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MIXED-FINANCE AMENDMENT_ TO CONSOLIDATED

By Karen Harris,2014-08-08 04:11
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MIXED-FINANCE AMENDMENT_ TO CONSOLIDATED

    MIXED-FINANCE AMENDMENT TO CONSOLIDATED

    ANNUAL CONTRIBUTIONS CONTRACT

    [OPERATING FUNDS ONLY]

     Section 1. This Mixed-Finance Amendment to Consolidated Annual Contributions Contract [Operating Funds Only] 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 4(E)); (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 4(E)).

     Section 2. 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 3. The ACC is amended to provide assistance in the form of Operating Fund assistance under section 9(e) of the United States Housing Act of 1937 (42 U.S.C. 1437, et. seq.)

    (the "Act”) for the Project and/or the Project Units (as those terms are defined in Section 4(E)),

    and to add the Project Units to the ACC. This Mixed-Finance Amendment is part of the ACC and incorporates Exhibits A-D, which are attached hereto.

     Section 4. The following provisions are applicable to the Project:

     (A) Number of Project Units: , which shall include a total of bedrooms.

     (B) Housing Type: .

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

    in the Development.

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

    (E) 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

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Replacement Unit Project Number , shall refer only to the units

    of the Development (containing bedrooms) all of which must be “replacement units” as that

    term is defined by HUD at 24 CFR ? 941.102(c), or any successor provision, and must be developed and continuously set aside, operated, and maintained as public housing units (the "Project Units"), except as expressly provided herein. Nothing contained in this Mixed Finance ACC Amendment shall be construed as requiring that any dwelling units included in the Development shall 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 contained therein constituting from time to time the Project Units.

    (F) As used in this Mixed-Finance ACC Amendment, the term “Proposal” means a

    mixed finance proposal approved by HUD which meets the requirements of 24 CFR ? 941.606, as modified by this Section 4(F), and which includes the following: (a) an identification of the participating parties and a description of the activities to be undertaken by each of the participating parties and the Authority; (b) a description of the proposed Development, including the number and type of Project Units (with bedroom count) and, if applicable, the number and type of non-Project Units (with bedroom count); (c) the proposed methodology for providing operating subsidies on behalf of the Project Units; (d) a summary of the proposed management and occupancy policies to be implemented at the Project, including any use of local preferences, restricting admissions to the elderly or physically disabled, use of a site-based waiting list, etc.; (e) if the Project is to be newly constructed, evidence of compliance with section 6(h) of the Act; (f) the Authority certifications required by 24 CFR 941.606(n)(1); and (g) relocation information, as required by 24 CFR 941.606(i).

     Section 5 - 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) it has the legal authority under State and local law to develop the Project Units through the establishment or selection of an owner entity (“Owner Entity”), and to enter into all

    agreements and provide all assurances required under 24 CFR part 941 (subpart F), the HUD-approved 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;

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    (3) the Project Units qualify as “replacement units,” as provided by HUD under 24 CFR

    ? 941.102(c)(1) (or, if applicable, any successor provision);

    (4) it will ensure that the Project Units are constructed, rehabilitated or acquired without using Federal public housing capital funds, including but not limited to Capital Funds provided under section 9(d) of the Act or HOPE VI grant funds;

     (5) 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.

     (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 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”); 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, 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 (5) and (6) of this Section 5(A) are hereafter to be collectively referred to as the “Applicable Public Housing Requirements”);

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     (7) it will ensure that the Project Units, after being developed in accordance with this Mixed Finance ACC Amendment, shall not be eligible to be rehabilitated with Capital Funds, except as follows:

    (i) the Authority, with the approval of the Owner Entity and HUD, must enter into a

    Capital Fund amendment to the ACC that specifically covers the number of Project

    Units in the Development and includes provisions relating to the Owner Entity’s

    obligations with respect to the Project Units in the event of casualty or condemnation,

    and that also requires the Project Units to be operated and maintained as public

    housing in accordance with the requirements of paragraph (6) for a 20-year period

    beginning on the latest date on which modernization of the Project Units (or any

    portion thereof) is completed, or as otherwise required by law;

    (ii) the parties to the Ground Lease, the Regulatory and Operating Agreement, and/or any

    other document, as required by HUD, must enter into amendments to those

    agreements, in form and substance satisfactory to HUD, providing that the Project

    Units will be operated as public housing in accordance with the public housing

    requirements for not less than the 20 year period described in subparagraph (i); and

    (iii) the Owner Entity must fully execute and record as the first encumbrance against the

    Development the Declaration to protect the rights and interests of HUD throughout

    the 20-year period described in subparagraph (i), during which time the Authority and

    the Owner Entity shall be obligated to cause the operation of the Project Units in

    accordance with all public housing requirements as set forth in paragraph (6).

     (8)(i) The parties hereto acknowledge section 9(e)(3) of the Act prohibits the disposition of any portion of the Project before the expiration of the 10-year period beginning upon the end of the fiscal year in which operating subsidies were provided, “except as otherwise provided in the Act.” Section 9(m)(2) of the Act thereafter permits the Secretary to reduce, by regulation, the term of this prohibition on disposition. The parties further acknowledge that regulations to implement the authority in section 9(m)(2) of the Act have not yet been issued; however, in the event the Project satisfies the terms set forth in such regulations for an early termination of the 10-year prohibition on disposition, the Project may obtain the benefit of this subsequent regulatory authority. Moreover, if the Project qualifies for an early termination of the 10-year prohibition on disposition under section 9(m)(2) of the Act and HUD's implementing regulations, the Authority may (on behalf of the Owner Entity) request a waiver of the 10-year low income use requirement in 24 CFR ? 969.105(a). HUD will not unreasonably withhold its approval of such a waiver so long as the Authority has demonstrated good cause for the waiver.

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    Alternatively, the Authority may seek, pursuant to section 18 of the Act, to (ii)

    dispose of the units and thereby terminate the 10-year prohibition on disposition and the low-income use restrictions. In such case, HUD may approve the disposition of the Project from the public housing program if it determines such action to be consistent with the Act.

    (9) it will ensure that the Project Units are operated as public housing in accordance with the requirements of paragraph (6) for the period that is the longer of:

    (i) expiration of the 10-year period beginning upon the conclusion of the fiscal year for

    which Operating Fund assistance is last provided by the HA for the benefit of the

    Project Units, as provided in 24 CFR ? 969.105 (or successor regulation); or

    (ii) if applicable, the expiration of the 20-year period beginning on the latest date on

    which modernization of the Project Units (or any portion thereof) is completed using

    Capital Funds, in accordance with paragraph (7) of this Mixed Finance ACC

    Amendment, and as required by section 9(d)(3)(B) of the Act;

    (10) the Project Units shall be treated, for purposes of calculating the Authority's Operating Fund formula allocation, as any other public housing unit in the Authority's inventory (see 24 CFR part 990);

    (11) the Project Units shall be treated, for purposes of calculating the Authority's Capital Fund formula allocation, as any other mixed finance public housing unit in the Authority's inventory, in accordance with such requirements as may be prescribed by statute and/or HUD regulations.

    (12) to the extent the Authority intends to provide Capital Funds for the rehabilitation of undesignated Project Units within the Development, over a five-year period such funds may only be provided to the number of Project Units indicated in Section 4(A) of this Mixed Finance ACC Amendment.