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MIXED-FINANCE AMENDMENT

By Kathy Wood,2014-08-08 04:11
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MIXED-FINANCE AMENDMENT

    This is a proposed mandatory form document to be required by HUD.

     This document may not be changed without HUD’s prior written approval.

    MIXED-FINANCE AMENDMENT

    TO CONSOLIDATED ANNUAL CONTRIBUTIONS CONTRACT

     Section 1. This Mixed-Finance Amendment to Consolidated Annual Contributions Contract (“Mixed-Finance ACC Amendment”) is entered into between the United States

    Department of Housing and Urban Development (HUD) and (the

    Authority”) and covers the public housing units and related appurtenances, which is part of:

    (A) Public Housing Project name: ____________________________________ (the "Project" or

    the "Project Units" as further defined in Section 5(K)); (B) which has a Public Housing Project number of __________________________________; and (C) which is part of a larger development known as _________________________________ (the "Development," as further

    defined in Section 5(K)).

     Section 2. Funding derived from the following Capital Fund Project Number, the Development Grant Project Number and/or HOPE VI Grant Agreement Number is dedicated for use in developing the Project and/or the Project Units in accordance with this Mixed-Finance ACC Amendment:

     (A) Capital Fund Project Number: _________;

     (B) Development Grant Project Number:____________________;

     (C) HOPE VI Grant Agreement Number: ___ ___;

     (D) Moving to Work (“MTW”) Agreement Number: ____________________.

     Section 3. This Mixed-Finance ACC Amendment is an amendment to Consolidated Annual Contributions Contract (ACC) (Form HUD-53012A and Form HUD-53012B) Number

     , dated ; as Amendment Number .

     Section 4. The ACC is amended to provide grant assistance for the Project identified in Section 2 and/or to add the Project Units to the ACC. This Mixed-Finance ACC Amendment is part of the ACC and incorporates Exhibits A-H, which are attached hereto.

     Section 5. The following provisions are applicable to the Project:

     (A) Date of Capital Fund Project grant reservation: .

     (B) Date of Development Grant Project reservation: .

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     (C) Date of HOPE VI Grant Agreement obligation: .

     (D) Number of Project Units to be developed: .

     (E) Housing Type: .

     (F)(1) For projects to be developed using Capital Funds, the total amount of Capital Funds authorized to be used for the Project (the Capital Fund Grant Authority) is: .

     (2) For projects to be developed using Development Grant Funds, the total amount of Development Grant Funds authorized to be used for the Project (the Development Grant Authority) is: .

     (3) For projects to be developed using HOPE VI Grant Funds, the total amount of HOPE VI Grant Funds authorized to be used for the Project is: .

     (4) For projects to be developed using MTW funds, the total amount of MTW Block Grant Funds authorized to be used for the Project is: .

     (G) The Project Units will be (check one): [designated units ]; [undesignated units ]

    in the mixed-finance development.

     (H) The Project Units are (check one): [eligible ]; [ineligible ] to receive

    public housing Operating Fund assistance (“Operating Fund assistance”) under section 9(e) of

    the United States Housing Act of 1937 (42 U.S.C. 1437, et. seq.) ("the Act"). If some or all of

    the Project Units are eligible to receive Operating Fund assistance, specify the number of eligible units (including the number of bedrooms per unit) that will be eligible to receive such assistance:

     units; containing bedrooms.

     (I) The Project Units shall be ineligible to receive Capital Fund assistance in the future unless the Authority executes a project-specific ACC Capital Fund amendment in connection with the Projects Units.

     (J) The definitions set forth in 24 CFR part 941, subpart F, are applicable to this Mixed-Finance ACC Amendment.

    (K) As used in this Mixed-Finance ACC Amendment, the term "Development" shall refer

    to the entire housing facility, containing dwelling units, being developed using a

    mixed-finance strategy, and the term "Project," as used herein and as used in the ACC with

    respect to Project Number , shall refer only to the units of the Development

    (containing bedrooms) which shall be developed and continuously set aside, operated, and maintained as public housing units (the "Project Units"). Nothing contained

    herein shall be construed as requiring that any dwelling units included in the Development shall Revised: May 2004

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     at any time be maintained and operated in accordance with the ACC, or constitute part of a

    "project" as defined in the ACC, other than the units constituting from time to time the Project Units.

     Section 6 - Authority certifications and assurances.

    (A) By executing this Mixed-Finance ACC Amendment, the Authority certifies to HUD and, as applicable, agrees that:

    (1) it has executed with HUD a 1995 version of the ACC to facilitate the execution of this Mixed-Finance ACC Amendment;

    (2) any Project Units to be newly constructed at the Development with Capital Funds under section 9(d) of the Act, or with Operating Funds under section 9(g)(2) of the Act (applicable to small Authorities, only), are eligible to receive formula funding in accordance with the requirements set forth in section 9(g)(3) of the Act;

    (3) any Project Units to be added by this Mixed-Finance ACC Amendment constitute public housing replacement units in accordance with 24 CFR ? 941.102(c);

     (4) the Project will be developed in accordance with the HUD-approved budget and sources and uses set forth in Exhibit F of this Mixed-Finance ACC Amendment, and in accordance with the HUD-determined total development cost (TDC) limits for the Project;

     (5) it has the legal authority under State and local law to develop public housing units through the establishment or selection of an owner entity (the “Owner Entity”), and to enter into

    all agreements and provide all assurances required under 24 CFR part 941 (subpart F), the HUD-approved proposal submitted by the Authority under 24 CFR part 941, subpart F (“the

    Proposal”), and this Mixed-Finance ACC Amendment. The Authority also warrants that it has the legal authority under State and local law to enter into any proposed partnership and to fulfill its obligations as a partner thereunder, and that it has obtained all necessary approvals for this purpose;

     (6) it will ensure that the requirements for admission to, continued occupancy of, management, and modernization of the Project Units are in accordance with all requirements applicable to public housing, including the Act, HUD regulations thereunder (and, to the extent applicable, any HUD-approved waivers of regulatory requirements), the ACC, this Mixed-Finance ACC Amendment, the HOPE VI Grant Agreement and the HOPE VI

    Revitalization Plan for the Project (if applicable), the HUD-approved mixed-finance proposal under 24 CFR part 941 (subpart F) relating to the Project (the “Proposal”), the Authority’s

    standard public housing admissions and occupancy policies adopted in accordance with Federal law and described in the Authority’s approved Public Housing Agency Annual Plan, or any

    approved amendment to the Plan (the “Plan”) or any contrary provisions in the MTW

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Housing Authority of: Grant #:

     Agreement; provided, however, that the Authority may adopt modifications of its standard public

    housing admissions and occupancy policies for purposes of its mixed-finance projects generally, or specifically for the Project, to the extent these modifications conform with the requirements of Federal law, including but not limited to 24 CFR parts 903, 960, and 966 (and expressly including tenants’ advance notice and comment rights afforded by 24 CFR ? 966.3 and ? 966.52

    relating to modifications of standard public housing lease and grievance procedures, respectively), and such modified admissions and occupancy policies are described in the Plan and made applicable to the Project prior to occupancy, and all other pertinent Federal statutory, executive order, and regulatory requirements, as those requirements may be amended from time to time (the requirements set forth in subparagraphs (6) and (7) of this Section 6(A) are hereafter to be collectively referred to as the “Applicable Public Housing Requirements”);

     (7) it will ensure that the Project is developed in accordance with all requirements applicable to the development of public housing, including, without limitation, the Act, the ACC (except that any requirement set forth in the ACC shall be superseded by a modified requirement set forth in this Mixed-Finance ACC Amendment), the Mixed-Finance ACC Amendment, the Proposal, the HUD-approved declaration of restrictive covenants to be recorded against the Development (the "Declaration"), the HOPE VI Grant Agreement and the HOPE VI

    Revitalization Plan (if applicable), and all other pertinent Federal statutory, executive order, and regulatory requirements, as those requirements may be amended from time to time.

     (8) there is no action, proceeding, or investigation now pending, nor any basis therefor, known or believed to exist by the Authority, which: (i) questions the validity of this Mixed-Finance ACC Amendment, or any action taken, or to be taken, under it, or; (ii) is likely to result in any materially adverse change in the authorities, properties, liabilities, or condition (financial or otherwise) of the Authority or the Proposal, or of any participating party, that would materially or substantially impair the Authority's or such participating party's ability to perform any of the obligations imposed upon it under the Proposal and this Mixed-Finance ACC Amendment;

     (9) it has obtained all Federal, State, and local government approvals, permits and reviews required by law, or reasonably required by HUD, to be obtained by the Authority for commencement of the activities set forth in the Proposal, and all participating parties have obtained all such approvals, permits and reviews required to be obtained by the participating parties for commencement of such activities;

    (10) it will develop the same number of public housing units as approved by

    HUD in the Proposal, and will do so within the TDC limits approved by HUD;

    (11) if the Authority will pay for more than its pro rata share of the cost of common area improvements related to the Development, it further agrees that the common area improvements will benefit all residents of the Development;

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     (12) to the extent the Authority's Proposal provides that public housing units within a

    Development will not be specifically designated as public housing units, but will be a fixed percentage of the housing units and number of bedrooms developed under the Proposal, the Authority agrees to provide additional binding assurances that the percentage of public housing units, and the percentage of bedrooms, to be developed under the Proposal are maintained by the Owner Entity for the term of the low income use restrictions;

     (13) it will immediately notify HUD of (i) any material change in any representations, statements, certifications or other matters contained in the Authority's Proposal, this Mixed-Finance ACC Amendment, and/or the HOPE VI Revitalization Plan (if applicable), and (ii) any default of which it has notice under any agreement submitted to HUD as part of the evidentiary materials hereunder;

     (14) it will ensure that the portion of reserves to be replenished with Operating Fund assistance provided under section 9(e) of the Act (the "Project Reserves") shall remain dedicated

    for use in operating and maintaining the Project Units, or shall be returned to the Authority for use in connection with its other public housing projects;

     (15) it will ensure that the Applicable Public Housing Requirements are binding upon the Owner Entity and any partner of the Authority and, to the extent determined necessary by HUD, upon any other participating party. In addition, in the event of any noncompliance with the requirements of the Applicable Public Housing Requirements, the Authority agrees to take all necessary enforcement action to ensure such compliance or, alternatively to pursue any legal or equitable remedies that HUD deems appropriate;

     (16) the representations, statements, certifications and other matters contained in the Proposal were, to the best of the Authority's information and belief, true and complete in all material respects as of the dates of submission of the Proposal to HUD (including the dates of any separate submissions for a specific phase), and upon the execution of this Mixed-Finance ACC Amendment and will continue to be true and complete in all material respects as of the date of any amendment to this Mixed-Finance ACC Amendment, except as modified by such amendment (and any corollary modification to the Proposal that the Authority deems necessary);

     (17) this Mixed-Finance ACC Amendment has been executed and delivered by the Authority in such a manner and form as to comply with all applicable laws so as to make this Mixed-Finance ACC Amendment the valid and legally binding act and agreement of the Authority;

     (18) it will use, or ensure the use of, Program Income during the grant period, in accordance with 24 CFR ? 85.25, only for eligible program costs or other affordable housing purposes as outlined in that certain HUD-approved Program Income Certification, attached hereto as Exhibit H, and incorporated herein by this reference. The Authority agrees that after the end of the award period, any gross income received by the Authority or a subgrantee that was Revised: May 2004

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     directly generated by a grant-supported activity (or earned only as the result of funding provided

    under Section 2 of this Mixed-Finance ACC Amendment), including, without limitation, principal and interest on loans made with grant funds, will be utilized solely for eligible program costs or other affordable housing purposes. This covenant will survive any termination of the grant and, at HUD's direction, may be incorporated into any documentation related to the closeout of the grant; and

     (19) it will take all steps necessary to ensure that, in the event of a foreclosure or other adverse action brought against the Owner Entity with respect to the Development (including, but not limited to the Project Units), the operation of the Project Units will not be adversely affected.

     (B) The Authority warrants that it will include, or cause to be included:

     (1) in all its agreements or contracts with the partner, the Owner Entity, and/or other participating parties receiving Development Grant Funds and/or Capital Funds under section 9(d) of the Act, HOPE VI Grant Funds under a HOPE VI appropriations act or section 24 of the Act, and/or Operating Funds under section 9(e) of the Act, an acknowledgement that a transfer of Development Grant Funds, Capital Funds, HOPE VI Grant Funds and/or Operating Funds by the Authority to the partner, the Owner Entity, or other participating party will not be (and shall not be deemed to be) an assignment of Development Grant Funds, Capital Funds, HOPE VI Grant Funds, and/or Operating Funds, and the partner, Owner Entity, or other participating party will not succeed to any rights or benefits of the Authority under the ACC or this Mixed-Finance ACC Amendment, or the HOPE VI Grant Agreement, if applicable, or attain any privileges, authorities, interests, or rights in or under the ACC or this Mixed-Finance ACC Amendment, or the HOPE VI Grant Agreement, if applicable.

     (2) in all its agreements or contracts with the partner, the Owner Entity, or other participating parties, and in all contracts with any party involving the use of Development Grant Funds, Capital Funds, HOPE VI Grant funds, and/or Operating Funds, a provision that nothing contained in the ACC or this Mixed-Finance ACC Amendment, or the HOPE VI Grant Agreement, if applicable, nor in any agreement or contract between the parties, nor any act of HUD, the Authority, or any of the parties, will be deemed or construed to create any relationship of third-party beneficiary, principal and agent, limited or general partnership, joint venture, or any association or relationship involving HUD; provided, however, that the mortgagee under the first mortgage or deed to secure debt and note secured thereby, as said documents are more specifically identified in Exhibit E hereto (respectively, referred to herein as the "First

    Mortgage" and "Note") shall be entitled to rely upon Section 12(C) and (D) of this

    Mixed-Finance ACC Amendment.

     (C) The Authority hereby acknowledges that HUD has approved the Proposal in reliance upon the Authority's representations that the Authority, the partner(s), the Owner Entity(ies), and other participating parties will, and the Authority hereby further agrees that it will, or will cause Revised: May 2004

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     the participating parties to:

     (1) carry out the activities ascribed to them in accordance with the Proposal and the approved evidentiary documents (as set forth in Exhibit E hereto) and the requirements of this Mixed-Finance ACC Amendment;

     (2) complete those activities in accordance with the schedule set forth in Exhibit D, including the development of the Project Units;

     (3) have (or will have when necessary to implement their activities in accordance with the Proposal), the financial capacity to assure carrying out the activities to their completion;

     (4) invest, or cause to be invested, in the activities described in the Proposal a specific amount of funds in addition to the Capital Funds, Development Grant Funds, or the HOPE VI Grant Funds, as applicable, in accordance with Exhibit F.

     (D) HUD has also relied upon the Authority's, the Owner Entity's, and the partner(s)'s representations that they and other participating parties, prior to the use of the Capital Funds, Development Grant Funds, or HOPE VI Grant Funds (as applicable) for the Proposal (and excepting front-end drawdown approved by HUD), will enter into legally binding agreements, as approved by HUD as part of the evidentiary material identified in Exhibit E to this Mixed-Finance ACC Amendment, evidencing the commitments of all parties necessary for completion of the Proposal, in compliance with the requirements of this Mixed-Finance ACC Amendment.

     Section 7 - Evidentiary Materials.

     (A) Content. The Authority shall submit to HUD for review and approval the

    evidentiary materials specified in Exhibit E to this Mixed-Finance ACC Amendment. Such evidentiary materials must be submitted in the form of legally binding and enforceable commitments of the participating parties to undertake and complete specified activities connected with the Proposal, as set forth below:

     (1) Evidence of Contracts

     Evidence of contractual commitments submitted to HUD must include all documents evidencing the contractual commitments, with an opinion of counsel attached (see paragraph (B)(2) of this section regarding the proper form for opinions of counsel).

     (2) Evidence of Loans, Closings, Bond Sales.

     (i) Evidence of a loan must be submitted in the form of copies of fully executed notes, Revised: May 2004

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     deeds, bonds, indentures, loan agreements, and other documents, which must contain sufficient

    evidence (satisfactory to HUD) to enable HUD to determine: that the loan has been closed and the funds are irrevocably committed and available to the borrower; the principal amount of the loan; its purposes (interim or permanent); and the authorized use of loan funds; the identity of the security for the loan; the term of the loan; the interest rate (and/or any other form of participation) under the loan; the repayment provisions; the default provisions; the identity of all parties to the loan; with an opinion of the Owner Entity's (and/or any other borrower's) counsel addressed to HUD in accordance with the requirements of paragraph (B)(2) of this section.

     (ii) If bonds or limited partnership interests are sold to finance the Proposal, the evidence must include a statement from the trustee or depository of the proceeds certifying that the bonds or limited partnership interests have been sold and the amount of the proceeds that are available immediately for the implementation of the Proposal, and must have an opinion of the Owner Entity's (and/or any other borrower's) counsel addressed to HUD in accordance with paragraph (B)(2) of this section. In the event that any portion of the proceeds of the sale of the bonds or limited partnership interests are to be made available over an extended period, or for any other reason are not immediately available in accordance with the Proposal, evidence of "bridge financing" loan(s) in such amount (secured by pledges from the limited partners or in another manner which does not encumber the Project), or other evidence satisfactory to HUD, must be submitted as part of the evidentiary materials, in accordance with paragraph (1) of this section. Notwithstanding the foregoing, the requirement for bridge loan financing will be waived to the extent that such proceeds are necessary only to cover the payment of developer fees (provided that the receipt of such proceeds are timed to coincide with deferred payments to the developer for its fees).

     (3) Evidence of Other Financing and Funding Sources (including other Federal,

    State and Local Commitments).

     (i) Whenever evidence is required in the form of a statement and opinion of counsel (or other party designated by HUD) that a participating party has irrevocably committed a specific amount of finances to carry out the commitment of that participating party under the Proposal, such evidence must be in the form of an opinion of counsel or such other party designated by HUD, made in accordance with paragraph (B)(2) of this section.

     (ii) The opinion of counsel (or other party designated by HUD) must certify that: such party has examined the availability of the participating party's financing, or other funding source; state the amount and the source of such financing or other funding committed by the participating party to the Proposal; and state that such financing or other funding has been irrevocably committed by the participating party for use in carrying out the Proposal and such commitment is in the amount required under the terms of the Proposal.

     (4) Evidence of Title.

     (i) Evidence of fee simple or leasehold title to real property must be in the form of an Revised: May 2004

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     original ALTA (or other form acceptable to HUD) policy of owner's or mortgagee's title

    insurance, which must identify the real property and the ownership interests of the Authority, Owner Entity, and other participating parties (as appropriate) as the owners or lessees of record of such property;

     (ii) The title policy must also reflect any instruments securing any private or public financing, including any loan of Capital Funds, Development Grant Funds, or HOPE VI Grant Funds, as applicable, that have been recorded against the title, and also reflect that the Declaration, as required by Section 10 of this Mixed-Finance ACC Amendment, is the first encumbrance recorded against the Development to ensure that the Project Units are operated in accordance with the Applicable Public Housing Requirements for the period required by law and this Mixed-Finance ACC Amendment.

     (B) Form of evidentiaries.

     (1) Submissions. All documentary evidence submitted to HUD must be in the form of either duplicate original(s) of the fully executed document(s), or photographic copies of the fully executed original of the document(s), unless otherwise specified, with a certification attached that the document is a true and complete copy of the original.

     (2) Opinions of counsel.

     (i) Counsel must opine to the following for each document submitted as evidentiary material under Exhibit E to this Mixed-Finance ACC Amendment:

     (a) An examination of the authority of all parties to the documents and all persons executing the documents on behalf of the parties has been made and that the parties and said persons were authorized to enter into and execute the documents; and

     (b) Each document constitutes a valid and legally enforceable agreement or contract under the laws of the Authority's State and the commitments and/or agreements evidenced thereby can be carried out in accordance with their terms under State and local law, and conform to the provisions of the Proposal approved by HUD and the requirements of this Mixed-Finance ACC Amendment, and that there is nothing in such document that conflicts with, or is inconsistent with, the Proposal and this Mixed-Finance ACC Amendment.

     (ii) Minimally, separate written opinions of the Authority’s counsel and the Owner Entity’s counsel are required.

     (iii) Counsel may rely upon the certification of other persons, or the written statements or opinions of other counsel, provided that a copy of each such certification, statement, or opinion must be attached to the opinion of that counsel.

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     (iv) If counsel predicates an opinion upon "information and belief," then in all such cases

    the counsel's opinion must contain, or have attached thereto, a statement or description of all of the information upon which the belief of counsel is predicated.

     (C) Amendment of approved evidentiaries. After HUD has approved an evidentiary

    submitted in accordance with this Mixed-Finance ACC Amendment, the evidentiary may not be amended in any material respect without the prior written approval of HUD.

     Section 8 - Draw down of Funds.

     (A) The Authority shall ensure that grant funds are expended only in accordance with the requirements set forth in this Mixed-Finance ACC Amendment and the approved budget set forth in Exhibit F to this Mixed-Finance ACC Amendment.

    (B) In the event that funds in addition to those set forth in the budget(s) at Exhibit F are

    received from any source in connection with the Development, such excess funds may

    only be used, as approved by HUD in writing, for: (1) cost overruns; (2) additional

    betterments; or (3) other purposes for the benefit of the Project residents and/or the

    Development.

     (C) Notwithstanding any contrary requirement set forth in 24 CFR ?85.21, the Authority shall request all draw downs of grant funds under the Line of Credit Control System - Voice Response System (LOCCS-VRS), unless and until another payment system is designated by HUD. The Authority shall comply with all rules, guidelines and notices established for the development of public housing under the LOCCS-VRS system, or any substitute system, in connection with the draw down of Development Grant Funds, Capital Funds, or HOPE VI Grant Funds, if applicable. If HUD designates an alternative payment system, it shall be based on 24 CFR ?85.21.

     (D) HUD may withhold payments under this Mixed-Finance ACC Amendment in

    accordance with 24 CFR ?85.21(g), except that indebtedness of the Authority to the United States which is not related to a Project under this Mixed-Finance ACC Amendment shall not be the basis for withholding payments under this Mixed-Finance ACC Amendment pursuant to 24 CFR ? 85.21(g)(1)(ii).

     (E) After HUD provides the Authority with written notification that the evidentiaries listed in Exhibit E have been reviewed and approved, the Authority may request a draw down of grant funds pursuant to the approved budget in Exhibit F.

     (F) The Authority may utilize grant funds, in accordance with the budget under Exhibit F, for publication costs of reports or other media relating to Project accomplishments or results, which are allowable costs pursuant to OMB Circular A-87, Schedule B, paragraph 23.

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