistent with statutory benefits described in the Texas Workers' Compensation Act, section 401. Coverage shall apply to the State of Texas. The policy shall contain the following endorsements in favor of the City: 2.2.1. Waiver of Subrogation; and 2.2.2. 30 -Day Notice of Cancellation. 2.2. Commercial General Liability Coverage with a minimum bodily injury and property damage per occurrence limit of $500,000 for coverages A & B. The policy shall contain the following provisions and endorsements in favor of the City: 2.2.1. Blanket Contractual liability coverage for liability assumed under this contract; 2.2.2. Products and completed operations coverage; 2.2.3. Independent contractors coverage; 2.2.4. Personal and Advertising injury coverage; 2.2.5. Additional Insured endorsement; 2.2.6. Waiver of Subrogation endorsement; and 2.2.7. 30 -Day Notice of Cancellation endorsement. 2.3. Business Automobile Liability Insurance for all owned, non -owned and hired vehicles with a limit of $500,000 per occurrence for bodily injury and property damage liability. The policy shall contain the following endorsements in favor of the City: 2.3.1. Additional Insured endorsement; 2.3.2. Waiver of Subrogation endorsement; and 2.3.3. 30 -Day Notice of Cancellation endorsement. 2 2.4. Builders' Risk Insurance on an all risk physical loss form in the amount of the maximum contractor amount for any improvements made to the Mortgaged Property. Coverage shall commence upon the date any work with respect to such improvements begins and shall continue until the work is complete and a certificate of occupancy is issued with respect to the improvements. The City shall be a mortgagee/loss payee on the policy. If off-site storage is permitted with respect to the work, coverage shall include transit and storage in an amount sufficient to protect any property being transported or stored. Section 3. Borrower, from the date of issuance of the certificate of occupancy by the City of Round Rock with respect to the Mortgaged Property until termination of the Agreement, shall carry insurance in the following types and amounts for the duration of the Agreement: 3.1. Commercial General Liability Coverage with a minimum bodily injury and property damage per occurrence limit of $500,000 for coverages A & B. The policy shall contain the following provisions: 3.1.1. Blanket Contractual liability coverage for liability assumed under this contract; 3.1.2. Products and completed operations coverage; 3.1.3. Independent contractors coverage; 3.1.4. Personal and Advertising injury coverage; 3.1.5. Additional Insured endorsement in favor of the City; 3.1.6. Waiver of Subrogation endorsement in favor of the City; and 3.1.7. 30 -Day Notice of Cancellation endorsement in favor of the City. 3.2. Business Automobile Liability Insurance for all owned, non -owned and hired vehicles with a limit of $500,000 per occurrence for bodily injury and property damage liability. The policy shall contain the following endorsements in favor of the City: 3.2.1. Additional Insured endorsement; 3.2.2. Waiver of Subrogation endorsement; and 3.2.3. 30 -Day Notice of Cancellation endorsement. 3.3. All risk property coverage including but not limited to fire, wind, hail, theft, vandalism, and malicious mischief for all real and personal property owned and/or acquired by Borrower with respect to the Agreement. The coverage shall be at replacement cost with a 100% coinsurance clause. The City shall be a mortgage/loss payee on the policy As Their Interest May Appear. 3 3.4. Directors and Officers Insurance with a minimum of not less than $1,000,000 per claim shall be in place for protection from claims arising out of negligent acts, errors or omissions for directors and officers while acting in their capacities as such. If coverage is underwritten on a claims -made basis, the retroactive date shall be coincident with or prior to the date of the Agreement and the certificate of insurance shall state that the coverage is claims made and the retroactive date. The coverage shall be continuous for the duration of the Agreement and for not less than twenty-four (24) months following the end of the Agreement. Coverage, including renewals, shall have the same retroactive date as the original policy applicable to the Agreement. The Borrower shall, on at least an annual basis, provide the City with a certificate of insurance as evidence of such insurance. Section 4. If the insurance policies are written for less than the amounts specified in 0, 0 and 0 of this Insurance Requirement, Borrower, or Borrower's contractor or subcontractor as the case may be, shall carry umbrella or excess liability insurance for any differences in amounts specified. If excess liability insurance is provided, it must follow the form of the primary coverage. Section 5. Borrower shall provide City at least thirty (30) calendar days written notice of erosion of the aggregate limit below the minimum required combined single limit of coverage. Section 6. Borrower shall not acquire any property or commence work under the Agreement until it has obtained all required insurance and until the Legal Department of the City has reviewed such insurance coverage. Section 7. City prefers that the required insurance be written by a company licensed to do business in the State of Texas at the time the policy is issued. However, with respect to Employers Liability and Workers' Compensation Insurance, a policy written by the Texas Workers' Compensation Fund is acceptable. Section 8. All endorsements, naming the City as additional insured, waivers, notices of cancellation, notices of non -renewal or any other endorsements as well as the Certificate of Insurance shall: 8.1. Name the City at the notice address set forth in the Agreement. 8.2. Obligate the insurance company to notify the City official named as City contact in the Agreement at its notice address of any non -renewal, cancellation or material change to the policy, at least thirty (30) calendar days before the change or cancellation. Section 9. The "other" insurance clause shall not apply to City where City is an additional insured shown on the policy. It is intended that the policies required in the Agreement, covering both City, Borrower, shall be considered primary coverage as applicable. Section 10. Borrower shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Agreement or the twenty-four month period following completion, in the case of a claims -made policy. 4 Section 11. City reserves the right to review this Insurance Requirement during the effective period of the Agreement and to make reasonable adjustments to insurance coverages, and their limits, when deemed necessary and prudent by City based upon changes in statutory law, court decisions, or the claims history of the industry or financial condition of the insurance company, as well as that of Borrower. Section 12. City shall be entitled, upon request, and without expense to City, to receive copies of the requisite insurance policies and all endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions. (Except where policy provisions are established by law or regulation binding upon either of the parties hereto or the underwriter on any of such policies). Section 13. Actual losses, deductibles and self-insured retentions stated in policies, if any, which are not covered by insurance as required by this Insurance Requirement, are not allowable costs under the Agreement. 5 Exhibit "E" SELF CERTIFICATION FORM Community Development Block Grant Program Self Declaration of Income Program Year 2006-07 The expansion of the AGAPE facility is funded with federal Community Development Block Grant (CDBG) funds and is designed to primarily benefit low to moderate -income households (LMI). In order for a public facility to meet one of the three National Objectives, AGAPE must show that its facility will be used by a specific group of people who are at least 51% LFII. Applicant should not provide his/her signature unless he/she has read and understands the income information they are certifying under penalty of law. At the discretion of the program, Applicant may be required to provide documentation to support the self -declaration of income. Applicant Information Applicant Name: SSN#: Applicant Address: City: Zip: Female Head of Household: Yes ❑No (Does this person have minor children living with her) Ethnicity (check one): ❑White ❑Am Indian/Alaskan Native DAsian & White ['Black/African-American ['Native Hawaiian/Other Pacific Islander ❑Black African American & White ['Asian ❑Am. Indian/Alaskan Native & White ❑Am Indian/Alaskan Native & Blk ['Other Multi -Racial Applicant Household Income Information Estimate the annual income of the household by projecting the prevailing rate of income of each person at the time assistance is provided for the individual, family, or household (as applicable). Estimated annual income shall include income from all sources of household members as applicable. Income or asset enhancement derived from the CDBG- assisted activity shall not be considered in calculating estimated annual income. Household Income Information ❑$0 - $39,850 0$39,851 - $45,500 ❑$45,501 - $51,200 ❑$51,201 - $56,900 ❑$56,901 - $61,450 0$61,451 - $66,000 0$66,001 - $70,550 11$70,551 - $75,100 [Wore than $75,100 Number of persons living in household: Number of adults (18 yrs and older) living in household: % LMI: . (Refer to chart on page 2 for % information) Applicant Self Declaration Certification Evidenced by the signature below, Applicant certifies his or her annual household income. Applicant certifies that the information herein provided is true and accurate. Applicant further acknowledges that any inaccuracy and/or misrepresentation provided herein may constitute fraud, which is punishable by law. Applicant certifies that all information provided herein and any attachments hereto, are true and correct as of the date set forth opposite signature. Applicant acknowledges that Title 18, Section 1001 of the U.S. Code states that any person that makes intentional or negligent statements to any department of the United States Government is guilty of a felony that could result in but not be limited to a fine, imprisonment, or both. Applicant Signature Date Program Use Only: Program/Activity Name: HUD Income guidelines used to certify client dated: 1\1-1RCH 8, 2006 Updated March 29, 2006 Community Development Block Grant Program HUD maximum income allowance based upon the size of household is: $ Based upon client information provided, client household: (check one) ❑ Does meet income qualifications % LMI: ❑ Does not meet income qualifications Reviewer's Signature: Date: Updated March 29, 2006 Monthly Income, $ No. In HUD's HUD's Annual Income, $ HUD's Family No. In 30% 35% HUD's 45% 50% 55% HUD's 65% 70% 75% 80% 80% 100% HUD's 35% 40% 45% 55% 60% 65% 70% 75% 80% 80% 100% Family 25% 30% 30% 50% 2,490 2,698 2,905 3,113 3,320 3,317 4,150 2 1,185 1,423 1,421 1,660 1,897 2,134 2,371 2,608 2,845 3,082 3,319 1 12,450 14,940 14,950 17,430 19,920 22,410 24,900 27,390 29,880 32,370 34,860 37,350 39,840 39,850 49,800 2 14,225 17,070 17,100 19,915 22,760 25,605 28,450 31,295 34,140 36,985 39,830 42,675 45,520 45,500 56,900 3 16,000 19,200 19,200 22,400 25,600 28,800 32,000 35,200 38,400 41,600 44,800 48,000 51,200 51,200 64,000 4 17,775 21,330 21,350 24,885 28,440 31,995 35,550 39,105 42,660 46,215 49,770 53,325 56,880 56,900 71,100 5 19,200 23,040 23,050 26,880 30,720 34,560 38,400 42,240 46,080 49,920 53,760 57,600 61,440 61,450 76,800 6 20,625 24,750 24,750 28,875 33,000 37,125 41,250 45,375 49,500 53,625 57,750 61,875 66,000 66,000 82,500 7 22,050 26,460 26,450 30,870 35,280 39,690 44,100 48,510 52,920 57,330 61,740 66,150 70,560 70,550 88,200 8 23,475 28,170 28,200 32,865 37,560 42,255 46,950 51,645 56,340 61,035 65,730 70,425 75,120 75,100 93,900 HUD maximum income allowance based upon the size of household is: $ Based upon client information provided, client household: (check one) ❑ Does meet income qualifications % LMI: ❑ Does not meet income qualifications Reviewer's Signature: Date: Updated March 29, 2006 Monthly Income, $ No. In HUD's HUD's HUD's Family 25% 30% 30% 35% 40% 45% 50% 55% 60% 65% 70% 75% 80% 80% 100% 1 1,038 1,245 1,246 1,453 1,660 1,868 2,075 2,283 2,490 2,698 2,905 3,113 3,320 3,317 4,150 2 1,185 1,423 1,421 1,660 1,897 2,134 2,371 2,608 2,845 3,082 3,319 3,556 3,793 3,792 4,742 3 1,333 1,600 1,600 1,867 2,133 2,400 2,667 2,933 3,200 3,467 3,733 4,000 4,267 4,267 5,333 4 1,481 1,778 1,779 2,074 2,370 2,666 2,963 3,259 3,555 3,851 4,148 4,444 4,740 4,742 5,925 5 1,600 1,920 1,921 2,240 2,560 2,880 3,200 3,520 3,840 4,160 4,480 4,800 5,120 5,121 6,400 6 1,719 2,063 2,063 2,406 2,750 3,094 3,438 3,781 4,125 4,469 4,813 5,156 5,500 5,500 6,875 7 1,838 2,205 2,204 2,573 2,940 3,308 3,675 4,043 4,410 4,778 5,145 5,513 5,880 5,879 7,350 8 1,956 2,348 2,346 2,739 3,130 3,521 3,913 4,304 4,695 5,086 5,478 5,869 6,260 6,258 7,825 HUD maximum income allowance based upon the size of household is: $ Based upon client information provided, client household: (check one) ❑ Does meet income qualifications % LMI: ❑ Does not meet income qualifications Reviewer's Signature: Date: Updated March 29, 2006 Exhibit "F" CLIENT / BENEFICIARY DATA This report is prepared in digital format. The following exhibit is an example of the information required to complete the client / beneficiary data. Unduplicated Clients v c S Exhibit "G" FEDERAL LABOR STANDARDS PROVISIONS AND PAYROLL FORM Federal Labor Standards Provisions U.S. Department of Housing and Urban Development Office of Labor Relations Applicability The Project or Program to which the construction work covered by this contract pertains is being assisted by the United States of America and the following Federal Labor Standards Provisions are included in this Contract pursuant to the provisions applicable to such Federal assistance. A. 1. (i) Minimum Wages. All laborers and mechanics em- ployed or working upon the site of the work will be paid uncondi- tionally and not less often than once a week, and without subse- quent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secre- tary of Labor under the Copeland Act (29 CFR Part 3), the full amount of wages and bona fide fringe benefits (or cash equiva- lents thereof) due at time of payment computed at rates riot less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, re- gardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under Section I(b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of 29 CFR 5.5(a)(1)(iv); also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs, which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classi- fication of work actually performed, without regard to skill, except as provided in 29 CFR 5.5(a)(4). Laborers or mechanics per- forming work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any addi- tional classification and wage rates conformed under 29 CFR 5.5(a)(1)(ii) and the Davis -Bacon poster (WH -1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible, place where it can be easily seen by the workers. (ii) (a) Any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage deter- mination. HUD shall approve an additional classification and wage rate and fringe benefits therefor only when the following criteria have been met: (1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and (2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe ben- efits, bears a reasonable relationship to the wage rates contained in the wage determination. (b) If the contractor and the laborers and mechanics to be em- ployed in the classification (if known), or their representatives, and HUD or its designee agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by HUD or its designee to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of La- bor, Washington, D.C. 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise HUD or its designee or will notify HUD or its designee within the 30 -day period that additional time is necessary. (Approved by the Office of Management and Budget under OMB control number 1215- 0140.) (c) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and HUD or its designee do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), HUD or its designee shall refer the questions, including the views of all interested parties and the recommenda- tion of HUD or its designee, to the Administrator for determina- tion. The Administrator, or an authorized representative, will is- sue a determination within 30 days of receipt and so advise HUD or its designee or will notify HUD or its designee within the 30 -day period that additional time is necessary. (Approved by the Office of Management and Budget under OMB Control Number 1215- 0140.) (d) The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (1)(ii)(b) or (c) of this para- graph, shall be paid to all workers performing work in the classifi- cation under this contract from the first day on which work is per- formed in the classification. (iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay an- other bona fide fringe benefit or an hourly cash equivalent thereof. (iv) If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs rea- sonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable stan- dards of the Davis -Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate ac- count assets for the meeting of obligations under the plan or pro- gram. (Approved by the Office of Management and Budget under OMB Control Number 1215-0140.) 2. Withholding. HUD or its designee shall upon its own action or upon written request of an authorized representative of the De- partment of Labor withhold or cause to be withheld from the con- tractor under this contract or any other Federal contract with the same prime contractor, or any other Federally -assisted contract subject to Davis -Bacon prevailing wage requirements, which is held by the same prime contractor so much of the accrued pay- ments or advances as may be considered necessary to pay la- borers and mechanics, including apprentices, trainees and help- ers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee or helper, employed or working on the site of the work, all or part Previous edition is obsolete Page 1 of 4 form HUD -4010 (07/2003) ref. Handbook 1344.1 of the wages required by the contract, HUD or its designee may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. HUD or its designee may, after written notice to the contractor, disburse such amounts withheld for and on account of the contractor or subcontractor to the respective employees to whom they are due. The Comptroller General shall make such disbursements in the case of direct Davis -Bacon Act contracts. 3. (i) Payrolls and basic records. Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work preserved for a period of three years thereaf- ter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social secu- rity number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in Section I(b)(2)(B) of the Davis -bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5 (a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in Sec- tion I(b)(2)(B) of the Davis -Bacon Act, the contractor shall main- tain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially re- sponsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (Approved by the Office of Management and Budget under OMB Control Numbers 1215-0140 and 1215-0017.) (ii) (a) The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to HUD or its designee if the agency is a party to the contract, but if the agency is not such a party, the contractor will submit the payrolls to the applicant sponsor, or owner, as the case may be, for transmission to HUD or its designee. The payrolls submitted shall set out ac- curately and completely all of the information required to be main- tained under 29 CFR 5.5(a)(3)(i). This information may be submit- ted in any form desired. Optional Form WH -347 is available for this purpose and may be purchased from the Superintendent of Documents (Federal Stock Number 029-005-00014-1), U.S. Gov- ernment Printing Office, Washington, DC 20402. The prime con- tractor is responsible for the submission of copies of payrolls by all subcontractors. (Approved by the Office of Management and Budget under OMB Control Number 1215-0149.) (b) Each payroll submitted shall be accompanied by a "State- ment of Compliance," signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of the per- sons employed under the contract and shall certify the following: (1) That the payroll for the payroll period contains the information required to be maintained under 29 CFR 5.5 (a)(3)(i) and that such information is correct and complete; (2) That each laborer or mechanic (including each helper, ap- prentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without re- bate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in 29 CFR Part 3; (3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the appli- cable wage determination incorporated into the contract. (c) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH -347 shall sat- isfy the requirement for submission of the "Statement of Compli- ance" required by subparagraph A.3.(ii)(b). (d) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 231 of Title 31 of the United States Code. (iii) The contractor or subcontractor shall make the records re- quired under subparagraph A.3.(i) available for inspection, copy- ing, or transcription by authorized representatives of HUD or its designee or the Department of Labor, and shall permit such rep- resentatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, HUD or its designee may, after written notice to the contractor, sponsor, applicant or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pur- suant to 29 CFR 5.12. 4. Apprentices and Trainees. (i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. De- partment of Labor, Employment and Training Administration, Of- fice of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an ap- prentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actu- ally performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the Previous edition is obsolete Page 2 of 4 form HUD -4010 (07/2003) ref. Handbook 1344.1 journeymen hourly rate specified in the applicable wage determi- nation. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the appren- ticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage deter- mination for the applicable classification. If the Administrator de- termines that a different practice prevails for the applicable ap- prentice classification, fringes shall be paid in accordance with that determination. In the event the Office of Apprenticeship Train- ing, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an ap- prenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is ap- proved. (ii) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior ap- proval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Train- ing Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprentice- ship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the pay- roll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Adminis- tration shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not Tess than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the con- tractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (iii) Equal employment opportunity. The utilization of appren- tices, trainees and journeymen under 29 CFR Part 5 shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30. 5. Compliance with Copeland Act requirements. The contrac- tor shall comply with the requirements of 29 CFR Part 3 which are incorporated by reference in this contract 6. Subcontracts. The contractor or subcontractor will insert in any subcontracts the clauses contained in subparagraphs 1 through 11 of this paragraph A and such other clauses as HUD or its designee may by appropriate instructions require, and a copy of the applicable prevailing wage decision, and also a clause re- quiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in this paragraph. 7. Contract termination; debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the con- tract and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12. 8. Compliance with Davis -Bacon and Related Act Requirements. All rulings and interpretations of the Davis -Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5 are herein incorpo- rated by reference in this contract 9. Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract shall not be sub- ject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the De- partment of Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and HUD or its designee, the U.S. Department of Labor, or the employees or their repre- sentatives. 10. (i) Certification of Eligibility. By entering into this contract the contractor certifies that neither it (nor he or she) nor any per- son or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of Section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1) or to be awarded HUD contracts or participate in HUD programs pursuant to 24 CFR Part 24. (ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of Section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1) or to be awarded HUD contracts or participate in HUD programs pursuant to 24 CFR Part 24. (iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001. Additionally, U.S. Criminal Code, Section 1 01 0, Title 18, U.S.C., "Federal Housing Adminis- tration transactions", provides in part: "Whoever, for the purpose of ... influencing in any way the action of such Administration makes, utters or publishes any statement knowing the same to be false shall be fined not more than $5,000 or imprisoned not more than two years, or both." 11. Complaints, Proceedings, or Testimony by Employees. No laborer or mechanic to whom the wage, salary, or other labor standards provisions of this Contract are applicable shall be dis- charged or in any other manner discriminated against by the Con- tractor or any subcontractor because such employee has filed any complaint or instituted or caused to be instituted any proceeding or has testified or is about to testify in any proceeding under or relating to the labor standards applicable under this Contract to his employer. B. Contract Work Hours and Safety Standards Act. The provi- sions of this paragraph B are applicable only where the amount of the prime contract exceeds $100,000. As used in this paragraph, the terms "laborers" and "mechanics" include watchmen and guards. (1) Overtime requirements. No contractor or subcontractor con- tracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of 40 hours in such work- week unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of 40 hours in such workweek. (2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in subpara- Previous edition is obsolete Page 3 of 4 form HUD -4010 (07/2003) ref. Handbook 1344.1 graph (1) of this paragraph, the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addi- tion, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in subparagraph (1) of this paragraph, in the sum of $10 for each calendar day on which such individual was required or permit- ted to work in excess of the standard workweek of 40 hours without payment of the overtime wages required by the clause set forth in sub paragraph (1) of this paragraph. (3) Withholding for unpaid wages and liquidated damages. HUD or its designee shall upon its own action or upon written request of an authorized representative of the Department of La- bor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contract, or any other Federally -assisted contract subject to the Contract Work Hours and Safety Standards Act which is held by the same prime contractor such sums as may be determined to be necessary to satisfy any liabilities of such con- tractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in subparagraph (2) of this paragraph. (4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in subparagraph (1) through (4) of this paragraph and also a clause requiring the sub- contractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in subparagraphs (1) through (4) of this paragraph. C. Health and Safety. The provisions of this paragraph C are ap- plicable only where the amount of the prime contract exceeds $100,000. (1) No laborer or mechanic shall be required to work in surround- ings or under working conditions which are unsanitary, hazard- ous, or dangerous to his health and safety as determined under construction safety and health standards promulgated by the Sec- retary of Labor by regulation. (2) The Contractor shall comply with all regulations issued by the Secretary of Labor pursuant to Title 29 Part 1926 and failure to comply may result in imposition of sanctions pursuant to the Con- tract Work Hours and Safety Standards Act, 40 USC 3701 et seq. (3) The Contractor shall include the provisions of this para- graph in every subcontract so that such provisions will be binding on each subcontractor. The Contractor shall take such action with respect to any subcontract as the Secretary of Housing and Urban Development or the Secretary of Labor shall direct as a means of enforcing such provisions. Previous edition is obsolete Page 4 of 4 form HUD -4010 (07/2003) ref. Handbook 1344.1 •• •-•• w, Fr • Jr•Ry. 1,1,1•or Illy vaf u LIMO cvnlf(f nLmaer. !ley. Apr I ZULki ADDRESS OMB No.: 1215-014£ Expires: 04/30/2009 PROJECT OR CONTRACT NO. 03 c -WOW m w0Z- Z < 0. Y W K 0 LL (8) DEDUCTIONS TOTAL n ] n W 11- 0 K PROJECT AND LOCATION O zx _M O § O~ z a t NZw g.-- ,,,2a Q w \ \ \\ \ \ \ \ . W Q §a 0 J CO r0 0 O x NAME OF CONTRACTOR ❑ OR SUBCONTRACTOR p PAYROLL NO, FOR WEEKENDING (4) DAY AND DATE Q d 3 WORKED EACI K O z '1S 80'10 0 y 0 N 0 N 0 ni 0 N 0 0 0 m (3) WORK CLASSIFICATION rhe Copeland Act (40 U.S.C. 31451 requires contractors and auhrnnfraNnre nurfnr SNOLLdW3X N ON!OIOHH1JM i0 "ON (t) NAME, ADDRESS, AND SOCIAL SECURITY NUMBER OF EMPLOYEE '0 • C N @ C • 4> 47. m a� 0 V 10 0) l0 C 0 'EO Q 41 m m L A O m E -U m L L — rn C G1 C N . E v N rn rn C C N •U L 3 U a) - a o o' o N w 0)rn CO 0) v of0) m 7 U C C • C U ro N N c o 2 0 C U O 8 o :ELL• ) O 1.>! U U m m 0 E m o 0 rn 0 r � Tip • - C O O O }r N E m Z E E m C N C > O N Q o U - Y N 0 ✓ m U _m8 m c N E E U OE O U fO N E � o i E m L 0 O a ,r fiO C W C m Gm O m s-- 4 ▪ O Uj _• C 0 y Q a W m� o R N E m _> .3 0 m 2_,r 03 F do hereby state: (c) EXCEPTIONS EXPLANATION EXCEPTION (CRAFT) Y re f w F- F - CO N NAME AND TITLE (Building or Work) 0 03 m b m O m "DC C .0 m v E m .0 C m C m 0 m CO m 0 _ m0`)3 0) £2bm 3 0 p ca 43 b 0 4 Tb .007 aro b O'er Y '1,1 V � rm y 0 c 13 w m 0 ▪ C b m m f` 0 N b W _C .CI E OE -v m O 0 bm O- O CO a 0 - O (13 O N m O co ct oo m > O m` V% Ca '0 m ��mv L C C m y m U �O O c m V%M m m QU ac�m m_co ca b c _o N rob 3A C t T m N (D b m b m .--..-: >, -o m m Q m 0 m m m m55 E m m mdn m.0 y 3 7.0 ro O w .- ICS u m ° Y U Y4 am oE..,'w (tin i2"cht0"' m r r m O alB C C 11 U vm obC o m c 0 O N C m N Q a, m O 7 'X m [LL ° 0 O a CO m'J 0 U 7; co o �0 Wtt mm� O a °EE L rmL o. 'C .0 C C gCe � °,Emm mCvAb OOytL Oa)nC-. a a) m M ,t; .2 O2 mL Ctl z m N _ O) z ro o m�5g mO10m _om 3 2C ro 0. oa N .En 2 m m : m L Z U C co N ym= U m m 3 m.0 O C O L ... m o a....-.• - m m° C a YO a 0- d U O 8 co c a $�cE m--�til m mm b C_ O Q a O L 0. w -- 1] m ro C C 0 O N p 4 U _ L O p m N d W a' m y O m .1 ° dU NF ❑. m C Ga N E C C C J b Q m c0 0 oEro o›.4)mom O d,>.d� U .• :1-.) L d O_.+ ay m m m m l0 m a / a CO N _ _ m C ° O • b m r m Q 2 c° b ° a a 0 al CO V 4 O T E m s o 3 m c-0 m 0.W ° am °c o m -�° c a CO ma a m Sro or row= c § a p ro- U a 3 p 1L L m m _ m E �� W = o Q N 0).„ m m m m m W d m m l' C w N m C 7 w C m y y r m 'm C m _m D al W a> m b' EC,E U m i.9 •,, _a O m O 0 c. -,c -.:_.- ..g Z b ro m 0 C r O_ m m N E O`"' 0 r dE ro'" 03 ..3.. L m m m 3 w A. "m O TOb m ill a' 1 C fa E co y N a m w T ❑ ro p o _ NO $C irm m N mO O _. m m LtC m'�FU m1- °Oa (-3'.=" C«ro V�m nU N� `a0.m - U al 0 (p Q Cr) DEED OF TRUST (AGAPE Pregnancy Resource Center) 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: 0111A/ 1 , 2006 Grantor (whether one or more): AGAPE PREGNANCY RESOURCE CENTER, a Texas non-profit corporation Grantor's Mailing Address (including county): AGAPE Pregancy Resource Center 104 East Main Street 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, Texas Beneficiary: City of Round Rock, Texas, a Texas corporation Beneficiary's Mailing Address (including county): City of Round Rock Attn: Community Development Coordinator 221 East Main Round Rock, Texas 78664 Williamson County, Texas Note(s) Date: 001O2339ivr R -D4 -O1-27• II DI zU LAI c ` , 2006 Amount: $116,961.00 Maker (whether one or more): AGAPE PREGANCY RESOURCE CENTER Payee: CITY OF ROUND ROCK, TEXAS, a Texas corporation Final Maturity Date: As provided in the Note. Terms of Payment: As provided in the Note. Obligation Date: �u L. I a 7 , 2006 Agreement: Community Development Block Grant Public Facilities Loan Agreement Loan amount: $116,961.00 Borrower: AGAPE Pregnancy Resource Center Lender: City of Round Rock Property (including any improvements): The certain real property more particularly described as Lot 7 and five feet and ten inches off the West side of Lot 6, Block "22", Original City of Round Rock, a Subdivision in Williamson County, Texas, according to the map or plat thereof recorded in Cabinet A, Slides190-191, Plat Records of Williamson County, Texas, 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 $ 370,000.00 of the 2nd of February 2006, executed by Grantor, payable to the order of Independent Bank (herein "Financial Institution"), including without limitation the liens evidenced by that certain deed of trust and security agreement, of even date, executed by Grantor in favor of Financial Institution and recorded in the real property records of Williamson County, Texas. Other Exceptions to Conveyance and Warranty: 1. Note dated of even date herewith, between Grantor and Beneficiary (the "Note"). All obligations and covenants in the Note shall terminate on the date Beneficiary, in its sole discretion, issues a release of all present and future rights to establish or enforce the Deed of Trust lien that secures the Note. The release shall be in such form as to 2 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. 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. not use any portion of the Property for anything other than a service center to provide pregnancy services, counseling and classes; 2. keep the Property in good repair and condition; 3. pay all taxes and assessments on the Property when due; 4. preserve the lien's priority as it is established in this Deed of Trust; 5. 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; 6. deliver the insurance policy to Beneficiary and deliver renewals to Beneficiary at least ten (10) days before expiration; 7. keep any buildings occupied as required by the insurance policy; 8. 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; 9. 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; 10. comply at all times with the terms, representations, and conditions of the Note; and 11. comply at all times with the requirements, covenants, terms and conditions of the Obligation. 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 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 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 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. 5. be indemnified by Beneficiary against all costs, expenses, and liabilities incurred by Trustee for acting in the execution or enforcement of the trust created by this deed of trust, which includes all court and other costs, including attorney's fees, incurred by Trustee in defense of any action or proceeding taken against Trustee in that capacity. General Provisions 1. If any of the Property is sold under this Deed of Trust, Grantor shall immediately surrender possession to the purchaser. If Grantor fails to do so, Grantor shall become a tenant at sufferance of the purchaser, subject to an action for forcible detainer. 2. If Grantor transfers any part of the Property without Trustee's prior written consent, Trustee may declare the Note secured by this Deed of Trust immediately payable and invoke any remedies provided in this Deed of Trust for default. If the Property is residential real property containing fewer than five dwelling units or a residential manufactured home occupied by Grantor, exceptions to this provision are limited to (a) a subordinate lien or encumbrance that does not transfer rights of occupancy of the Property; (b) creation of a purchase -money security interest for household appliances; (c) transfer by devise, descent, or operation of law on the death of a co -Grantor; (d) 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 8. 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 5 not in default under the Note or this Deed of Trust. Grantor will apply all rent and other income and receipts to payment of the Note and performance of this Deed of Trust, but if the rent and other income and receipts exceed the amount due under the Note and Deed of Trust, Grantor may retain the excess. If Grantor defaults in payment of the Note or performance of this Deed of Trust, Beneficiary may terminate Grantor's license to collect and then as Grantor's agent may rent the Property if it is vacant and collect all rent and other income and receipts. Beneficiary neither has nor assumes any obligations as lessor or landlord with respect to any occupant of the Property. Beneficiary may exercise Beneficiary's rights and remedies under this paragraph 8 without taking possession of the Property. Beneficiary shall apply all rent and other income and receipts collected under this paragraph 8 first to expenses incurred in exercising Beneficiary's rights and remedies and then to Grantor's obligations under the Note and this Deed of Trust in the order determined by Beneficiary. Beneficiary is not required to act under this paragraph 8, and acting under this paragraph 8 does not waive any of Beneficiary's other rights or remedies. If Grantor becomes a voluntary or involuntary bankrupt, Beneficiary's filing a proof of claim in bankruptcy will be tantamount to the appoint of a receiver under Texas law. 9. The lien created by this Deed of Trust will be subordinate to the lien securing payment of a note in the original principal amount of THREE HUNDRED AND SEVENTY THOUSAND AND 00/100 DOLLARS ($ 370,000.00), which is dated February 2, 2006, executed by Grantor, payable to the order of Independent Bank, and more fully described in a deed of trust recorded in Document No. 2006008162 of the real property records of Williamson County, Texas. If default occurs in payment of any part of principal or interest of that $ 370,000.00 note or in observance of any covenants of the deed of trust securing it, the entire debt secured by this Deed of Trust will immediately become payable at the option of Beneficiary. 10. 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. 11. Grantor represents that this Deed of Trust and the Note are given as security for money provided for home repairs on the Property. 12. 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. 13. 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. 6 14. 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. 15. 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. 16. When the context requires, singular nouns and pronouns include the plural. 17. The term "Note" includes all sums secured by this Deed of Trust. 18. This Deed of Trust shall bind, inure to the benefit of, and be exercised by successors in interest of all parties. 19. 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: AGAPE Pregnan. ' Re By: Name: Title: 7 urce Center ACKNOWLEDGMENT STATE OF TEXAS COUNTY OF WILLIAMSON This instrument was acknowledged before me on this the 21 day of % , 2006 by C, 11. C ,.•es - I. as Pres i d eLr f on behalf of A APE Pregnancy Resource Center. PLEASE RETURN TO: Sheets & Crossfield, P.C. 309 E. Main St. Round Rock, Texas 78664 Notary Public, St 8 AA e of Texas REAL ESTATE LIEN NOTE (AGAPE Pregnancy Resource Center) Date: Ott LAI 'i , 2006 Maker (whether one or more): AGAPE PREGNANCY RESOURCE CENTER, a Texas non-profit corporation Maker's Mailing Address (including county): AGAPE Pregnancy Resource Center 104 East Main Street Round Rock, Texas, 78664 Williamson County Payee: CITY OF ROUND ROCK, TEXAS Property: Lot 7 and five feet and ten inches off the West side of Lot 6, Block "22", Original City of Round Rock, a Subdivision in Williamson County, Texas, according to the map or plat thereof recorded in Cabinet A, Slides 190-191, Plat Records of Williamson County, Texas. 1. Place for Payment (including county): CITY OF ROUND ROCK Attn: Community Development Coordinator 221 East Main Street Round Rock, Texas 78664 Williamson County or any other place that Payee may designate in writing. 2. Principal Amount: ONE HUNDRED SIXTEEN THOUSAND NINE HUNDRED SIXTY-ONE AND NO/100 DOLLARS ($116,961.00) 3. Annual Interest Rate: 0% 4. Maturity Date: The date the Project, described in the Community Development Block Grant Public Facilities Loan Agreement is completed; evidenced by the issuance of a Certificate of Occupancy by the City. 00I02336/vr 5. Annual Interest Rate on Matured, Unpaid Amounts: 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 10 of this Note. 6. Maker's Promise to Pay a. Purpose This Note implements requirements applicable to assistance furnished by Payee to Maker under a program to help low to moderate income persons 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 construction of improvements on the Property, for use by Maker as a service center providing pregnancy testing, counseling, and classes. 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. 7. Terms of Payment: a. Subsidy Repayment Obligation Principal In return for assistance Maker has received with respect to construction of improvements on 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 11. 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 the date stated in Paragraph 4. If the Property is sold, leased or there is a transfer of title of the property, including transfer by contract for deed, within the time period this Note is in place, Maker shall repay the principal loan amount to Payee. If there is no sale, lease, or transfer of title of the Property within of the time period this Note is in place, the loan shall be forgiven. 8. 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 Institution as defined below, which Notes are secured by the Senior Lien as defined below, and as renewed, extended, re -amortized, or otherwise adjusted from time to time; provided, however, that the renewal, extension, or 2 other credit extension does not constitute an increase in the unpaid principal balance of the Financial Institution's 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 11 of this Note. d. If Maker defaults in the payment of this Note or in the performance of any obligation in any instrument securing or collateral to this Note, Payee may declare the unpaid principal balance and earned interest on the Note immediately due. Maker and each surety, endorser, and guarantor waive all demand for payment, presentation for payment, notice of intention to accelerate maturity, notice of acceleration of maturity, protest, and notice of protest, to the extent permitted by law. e. IF MAKER SHALL DEFAULT, BREACH, OR COMMIT AN UNCURED EVENT OF DEFAULT WITH RESPECT TO THE LOAN AGREEMENT THAT IS DATED , 2006 AND EXECUTED BY MAKER AND PAYEE, THE DEFAULT UNDER THE LOAN AGREEMENT SHALL BE A DEFAULT UNDER THIS NOTE. 9. Additional Definitions: a. "Bona Fide Net Resale Proceeds" means the amount calculated by the Note Holder by subtracting from the contract sales price between the Maker and the proposed buyer for the Property the amounts due on the Closing Date on any "Senior Liens" and on "Maker's Other Liens", and also subtracting the amount of any reasonable and customary sales expenses paid by the Maker in connection with the sale, each as determined by the Note Holder. If any part of the contract sales price for the Property is paid in the form of a promissory Note, or any thing of value other than lawful money of the United States, the Note Holder is hereby authorized to assign a fair market value thereto. Maker agrees to accept such thing of value at such assigned fair market value as part of maker's equity, or to allow it to be retained by the Note Holder as Alternate Principal, as the Note Holder in its sole discretion may determine. b. "Closing Date" means the date of closing of Maker's sale of the Property to a buyer, or if there is no formal closing, the date on which the conveyance (deed) is recorded. 3 c. "Financial Institution" means Independent Bank. d. "CDBG" means Community Development Block Grant program. e. "HUD " means the United States Department of Housing and Urban Development. f. "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. g. "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. h. "Senior Lien Note" means another Note in the original principal amount of $370,000.00, of the 31st of January 2006, executed by Maker, payable to the order of Financial Institution, and fully described in the Senior Lien. i. "Senior Lien" means a deed of trust recorded or to be recorded in the real property records of Williamson County, Texas. j. "Subordinate Security Instrument" means the instruments identified in Paragraph 9.a. 10. 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. 11. 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 12: 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. 4 ii. Any Transfer of the Property. Any transfer of the Property or any interest therein (including a beneficial interest) within of the time period this Note is in place 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 11. 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. iii. The Property or Maker is not Eligible under CDBG. The Maker is in default under this Note, if: (1) at the time the Note was signed by Maker, the Property: (a) did not become the principal office 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; or (2) 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 these activities, 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. iv. 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 Institution's $ 370,000.00 Note or in observance of any obligations or covenants of any instruments securing it, the debt evidenced by this $116,961.00 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. v. Any Refinancing of the Senior Lien Note. If either the Senior Lien Note is 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 7. vi. 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 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 11.c. c. Payment of Note Holder's Costs and Expenses If the Note Holder has notified Maker to pay immediately in full under Paragraph 11 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 11, the Note Holder 6 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. 12. 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. 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. 13. 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. 14. 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. 15. 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. 7 16. 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 16, upon full prepayment under Paragraph 10, upon payment of all amounts due upon Default under Paragraph 11, or upon recordation of a deed -in -lieu of foreclosure. 17. 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. PLEASE RETURN TO: AGAPE Pregnancy ' es , rce Center By: Name: Title: Sheets & Crossfield, P.C. 309 E. Main St. Round Rock, Texas 78664 8