RES 1994-2367 - Agmt with Orchard Manor Corporation for construction of residential units •
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o�9':Ikiiiii ��-k� August 23, 1994 i-jg i i =•_
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City of Omaha
P.J.Morgan,Mayor
Honorable President
Planning Department
Omaha/Douglas Civic Center and Members of the City Council,
1819 Farnam Street,Suite 1100
Omaha,Nebraska 68183-0110200
4
(402) 44-520 The attached Resolution approves an Agreement between the City
. (402)444-5150 of Omaha and Orchard Manor Limited Partnership; General Partner:
Telefax(402)444-6140 Orchard Manor Corporation, a non-profit corporation, 6655 Redick
Avenue, Omaha, Nebraska 68152, for the construction of
Gary L.Pryor forty-eight (48) multi-family residential units at 36th and
Director Orchard Streets and the subsequent rental of each unit to
qualified low-income families. Twenty-four (24) of the units
will be designed to house persons with a hearing impairment, and
three units shall be handicapped accessible.
Funding from the City in the amount of $980,000 will be in the
form of a Repayable Loan comprised of $195,000 in 1993 HOME
funds, $559,000 in 1994 HOME funds and $226,000 in KENO/Lottery
matching funds.
The 1993 and 1994 Home Program Description identifies this
project as a priority program. Funds from the 1993 Program Year
were approved by the City Council on June 15, 1993 by Resolution
No. 1410 as part of the City's HOME Investment Partnerships
Program. Funds from the 1994 Program were included in the 1994
Home Program Description approved by the City Council on July
26, 1994, by Resolution No. 2145.
Other sources of funds include $815,000 permanent financing and
$1,549,770 from private sources and equity. The total project
cost is estimated at $3,344,770.
This project represents an innovative method of encouraging
infill development and expanding residential opportunities for
low income families desiring to live in the South Omaha
Community.
Honorable President and
Members of the City Council
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The Contract Compliance Ordinance requires that the Human Relations Director
conduct a pre-award review of the employment practices of a contractor with a
City Contract of $500,000 or more. The Council Agenda shows that Orchard
Manor Limited Partnership is to be awarded $980,000 for the construction of
forty-eight (48) multi-family residential units at 36th and Orchard Streets.
The Human Relations Director has conducted a review of the Orchard Manor
Limited Partnership, which showed that they are in compliance with the
provisions of the Contract Compliance Ordinance.
We urge your favorable consideration of this Resolution.
Sincerely, Referr.._ the City Council for
Consid - ioi :
/ _�t!_:
,a2y L. Pryor, Director Mayor's 0 MIT 'tie
Planning Department
Approved as to Funding: Approved:
William Miske 1, Director Diane L. Thomas, Director/a
Finance Department Human Relations Department
8065v
‘.
AGREEMENT
THIS AGREEMENT is entered into by and between the City of Omaha, a
Municipal Corporation in Douglas County, Nebraska (sometimes hereinafter
referred to as "City") and the Orchard Manor Limited Partnership; General
Partner: Orchard Manor Corporation, a non-profit corporation, 6655 Redick
Avenue, Omaha, Nebraska 68152, for the construction of forty-eight (48)
residential units at 36th and Orchard Streets and the subsequent rental of
each unit to qualified low-income households. Twenty-four (24) of the units
will be designed to house persons with a hearing impairment and three (3)
units shall be handicapped accessible.
RECITALS:
WHEREAS, the City of Omaha is a municipal corporation located in Douglas
County, Nebraska and is organized and existing under the laws of the State of
Nebraska and is authorized and empowered to exercise all powers conferred by
the State Constitution, laws, Home Rule Charter of the City of Omaha, 1956, as
amended, and local ordinances, including but not limited to, the power to
contract; and,
WHEREAS, the HOME Investment Partnerships Program Rules and Regulations,
Section 92-205, authorizes financing new construction of residential units
through the use of HOME funds to provide affordable residential units to
qualified low-income families; and,
WHEREAS, HOME Program financing is intended to benefit low and moderate
income families whose annual income does not exceed 80% of the median income
by family size for the Omaha Metropolitan Area as established on an annual
basis by the U.S. Department of Housing and Urban Development; and,
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',I
WHEREAS, funding from the City in the amount of $980,000 will be in the
form of a Repayable Loan comprised of $195,000 of 1993 HOME funds, $559,000 of
1994 HOME funds and $226,000 in KENO/Lottery funds; and,
WHEREAS, the 1993 and 1994 Home Program Description identifies this
project as a priority program; and,
WHEREAS, funds from the 1993 Program Year were approved by the City
Council on June 15, 1993 by Resolution No. 1410 as part of the City's HOME
Investment Partnerships Program; and,
WHEREAS, funds from the 1994 Program Year were approved by the City
Council on July 26, 1994 by Resolution No. 2145; and,
WHEREAS, other sources of funds include $815,000 permanent financing and
$1,549,770 from private sources and equity for a total estimated project cost
of $3,344,770; and,
WHEREAS, this project represents an innovative method of encouraging
infill development and expanding residential opportunities for low-income
families desiring to live in the South Omaha Community; and,
WHEREAS, it is necessary for the City of Omaha to enter into an Agreement
with the Orchard Manor Limited Partnership; General Partner: Orchard Manor
Corporation to provide partial financing for the construction of forty-eight
(48) multi-family residential units (of which twenty-four (24) units will be
designed to house persons with a hearing impairment and three units shall be
handicapped accessible) at 36th and Orchard Streets and the subsequent rental
of each unit to qualified low-income households.
NOW, THEREFORE, IN CONSIDERATION of the mutual agreements herein
contained, the parties hereto agree as follows:
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Section 1. Definitions
The following terms shall have the following meanings for all purposes in
this Agreement.
1.1 "Developer" shall mean - Orchard Manor Limited Partnership; General
Partner: Orchard Manor Corporation, a Non-profit Corporation, 6655
Redick Avenue, Omaha, Nebraska, 68152 (See Exhibit A).
1.2 "OMLP" shall mean - The Orchard Manor Limited Partnership.
1.3 "City" shall mean - The City of Omaha, a Nebraska Municipal
Corporation.
1.4 "Director" shall mean - the Planning Director.
1.5 "Subrecipient" shall mean - a public or private non-profit agency,
authority or organization receiving HOME funds to undertake
eligible activities. In this Agreement, the subrecipient is OMLP.
1.6 "Recipient" shall mean - the City of Omaha.
1.7 "HOME" shall mean - the program conducted under the provisions of
the Cranston-Gonzalez National Affordable Housing Act, Title II,
Subtitle A - HOME Investment Partnerships (P.L. 101-625) and the
Code of Federal Regulations 24 CFR Part 92.
1.8 "HOME Funds" shall mean - that portion of the Home Investment
Partnerships Program awarded to the. City as may be available to
loan during program years 1993 and 1994 for professional services,
Construction Work involving the property as described in Section
1.11 of this Agreement in an amount not to exceed $754,000, subject
to the terms, conditions and requirements of said Loan.
1.9 "KENO/Lottery Funds" shall mean - Funds from the City of Omaha
General Fund No. 120, Agency No. 110, Organization No. 1106 in an
amount not to exceed $226,000.
1.10 "Repayable Loan" shall mean - a HOME Investment Partnerships
Program Repayable Loan in the amount of $980,000 made subject to
the terms, conditions and provisions of the loan agreement under
which said loan is made, which shall provide, inter alia, that same
shall be repayable in forty-eight years from and after December 1,
1995, at the annual interest rate of 1%, simple interest, with
interest accruing from and after December 1, 1995, and annual
accruals of $9,800 each accumulating each December 1 thereafter,
through and including December 1, 2013. Such interest and
subsequent annual accruals of $9,800 are to be deferred for
eighteen years and added to the principal amount of the loan
beginning December 1, 1995 through and including December 1, 2013.
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1
Beginning January 1, 2014, the loan balance of $1,156,400 will
begin amortizing over the remaining thirty-year term (360 months)
at the rate of 1% per annum with monthly payments of $3,719.44.
The principal balance plus accrued interest shall become due and
payable upon sale or transfer of ownership of the property. The
loan may be used only for the purposes described herein.
1.11 "Property" shall mean - the site, at 36th and Orchard Streets,
Omaha, Nebraska, legally described as: Lot 1, Burlington Square
Addition Replat 1, City of Omaha as surveyed, platted and recorded
in Douglas County, Nebraska.
1.12 "Construction Contract" shall mean - the ensuing contract for all
work to be performed upon the subject property, more specifically,
vacant lots as described in Section 1.11.
1.13 "Construction Work" shall mean - the acquisition of the site at
36th and Orchard Streets and all work or services provided for in
professional services or construction contracts and as may be
required hereunder.
1.14 "Progress Payment" shall mean - that portion of the total
construction contract paid in one or more disbursements, based upon
the value of the construction, administrative or professional
services work completed at the time the payment request is made.
1.15 "Mortgage Loan Rider" shall mean - the Rider identified as Attach-
ment 1, herein, attached to and made a part of this agreement, the
mortgage or deed of trust, the promissory note or other document(s)
evidencing, securing and governing the "Repayable Loan" as herein
above defined.
Section 2. Duties and Conditions of City Financing
2.1 Subject to and conditioned upon actual receipt of same, the City
agrees to make available to OMPL $754,000 in funds received for use
in the program year commencing January 1, 1993 and January 1, 1994
under the HOME program as hereinabove described and defined, and
$226,000 in KENO/Lottery funds. Funding shall be subject to the
terms and conditions specified and contained in this Agreement.
The City will secure its Repayable Loan with a second deed of trust
in an amount not to exceed $980,000. Further, funding, which shall
be in an amount not to exceed $980,000 shall be used only for the
following purposes:
2.1.1 Architectural, engineering, legal, financial and administra-
tive services for the preparation of all design and construc-
tion documents and construction supervision necessary for
site preparation, the installation of public improvements,
and construction of forty-eight (48) residential units (of
which twenty-four (24) units will be designed to house
persons with a hearing impairment and three (3) units shall
be handicapped accessible) within the 36th and Orchard
Streets Area. All contracts for services and construction
documents pursuant to this Section must be approved by the
Planning Director, prior to funding of such contracts.
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2.1.2 Partial construction financing for the forty-eight
residential units as follows:
A. All disbursements for construction financing shall be
based on the disbursement schedule contained in Exhibit
B to this Agreement.
2.1.3 City funding pursuant to this Section shall be contingent
upon receipt of and subject to availability of HOME
Investment Partnerships Grant funds in 1993 and 1994 in
amounts adequate to meet any contractual obligations in
force upon the date of execution of this Agreement as well
as this proposed obligation. Should adequate funding not be
available, the City shall notify OMLP as soon as reasonably
possible. At this time, the responsibilities of the OMLP
under Section 3 of this Agreement shall be released.
2.1.4 Funds paying for contractual work shall be payable in
accordance with the construction payment schedule as
described in Exhibit B. In accordance with the Director's
prior approval, Performance Bonds and insurance, required by
the Director, shall name the City as an additional insured.
2.1.5 The OMLP may not request disbursement of funds under this
Agreement until the funds are needed for payment of eligible
costs. The amount of each request must be limited to the
actual amount needed.
2.2 The City shall review and approve all plans for public improve-
ments, site preparation and multi-family residential construction
and perform interim and final inspections on each construction
phase or completed residential unit.
2.3 The City shall review and monitor the quarterly reports that
identify the progress/accomplishments of the OMLP, on the
activities included in this Agreement and on contracts entered into
with third parties pursuant thereto.
2.4 After completion of construction, the property must comply with all
appropriate City codes and ordinances, and with Federal Section 8
Housing Quality Standards for the duration of this Agreement.
2.4.1 The City shall perform inspections of the property to ensure
compliance with Section 2.4.
2.5 In no event shall the City assume any obligation to make any or all
of the above-referred funding available, nor shall the City incur
any liability hereunder, unless and until the OMLP has submitted
for and received the approval of the Director of all of the
following:
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2.5.1 evidence that OMLP funding is available as required by
Section 3.5 herein; and,
2.5.2 duly executed contracts for construction work; and,
2.5.3 Performance and Labor Materials Bonds from all subcontractors
and/or Irrevocable of Letters Credit in force for one year
following the completion of the Construction Work from the
Owner/General Contractor and all Subcontractors in an
aggregate amount of the contract bid. The Letters of Credit
and/or Bonds shall be in favor of the City and shall be
submitted for review and approval by the Director. The City
reserves the right to reject the Letters of Credit and
choice of surety for the Bonds.
2.6 In no event shall the City assume any obligation to make or •
continue to make any or all of the above-referenced funding
available, nor shall the City incur any liability hereunder, unless
and until OMLP has timely and fully complied with its duties and
obligations arising hereunder.
2.7 In the event that all of the terms and conditions for funding as
set forth hereinabove have been fully complied with, the City does
hereby agree to make only those progress payments as may be
authorized to be paid by the Director or his designate upon
receipt, verification and approval of an American Institute of
Architects Document G702 "Application and Certificate for Payment",
provided that no payments shall be made for any acquisition, work,
labor, material or expense incurred which the Director, in his sole
discretion, deems to be:
2.7.1 unacceptable or substandard; or,
2.7.2 not in accordance with this Agreement or the rehabilitation
contract as approved; or,
2.7.3 not in conformance with the applicable state, federal and
local laws, including, but not limited to, the building,
plumbing and/or electrical codes; or,
2.7.4 not in conformance , with the working drawings and/or
specifications as approved.
Further, any such construction related payments or construction
progress payments shall be made from, and be attributable to, each •
funding source in proportion to the approximate percentage that
same bears to the total amount of funding hereunder, which, for the
purpose of this section, are hereby established in Exhibit B of
this Agreement.
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2.8 The City agrees to provide OMLP funds, as described in Section 2.1
herein, to carry out the services described herein for a period of
twelve (12) months from the time of favorable consideration by the
City Council.
2.9 The Repayable Loan shall be a non-recourse loan; therefore, in the
event of a default, the City shall rely solely upon the property
which is secured by the deed of trust which is the security for the
promissory note and will not initiate or participate in any claim
or proceedings against the Maker of the promissory note or its
Partners (or the partners, officers, directors, or shareholders of
any partner) for payment of any sum due under the promissory note
or any other sum due under the deed of trust.
Section 3. Duties and Responsibilities of the Orchard Manor Limited
Partnership
3.1 The OMLP agrees to develop platted vacant lots in the 36th and
Orchard Streets Area in conformance with the requirements contained
herein.
3.2 OMLP shall be responsible for the security and maintenance of
Property throughout the term the Repayable Loan is outstanding.
3.3 OMLP shall contract for architectural and engineering services for
the preparation of all design and construction documents, cost
estimates, and construction supervision necessary for the con-
struction of forty-eight (48) residential units of which
twenty-four (24) units shall be designed to house families with a
hearing impairment and three (3) units shall be handicapped
accessible. As specified in Section 2.1, OMLP shall obtain the
approval of the Director for all contracts, plans, and plats
pursuant to this Section.
3.4 OMLP shall contract for and complete site preparation and construc-
tion of public improvements as specified in Section 2.1. OMLP
shall obtain the approval of the Director for all construction
contracts, prior to the start of such contracts.
3.5 The OMLP shall secure private funds as described in Exhibit B. The
OMLP shall certify the availability of these funds to the Director
in a manner designated by him.
3.6 The OMLP does hereby certify, contract and agree that any and all
funding obtained by it or made available to it hereunder, shall be
used solely and exclusively for the express purpose of developing
the Property in strict compliance with this Agreement and the
construction contracts as approved, as well as the drawings and
other specifications as approved.
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3.7 The OMLP shall submit to the Director, for his review and approval,
all working drawings, plans and specifications necessary or
incidental to this project. In addition, the OMLP shall submit
duly authorized construction contracts for the Director's review
and approval. The Director reserves the right to reject, modify or
amend any or all of the foregoing. Upon approval, no changes or
amendments may be made to any of the foregoing without the written
approval of the Director. In no event shall the City become
obligated to make any payments or release loan proceeds for any
work performed, materials furnished, expenses incurred, or any
other expenditure of whatsoever kind or nature unless same was
expressly included in one or more of the above-mentioned documents
as approved.
3.8 The OMLP shall not commence any work hereunder until such time as
it has received a written notice to proceed as issued by the
Director. Any work performed prior to the issuance of such notice
shall be the sole responsibility of the OMLP.
3.9 The OMLP agrees to use no lead-based paint in the performance of
this Agreement, including the performance of any subcontractor.
"Lead-based Paint" means any paint containing more than six
one-hundredths of one (1) per centum of lead by weight (calculated
as lead metal) in the total nonvolatile content of the paint, or
the equivalent measure of lead in the dried film of paint already
applied. The OMLP further agrees to abide by all Federal require-
ments regarding lead-based paint poison prevention.
3.10 The OMLP agrees that 100% of the multi-family housing units shall
be occupied by low-income families whose annual income does not
exceed 60% of the "Median Income by Family Size" as published by
HUD, and as further updated and revised by H.U.D. to reflect the
current or most recent income level statistics, a copy of the
relevant portion of which is attached hereto, marked as Exhibit C
and incorporated herein by this reference.
3.10.1 In addition to the above, the OMLP agrees that 20% of the
multi-family housing units, or ten (10) units, shall be
occupied by very low-income families whose annual income
does not exceed 50% of the "Median Income by Family Size" as
published by HUD, and as further updated and revised by HUD
to reflect the current or most recent income level
statistics, Exhibit C.
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3.10.2 In no event shall eligible families be charged rental
amounts in excess of the regulatory limits as specified in
the HOME Regulations, 24 CFR Part 92, Subpart F, Section
92.252, for the leasing of the multi-family rental housing
units constructed with the HOME funds; 24 CFR Part 92,
Subpart F, is attached hereto as Exhibit D. (Also see
Section 6.11 Other Program Requirements of this Agreement.)
3.10.3 The OMLP agrees that the occupancy and affordability
requirements of Sections 3.10, 3.10.1, and 3.10.2 will
remain in effect for a term not less than twenty (20) years
beginning after project completion without regard to
transfer of ownership of the property.
3.10.4 If, through breach of this Agreement, the OMLP fails to
maintain the occupancy and affordability restrictions
enumerated in Sections 3.10, 3.10.1, 3.10.2 and 3.10.3 of
this Agreement, all HOME and KENO/Lottery funds previously
provided to the OMLP through fulfillment of this Agreement
shall promptly be returned to the City of Omaha.
3.11 The OMLP shall maintain the Property in a safe and sanitary
condition to the extent reasonably possible during the construction
and management phases of the project.
3.12 The OMLP shall ensure that all work performed and the construction,
as completed, is in conformance with all state, federal, and local
laws, ordinances, regulations and codes, including, but not limited
to, Section 8 Housing Quality Standards (HQS) as established by
HUD. The Director shall assist OMLP, in the same manner the
Director provides technical assistance to other developers, during
the construction phase to ensure compliance with such requirements.
3.13 The OMLP shall obtain a certificate from each contractor or sub-
contractor to be used on this project to the effect that such
contractor or subcontractor has not been disbarred or disqualified
by the U.S. Department of Housing and Urban Development. The
Director shall approve all contractors and subcontractors prior to
being hired by OMLP.
3.14 The OMLP shall ensure that property insurance, all taxes, regular
and special, are paid up-to-date as of the scheduled time for loan
closing and remain current throughout the term of the Repayable
Loan.
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3.15 OMLP shall submit to the Director, for his review and approval, a
minority and women business participation plan which discusses
economic development and employment opportunities. The OMLP shall
make best efforts to ensure that construction services, contracts
and employment opportunities are affirmatively marketed to women
and members of minority groups.
3.16 The OMLP shall employ affirmative marketing procedures in the
advertising and marketing of completed residential units. In
marketing, the OMLP shall also confirm to the nondiscrimination
provisions as hereinafter set forth. Any such advertisements shall
receive the approval of the Director prior to their release.
3.17 The OMLP shall maintain such records and accounts, including
property, personnel and financial records, as are deemed necessary
by the City to assure a proper accounting for all expenses. The
Comptroller General of the United States, or any of their duly
authorized representatives, or any duly authorized representatives
of the City of Omaha, as approved by the Planning Director, shall
have access to any books, documents, papers, records and accounts
of the OMLP, Contractor or Subcontractor which are directly
pertinent to this project for the purpose of making audit,
examination, excerpts and transcriptions. Such records and
accounts shall be retained for five years from the contract period
completion. Any contract entered into by the OMLP with any
Contractor or Subcontractor shall include this Section to ensure
said access.
3.18 The OMLP shall submit to the Director a certified audit of all
construction costs including developer and contractor costs. This
audit shall be performed by a duly qualified professional, whom
shall first be approved by the Director in writing. This audit
shall be submitted to the Director for review and approval. The
final amount of assistance will be based on the audited costs. If
the final project cost is less than the estimated cost, the City
and the OMLP will share the cost savings proportionately.
3.19 OMLP shall submit a quarterly progress report to the City of Omaha,
Director of Planning. The progress report will delineate OMLP,
staff accomplishments for the previous 90-day period.
3.20 OMLP shall ensure that the residential development conforms to City
housing and zoning ordinances. OMLP shall carry out all
construction in an efficient manner.
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3.21 The OMLP shall comply with and ensure that applicable bid
documents, contracts, and subcontracts for site preparation and
public improvements contain the Federal labor standards provisions
• and the applicable Department of Labor wage determination and that
no contractor is ineligible for Federally assisted work. The wage
determination may be modified to keep it current. All actions
modifying a general wage determination apply, unless notice of such
action is published less than 10 days before contract award. The
City will send these modifications to the OMLP (Exhibit E).
3.22 OMLP specifically hereby states, agrees and certifies that it is
familiar with the limited purpose set forth in the Federal laws,
rules and regulations, and in the laws of the State of Nebraska for
which personal information requested may be used, and that the
information received will be used solely for those limited purposes
and not to harass, degrade or humiliate any person. The
information released shall be used for the limited purpose stated,
and OMLP further agrees to indemnify and hold harmless the City of
Omaha for any liability arising out of the improper use of the
information provided.
3.23 OMLP shall maintain fiscal integrity of the program, which include
all financial and narrative reports required by the City of Omaha,
and the U.S. Department of Housing and Urban Development.
3.24 OMLP shall ensure that any Program Income received will be returned
to the City of Omaha within thirty (30) days of receipt. In the
event the City shall cease to fund the redevelopment of the
Property, OMLP shall have no further responsibility under the terms
of the Agreement except to return unobligated HOME or KENO/Lottery
funds, if any, provided to OMLP under this Agreement.
3.25 OMLP shall execute a note, deed of trust, and Mortgage Loan Rider
for the benefit of the City of Omaha securing the Repayable Loan.
3.26 OMLP shall submit a Minority Business Enterprise Plan for approval
by the Planning Department (Exhibit F).
Section 4. Terms of the Agreement
This Agreement shall be effective for a period of Twenty (20) years from
the time of favorable consideration by the City Council.
Section 5. Mutual Agreements
OMLP agrees and the City states, that the City:
5.1 Is not acting as the OMLP's architect or engineer.
5.2 Makes no warranties, express or implied, as to the construction
work.
•
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5.3 Owes no duty to the OMLP or any other person that shall arise
because of any inspection of the redevelopment site by the City's
agents or employees.
5.4 May inspect the redevelopment site at any reasonable time,
including a final inspection to certify completion prior to
disbursement of any funding.
5.5 Shall be held harmless by the OMLP for all injury and damages
arising by virtue of this Agreement.
Section 6. Provisions of the Agreement
6.1 Equal Employment Opportunity/Section 3 Clause/Affirmative Action
Plan. Attached hereto as Exhibit G and made a part hereof by
reference are the equal employment provisions of this Agreement.
6.2 Non-discrimination. The OMLP shall not, in the performance of this
contract, discriminate or permit discrimination in violation of
federal or state laws or local ordinances because of race, color,
sex, age, political or religious opinions, affiliations, national
origin, familial status, disability or handicap.
6.3 Captions. Captions used in this contract are for convenience and
are not used in the construction of this contract.
6.4 Applicable Law. Parties to this contract shall conform with all
existing and applicable city ordinances, resolutions, state laws,
federal laws, and all existing and applicable rules and
regulations. Nebraska law will govern the terms and the
performance under this contract.
6.5 Interest of the City. Pursuant to Section 8.05 of the Home Rule
Charter, no elected official or any officer or employer of the City
shall have a financial interest, direct or indirect, in any City
contract. A violation of this Section with the knowledge of the
person or corporation contracting with the City shall render the
contract voidable by the Mayor or the City Council.
6.6 Merger. This Agreement shall not be merged into any other oral or
written Agreement, lease or deed of any type.
6.7 Modification. This Agreement contains the entire agreement of the
parties. No representations were made or relied upon by either
party other than those that are expressly set forth herein. No
agent, employee or other representative of either party is
empowered to alter any of the terms herein unless done in writing
and signed by an authorized officer of the respective parties,
pursuant to Section 10-142 of the Omaha Municipal Code.
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6.8 Assignment. OMLP may not assign its rights under this Agreement
without the express prior written consent of the City.
6.9 Strict Compliance. All provisions of this Agreement and each and
every document that shall be attached shall be strictly complied
with as written, and no substitution or change shall be made except
Upon written direction from authorized representatives of the
parties, pursuant to Section 10-142 of the Omaha Municipal Code.
6.10 Termination. This Agreement may also be suspended or terminated in
accordance with 24 CFR 85.43, Enforcement or 24 CFR 85.44,
Termination for Convenience (Exhibit H). Upon termination of this
Agreement, all funds and interest in any account hereunder become
the property of the City and shall be returned to the City of Omaha.
6.11 Other Program Requirements. The OMLP shall be required to carry
out each activity of this Agreement in compliance with all Federal
laws and regulations described in Subparts A, E, F and H of the
HOME Investment Partnerships Program; Interim Rule (24 CFR Part 92)
(Exhibit D).
6.12 Reversion of Assets. Upon the expiration of this Agreement, the
OMLP shall transfer to the City of Omaha any HOME or KENO/Lottery
funds on hand at the time of expiration and not required for the
purpose of this Agreement.
6.13 OMLP shall indemnify and hold the City harmless from and against:
(1) any and all claims arising from contracts between OMLP and
third parties made to effectuate the purposes of this Agreement;
and, (2) any and all claims, liabilities or damages arising from
the preparation or presentation of any of the work covered by this
Agreement.
6.14 If through any cause, OMLP shall fail to fulfill in a timely and
proper manner any obligations under this Agreement, or violate any
of the covenants, representations or agreements hereof, the City
may upon written notice terminate this Agreement or such parts
thereof as to this Agreement, and may hold OMLP liable for any
damages caused to the City by reason of such default and
termination.
6.15 Any provision of this Agreement which is prohibited or unenforce-
able in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition of enforceability
without invalidating the remaining provisions hereof or affecting
the validity or enforceability of such provision in any other
jurisdiction.
6.16 This Agreement shall be a contract made under and governed by the
laws of the State of Nebraska.
•
- 13 -
6.17 Disclosure of Lobbying. OMLP shall certify and disclose, to the
best of its knowledge and belief, that:
(a) No Federal appropriated funds have been paid or will be paid,
by or on behalf of OMLP, to any person for influencing or
attempting to influence an officer or employee of Congress,
or an employee of a Member of Congress in connection with the
awarding of any Federal contract, the making of any Federal
grant, the making of any Federal loan, the entering into of
any cooperative agreement, and the extension, continuation,
renewal, amendment or modification of any Federal contract,
grant, loan, or cooperative agreement.
(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, the
OMLP shall complete and submit Standard Form-LLL, "Disclosure
Form to Report Lobbying", in accordance with its instructions.
(c) The language of this certification be included in the award
documents for all subawards at all tiers (including
subcontracts, subgrants, and contracts under grants, loans,
and cooperative agreements) and that all subrecipients shall
certify and disclose accordingly.
Section 7. Authorized Representative
In further consideration of the mutual covenants herein contained, the
parties hereto expressly agree that for the purpose of notice, including legal
service of process, during the term of this Agreement and for the period of
any applicable statute or limitations thereafter, the following named
individuals shall be authorized representatives of the parties:
(1) City of Omaha:
Director, Planning Department
Omaha/Douglas Civic Center
1819 Farnam Street
Omaha, Nebraska 68183
(2) Developer:
Orchard Manor Limited Partnership
Orchard Manor Corporation, General Partner
6655 Redick Avenue
Omaha, Nebraska 68152
- 14, -
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date indicated below:
ATTEST: CITY OF , a unicip. Corporation
Cit ri0erk of City of Omaha the C y of a aha
'ESS: ORCHARD MANOR LIMITED PARTNERSHIP, a
Nebraska Limited Partnership
BY:/ �,''/, a�' 7 i
0 chard Man9'r Corporation, a Non-
Profit Corporation, General Partner
APPROVED AS TO FORM:
City • to ley
n ' ACKNOWLEDGEMENT
STATE OF `n/ 4/1495"- )
) SS.
COUNTY OF 09 (4G L`1Y )
The foregoing Agreement was acknowledged before me this / 7J day
of AZA e- LA.f/- , 1994, by / p,7,.►c y i9_ ( / sd (Jrer, c/c3 1--.
cyr u c Gs o vG /4 a N Q Ca c ,p a r ¢�"o .® Notary Public
8067v 4:1BALNOTARY.gteof Nebraska
CHARLES P.FIRE
My Comm.Exp.Aug.1,1997
)114111P-
- 15 -
SCHEDULE OF EXHIBITS
Agreement
Exhibit Location Description
A 1.1 OMLP Agreement, Orchard Manor Corporation
Articles of Incorporation and Corporate
Resolution
B 2.1.4, 2.7 Project Pro-Forma, Development Schedule
2.8, 3.5 and Development Plan
C 3.10 Median Income by Family Size
D 3.10.2, 6.11 Other Program Requirements - Subparts A,
E, F and H, 24 CFR Part 92
E 3.21 Davis-Bacon Wage Determination
F 3.26 Minority Business Enterprise Plan
G 6.1 Equal Employment Opportunity and Section 3
Clause
H 6.10 Termination - CFR 85.43 and CFR 85.44
8067v
- 16 -
1
• 93V2.04a
NE--/NYEF/CEF 1993 Model Form-7/''`4
Tab 4a ATTACHMENT 1
MORTGAGE LOAN RIDER
This Rider is attached to and made a part of the promissory
note, the mortgage or trust deed, and loan agreement or other
document(s) evidencing, securing, and governing a loan in the
amount of Dollars
($ ) (the "Loan") made by
("Lender") to ("Borrower") for the
construction or rehabilitation of
(the "Project") . The form of this Rider has
been designed for use whether Borrower is a limited partnership, a
land trust of which a limited partnership is the beneficiary, or
otherwise. Accordingly, the limited partnership developing the
Project, whether or not identified as Borrower, is sometimes
referred to herein as the "Partnership. " The Articles of Limited
Partnership forming or continuing the Partnership are referred to
herein as the "Partnership Agreement. "
The parties hereto agree that the following covenant`s, terms,
and conditions shall be part of and shall modify or supplement each
of the documents evidencing, securing, or governing the
disbursement of the Loan (the "Loan Documents") , and that in the
event of any inconsistency or conflict between the covenants,
terms, and conditions of the Loan Documents and this Rider, the
following covenants, terms, and conditions shall control and
prevail:
1. Nonrecourse Obligation. The Loan is a nonrecourse
obligation of Borrower. Neither Borrower nor any of its general
and limited partners (or, if Borrower is not the Partnership, the
general and limited partners of the Partnership) , nor any other
party shall have any personal liability for repayment of the Loan.
The sole recourse of Lender under the Loan Documents for repayment
of the Loan shall be the exercise of its rights against the Project
and related security thereunder.
2. General Partner Change. The withdrawal, removal, and/or
replacement of a general partner of the Partnership pursuant to the
terms of the Partnership Agreement shall not constitute a default
under any of the Loan Documents, and any such actions shall not
accelerate the maturity of the Loan, provided that any required
substitute general partner is reasonably acceptable to Lender and
is selected with reasonable promptness.
3. Monetary Default. If a monetary event of default occurs
under the terms of any of the Loan Documents, prior to exercising
any remedies thereunder Lender shall give Borrower and each of the
general and limited partners of the Partnership, as identified in
the Partnership Agreement, simultaneous written notice of such
default. Borrower shall have a period of seven (7) days after such
notice is given within which to cure the default prior to exercise
of remedies by Lender under the Loan Documents, or such longer
period of time as may be specified in the Loan Documents.
4. No
n-Monetary Default. If a non-monetary event of default
occurs under the terms of any of the Loan Documents, prior to
exercising any remedies thereunder Lender shall give Borrower and
each of the general and limited partners of the Partnership, as
identified in the Partnership Agreement, simultaneous written
notice of such default. If the default is reasonably capable of
being cured within thirty (30) days, Borrower shall have such
period to effect a cure prior to exercise of remedies by Lender
under the Loan Documents, or such longer period of time as may be
specified in the Loan Documents. If the default is such that it is
not reasonably capable of being cured within thirty (30) days or
such longer period if so specified, and if Borrower (a) initiates
corrective action within said period, and (b) diligently,
continually, and in good faith works to effect a cure as soon as
possible, then Borrower shall have such additional time as is
reasonably necessary to cure the default prior to exercise of any
remedies by Lender. If Borrower fails to take corrective action or
to cure the default within a reasonable time, Lender shall give
Borrower and each of the general and limited partners,. of the
Partnership written notice thereof, whereupon the limited partner
may remove and replace the general partner with a substitute
general partner who shall effect a cure within a reasonable time
thereafter in accordance with the foregoing provisions. In no
event shall Lender be precluded from exercising remedies if its
security becomes or is about to become materially jeopardized by
any failure to cure a default or the default is not cured within
one hundred eighty (180) days after the first notice of default is
given, or such longer period of time as may be specified in the
Loan Documents.
5. Casualty, Condemnation, Etc. In the event of any fire or
other casualty to the Project or eminent domain proceedings
resulting in condemnation of the Project or any part thereof,
Borrower shall have the right to rebuild the Project, and to use
all available insurance or condemnation proceeds therefor, provided
that (a) such proceeds are sufficient to keep the Loan in balance
and rebuild the Project in a manner that provides adequate security
to Lender for repayment of the Loan or if such proceeds are
insufficient then Borrower shall have funded any deficiency, (b)
Lender shall have the right to approve plans and specifications for
any major rebuilding and the right to approve disbursements of
insurance or condemnation proceeds for rebuilding under a
construction escrow or similar arrangement, and (c) no material
default then exists under the Loan Documents. If the casualty or
condemnation affects only part of the Project and total rebuilding
is infeasible, then proceeds may be used for partial rebuilding and
partial repayment of the Loan in a manner that provides adequate
security to Lender for repayment of the remaining balance of the
Loan.
6. Force Maieure. There shall be no default for
construction or rehabilitation delays beyond the reasonable control
-2-
of Borrower, provided that such delays do not exceed one hundred
eighty (180) days, or such longer period of time as may be
specified in the Loan Documents.
7. Purchase Rights. . The execution and delivery of the
purchase option and right of first refusal agreement described in
the Limited Partnership Agreement shall not constitute a default
under the Loan Documents or accelerate the maturity of the Loan
thereunder. Any requisite consent of Lender to (a) the exercise of
said purchase option and right of first refusal agreement by the
project sponsor identified therein, and to (b) the assumption
without penalty of Loan obligations by the project sponsor and the
release of Borrower from such obligations, shall not be
unreasonably withheld. Subject to any such consent requirement,
the exercise of rights under such agreement shall not constitute a
default or accelerate maturity of the Loan.
. [For below-market interest rate loans: ] Loan Assumption.
If the p se option and right of first refusal agre mexz't"�-
described in the i ' Partnership Agreement is no cised and
the Project is sold subjec w-income ' g use restrictions
as contained in an existing re eement or other recorded
covenant, any requisi ent of lender to ale, and to the
assumption • penalty of loan obligations by the p er and
t ease of Borrower from such obligations, shall not
unreasonably withheld.
othq. Lender Approvals, Etc. In any approval, consent, or
er determination by Lender required under any of the Loan
Documents, Lender shall act reasonably and in good faith.
(continued on next page)
-3-
• , r
In Witness Whereof, the undersigned have caused this
Rider to be executed this day of , 19_
Borrower: Lender:
a(n) limited a(n)
partnership
By: By:
a(n) corporation Its:
its general partner
By: ZYZ/) Attest:
I1?-e.J;Ff.4e
: p ,�G/'
By:
Its:
Attest:
By: ( - 4!/1.)Le.,ti <=1,,a4(.,
s:
APPROVED :.S TO FORM:
.-401101(4-..; „,„"2„„-
a ► ITY f/RNEY
-4 q10;)
-
• EXHIBIT "A"
JUN 2 1994 STATE OF PdE.BRAbi.:A C cI
., OFFICES
;r CRETAIZYit;
Received and filed for
record and rec. rded mt .-xi,
film roll�''--r_iU at Page'
%%A.0 9, e .4.0, ,)
Secretary To-- .S ate
CERTIFICATE OF ORCHARD MANOR 1'`' Ti fi
" '
LIMITED PARTNERSHIP
A Limited Partnership
The undersigned, being desirous of forming a limited partnership,
pursuant to provisions of the Nebraska Uniform Limited Partnership Act, do
hereby make and severally sign and swear to the following certificate for such
purpose:
I
NAME
The name under which the partnership is to be conducted is "Orchard
Manor Limited Partnership".
II
PURPOSES
The general purposes of the business are to acquire a fee simple interest
in certain land in the vicinity of 36th Avenue and Orchard Avenue in the City of
Omaha, and to construct certain residential buildings thereon (the "Project"); to
finance such acquisition and construction through loans and other means, and to
operate, manage, lease and otherwise deal with the Project as a real estate
development consisting of, or including in significant part, low-income rental
housing. The purposes of the Partnership shall further include the provision of
decent, safe and sanitary housing affordable to low-income households and
qualifying for low-income housing tax benefits. The Partnership shall have all
powers necessary to accomplish such purposes.
III
OFFICE AND AGENT
The location of the principal place of business of the Partnership shall be
6655 Redick Avenue, County of Douglas, in the City of Omaha, in the State of
Nebraska, or at such other place as the General Partner may determine from
time to time. The name and address of the agent for service of process shall be
Charles P. Fike, 700 First National Plaza, 11404 West Dodge Road, Omaha,
Nebraska 68154.
P Y
0
•
IV
GENERAL AND LIMITED PARTNERS
The name and address of the General Partner is
Orchard Manor Corporation
6655 Redick Avenue
Omaha, Nebraska 68104
Attn: Rodney A. Conser, President
The name and address of the Initial Limited Partner is
Michael B. Maroney
6655 Redick Avenue
Omaha, Nebraska 68104
V
TERM
The term of the partnership shall commence May 18, 1994, and shall
continue for a period of fifty (50) years, unless sooner terminated by action of the
Partners, or as otherwise provided in the Partnership Agreement.
Witness our signatures on this/✓( day of May, 1994.
ORCHARD MANOR CORPORATION,
General Partner,
By:
Rodney. Conser, President
Michael B. Maroney,
Initial Limited Partner
2
STATE OF NEBRASKA )
) SS.
COUNTY OF DOUGLAS )
Before me, a Notary Public, qualified for said County, personally came
RODNEY A. CONSER, President of Orchard Manor Corporation, a Nebraska
corporation, to me personally known to be the President and the identical person
whose name is affixed to the above instrument, and acknowledged the execution
thereof to be his voluntary act and deed and the voluntary act and deed of said
corporation.
WITNESS my hand and notarial seal on the f/IA day of May, 1994.
Notary Public
Nebr
STATE OF N E B RAS KA GENE�AICHARL�SSWAI P of IKE�ka
) SS. 11y Cam Exp.Aus.1 11897
COUNTY OF DOUGLAS )
Before me, a Notary Public, qualified for said County, personally came
MICHAEL B. MARONEY, known to me to be the identical person who signed
the foregoing instrument, and acknowledged the execution thereof to be his
voluntary act and deed.
WITNESS my hand and notarial seal on the Pik' day of May, 1994.
Notary Public
GENERAL NOTARYState of Nebraska
CHARLES P.FIKE
r ` My Comm.Exp.Aug.1,1997
3
PARTNERSHIP AGREEMENT
ORCHARD MANOR LIMITED PARTNERSHIP
(A Nebraska Limited Partnership)
•
ARTICLE IX ADMINISTRATIVE PROVISIONS
Section 9.1 Management of Partnership
Section 9.2 Rights, Duties and Powers of
General Partner
Section 9.3 Third Party Investigations of
Partner's Authority
Section 9.4 Liability of General Partner for
Acts and Omissions;
Indemnification
ARTICLE X DEATH, WITHDRAWAL, BANKRUPTCY OR DISSOLUTION
OF A PARTNER
Section 10.1 General Partner
Section 10.2 Initial Limited Partner
ARTICLE XI MISCELLANEOUS
Section 11.1 Construction
Section 11.2 Notices
Section 11.3 Entire Agreement
•
•
•
•
THIS LIMITED PARTNERSHIP AGREEMENT entered into as of the 18th
day of May, 1994, by ORCHARD MANOR CORPORATION, A Nebraska
Nonprofit Corporation, of 6655 Redick Avenue, Omaha, Nebraska 68104
(hereafter, the "General Partner"), and MICHAEL B. MARONEY, of 8326 North
47th Street, Omaha, Nebraska 68152 (hereafter, the "Initial Limited Partner").
The General Partner and the Initial Limited Partner are sometimes hereafter
collectively referred to as the "Partners".
ARTICLE I
FORMATION OF PARTNERSHIP; NAME;
PRINCIPAL PLACE OF BUSINESS
1.1 Formation. The Partners hereby enter into and form a limited
partnership pursuant to the provisions of the Nebraska Uniform Limited
Partnership Act. The Partners shall forthwith execute a Limited Partnership
Certificate and cause such Certificate to be recorded as required by law.
1.2 Name. The name of the Partnership shall be Orchard Manor Limited
Partnership, and its business shall be conducted in the same name.
1.3 Principal Place of Business. The principal place of business of the
Partnership shall be 6655 Redick Avenue, Omaha, Douglas County, Nebraska
68104, and at such other localities within or without the State of Nebraska as
may be agreed upon by the Partners from time to time. The name and address
of the agent of the Partnership for service of process shall be Charles P. Fike,
700 First National Plaza, 11404 West Dodge Road, Omaha, Nebraska 68154.
ARTICLE II
BUSINESS OF PARTNERSHIP
The purposes of the Partnership are to acquire a fee simple interest in
certain land in the vicinity of 36th Avenue and Orchard Avenue in the City of
- 1 -
TABLE OF CONTENTS
CLARK PLACE LIMITED PARTNERSHIP
ARTICLE I FORMATION OF PARTNERSHIP; NAME; PRINCIPAL
PLACE OF BUSINESS
Section 1.1 Formation
Section 1.2 Name
Section 1.3 Principal Place of Business
ARTICLE II BUSINESS OF PARTNERSHIP
ARTICLE III TERM OF PARTNERSHIP
ARTICLE IV ORIGINAL CAPITAL CONTRIBUTIONS
Section 4.1 General Partner
Section 4.2 Initial Limited Partner
Section 4.3 Interest on Capital Contributions
ARTICLE V CAPITAL ACCOUNTS
Section 5.1 Separate Accounts
Section 5.2 Restoration of Deficit Balance
on Liquidation
ARTICLE VI PROFIT AND LOSS
Section 6.2 General
Section 6.2 Distributions
ARTICLE VII COMPENSATION OF GENERAL PARTNER
ARTICLE VIII ACCOUNTING; FISCAL YEAR; MISCELLANEOUS
Section 8.1 Method of Accounting
Section 8.2 Fiscal Year
Section 8.3 Annual Meeting
Section 8.4 Review of Partnership Records
Section 8.5 Bank Accounts
Omaha, and to construct certain residential buildings thereon (the "Project"); to
finance such acquisition and construction through loans and other means, and to
operate, manage, lease and otherwise deal with the Project as a real estate
development consisting of, or including in significant part, low-income rental
housing. The purposes of the Partnership shall further include the provision of
decent, safe and sanitary housing affordable to low-income households and
qualifying for low-income housing tax benefits. The Partnership shall have all
powers necessary to accomplish such purposes.
ARTICLE III
TERM OF PARTNERSHIP
The Partnership shall commence its business as of the date of this
Agreement above stated, and shall continue for a period of fifty (50) years unless
sooner terminated by action of the Partners or as provided in this Agreement.
ARTICLE IV
ORIGINAL CAPITAL CONTRIBUTIONS
4.1 General Partner. The initial capital contribution of ORCHARD
MANOR CORPORATION, the General partner, shall be One Hundred Dollars
($100.00) in cash.
4.2 Initial Limited Partner. The initial contribution of MICHAEL B.
MARONEY, the Initial Limited partner, shall be One Hundred Dollars ($100.00) in
cash.
4.3 Interest on Capital Contributions. No interest shall be paid on any
contribution of capital or any payments due the general partner.
- 2 - 0.
ARTICLE V
CAPITAL ACCOUNTS
5.1 Separate Accounts. A separate capital account shall be maintained
for each partner in accordance with the provisions of Treas. Reg. §
1.704-1(b)(2)(iv). The capital interest of each Partner shall consist of its/his
original contribution as set forth above, increased by (a) its/his additional
contributions to capital and (b) its/his share of Partnership profits transferred to
capital and decreased by (c) distributions to its/him in reduction of its/his
Partnership capital and (d) its/his share of Partnership losses.
5.2 Restoration of Deficit Balance on Liquidation. Upon liquidation of
the Partnership, the General Partner shall be required to restore any deficit
balance in its capital account. The Initial Limited Partner shall have no obligation
to restore any deficit balance in his capital account upon the liquidation of the
Partnership.
ARTICLE VI
PROFIT AND LOSS
6.1 General. The net profits and net losses of the Partnership shall be
allocated 1% to the General Partner and 99% to the Initial Limited Partner;
provided, however, that the Initial Limited Partner shall not be personally liable
for any losses of the Partnership beyond his capital interest in the Partnership.
6. 2 Distributions. "Distributable Cash" shall be distributed, in the sole
discretion of the General Partner, 1% to the General Partner and 99% to the
Limited Partner. For purposes herein, "Distributable Cash" shall mean the
excess of cash revenue from operations of the Partnership over cash
disbursements from operations, without deductions for depreciation and
amortization ,of intangibles such as organizational costs, but after a reasonable
allowance for cash reserves, for repairs, replacements, contingencies and
- 3 - ,lam'
anticipated obligations (including debt service). Distributable Cash does not
include sales proceeds.
For purposes herein, the term "Sale Proceeds" shall mean the net cash
realized by the Partnership from the sale of Partnership property after retirement
of applicable mortgage debt and all expenses related to the transaction.
Distributions of Sale Proceeds and reserves shall be made as the General
Partner and the Limited Partner shall hereafter agree.
ARTICLE VII
COMPENSATION OF GENERAL PARTNER
It is the intention of the parties that the General Partner shall receive
reasonable compensation for services rendered by it to the Partnership. The
General Partner's compensation, as agreed upon by the Partners, shall be
reviewed periodically and adjusted as required to give the General Partner fair
compensation. Said compensation shall be deducted from Partnership income,
like any other expense, in determining the net profit or net loss of the
Partnership.
ARTICLE VIII
ACCOUNTING; FISCAL YEAR
8.1 Method of Accounting. The Partnership shall keep its accounting
records and shall report for income tax purposes in accordance with the accrual
method of accounting.
8.2 Fiscal Year. The fiscal accounting period of the Partnership shall end
on December 31 of each year.
8.3 Annual Meeting. Not less than once a year, and as soon as possible
after annual completion of the books of account, a meeting of both Partners shall
be held, at which time the operating results of the Partnership shall be reviewed
and discussed.
*431- 4 -
8.4 Review of Partnership Records. At all times during the existence of
the Partnership, the General Partner shall keep, or cause to be kept, full and
accurate books of account of the Partnership. Such books of account, together
with a certified copy of the Certificate and the Agreement of Limited Partnership
and any amendments thereto, shall at all times be maintained at the principal
office of the Partnership. A Partner or its/his duly authorized representative shall
have the right to inspect and examine the books and records during reasonable
business hours provided that such inspection is made in good faith. Either
Partner shall be entitled to copies on behalf of the Partnership.
8.5 Bank Accounts. The General Partner, in the name of Partnership,
shall cause to be opened and thereafter maintain in a bank chosen by the
General Partner, a bank account or accounts, in which shall be deposited all
cash contributions of the Partners, and other Partnership income, with the funds
therein to be disbursed solely for the business of the Partnership. Withdrawals
from any Partnership bank account shall be made only upon the signature of
such person or persons as the General Partner may from time to time designate.
ARTICLE IX
ADMINISTRATIVE PROVISIONS
9.1 Management of the Partnership. The business of the Partnership
shall be under the exclusive management of the General Partner. The Limited
Partner shall not participate in the management of the business of the
Partnership.
9.2 Rights, Duties and Powers of General Partner. The General
Partner shall have all the rights and powers generally conferred by law or
necessary, advisable or consistent in connection with the management of the
Partnership business. The General Partner shall have the power on behalf of
and for the Partnership to acquire property and to lease all or any portion
thereof; to sell, assign, lease, convey or transfer for value all or any portion of the
- 5 - 430
property of the Partnership; to borrow money; to repay, in whole or in part, or to
modify or extend any mortgages affecting such property; to execute,
acknowledge, and deliver any and all instruments to effectuate the foregoing; to
contract for the erection and construction of improvements and facilities, to
employ, from time to time, persons, firms or corporation in the operation of the
Partnership business, including, without limitation, accountants and attorneys, on
such terms and for such reasonable compensation as the General Partner shall
determine; and to do all things convenient to accomplish the business of the
Partnership. The General Partner shall have the authority to make any tax
elections required or deemed desirable. By way of extension of the foregoing
and not in limitation thereof, the General Partner shall, except as otherwise
provided in this Agreement, have all the rights and powers granted by the
Uniform Limited Partnership Act of the State of Nebraska to general partners.
9.3 Third Party Investigations of Partner's Authority. No assignee or
transferee for value of all or any portion of the property of the Partnership shall
be required to investigate the General Partner's authority to sell, assign, convey,
or transfer for value or otherwise liquidate all or any portion of any interest in
such property. Any such sale, conveyance, assignment or transfer for value, if
executed by the General Partner, shall bind the Partnership.
9.4 Liability of General Partner for Acts and Omissions:
Indemnification. The General Partner shall not be liable, responsible or
accountable in damages or otherwise to any of the Partners for and the
Partnership shall indemnify and save harmless the General Partner from, any
loss or damage incurred by reasons of any act or omission performed or omitted
by it in the absence of bad faith on behalf of the partnership, provided that the
General Partner was not guilty of gross negligence or willful misconduct.
- 6 -
ARTICLE X
DEATH, WITHDRAWAL, BANKRUPTCY OR DISSOLUTION OF A
PARTNER
10.1 General Partner. Upon the withdrawal, dissolution or bankruptcy of
the General Partner, a substituted general partner may be designated by the
Limited Partner. The affairs of the Partnership shall not be wound up following
dissolution, but the business of the Partnership shall be continued by the
substituted general partner as a continuing limited partnership bound by the
terms hereof; the continuing limited partnership shall automatically, and without
further assent or act of the limited partners, succeed to all the assets of the
Partnership. If such designation does not occur within sixty (60) days after the
withdrawal, dissolution or bankruptcy of the General Partner, the Partnership
shall be dissolved and liquidated. If the Partnership is continued, it may continue
to use the then name of the Partnership. Upon the death of the Initial Limited
Partner, the Personal Representative of his estate shall have all the rights of a
Limited Partner for the sole purpose of settling the estate of such Limited
Partner, and such power as the predecessor Limited Partner possessed to
withdraw or to designate a successor as an assignee of his interest in the
Partnership, and to join with such assignee or other successor in making
application to substitute such party as a Limited Partner.
10.2 Initial Limited Partner. It is anticipated and contemplated by the
Partners that the Initial Limited Partner shall, in the near future, withdraw from or
transfer his interest in, the Partnership, and be replaced by a substitute Limited
Partner, upon such terms and conditions as may be agreed upon by and among
the General Partner, the Initial Limited Partner and the substitute Limited
Partner. It is further anticipated and contemplated by the Partners that this
Agreement of Limited Partnership shall be amended and restated at the time of
such withdrawal or transfer of the interest of the Initial Limited Partner, to reflect
the foregoing terms, conditions and agreements.
ARTICLE XI
MISCELLANEOUS
11.1 Construction. All matters pertaining to the validity, construction,
and effect of this Agreement shall be governed by the laws of the State of
Nebraska.
11.2 Notices. Any notice to be given shall be deemed to have been
properly given if in writing and if delivered personally or by certified mail, postage
prepaid, return receipt requested, to the principal office of the Partnership or
such other address as may be provided from time to time by one Partner to the
other.
11.3 Binding Nature of Agreement. This Agreement shall be binding
upon and shall inure to the benefit of the respective successors and assigns of
the parties hereto.
IN WITNESS WHEREOF, the parties have hereunto set their hands as of
the day and year first above written.
ORCHARD MANOR CORPORATION,
General Partner
By: 47,/,,,..„/
Rodney Conser, President
Michael B. Maroney
Initial Limited Partner
- s -
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
Before me, a Notary Public, qualified for said county, personally came
RODNEY A. CONSER, President of Orchard Manor Corporation, a Nebraska
corporation, to me personally known to be the President and the identical person
whose name is affixed to the above Limited Partnership Agreement, and
acknowledged the execution thereof to be his voluntary act and deed and the
voluntary act and deed of said corporation.
WITNESS my hand and notarial seal on the gaaay of May, 1994.
aaztAIi)
Notary Public v
Nebraska
STATE OF NEBRASKA t>OtARYSauof
KE
) ss. *C CHARLES
119v
COUNTY OF DOUGLAS )
Before me, a Notary Public, qualified for said county, personally came
MICHAEL B. MARONEY, known to me to be the identical person who signed the
foregoing instrument and acknowledged the execution thereof to be his voluntary
act and deed.
WITNESS my hand and notarial seal on the/f/Il day of May, 1994.
Notary Public
itaGEMFAAL MOTAHYSNto 01 Nebrasks
CHARLES P.FlKE
My Comm.Exp.Aug.1,1997
— 9 —
• •J
y �
CERTIFICATE OF TREASURER
OF
ORCHARD MANOR CORPORATION
I HEREBY CERTIFY that I am the duly elected and acting Treasurer of
ORCHARD MANOR CORPORATION, a Nebraska nonprofit corporation (the
"Corporation"), and have access to and am familiar with the records of the
Corporation.
I HEREBY FURTHER CERTIFY as follows:
1. That ORCHARD MANOR CORPORATION was incorporated under
date of May 16, 1994, and filed Articles of Incorporation with the Secretary of
State of Nebraska on May 17, 1994.
2. That on May 18, 1994, ORCHARD MANOR CORPORATION, as
General Partner, and Michael B. Maroney, as Initial Limited Partner, executed an
agreement forming Orchard Manor Limited Partnership, a Nebraska limited
partnership, and a certificate of Orchard Manor Limited Partnership was duly
filed with the Office of the Secretary of State of Nebraska on May 27, 1994.
3. That at a meeting of the Board of Directors of ORCHARD MANOR
CORPORATION held on June 21, 1994, called in compliance with all applicable
laws and the charter and bylaws of the Corporation, and a quorum being
present, the following resolutions were duly adopted by unanimous vote of all
Directors present:
RESOLVED, that the Corporation hereby ratifies and approves the
formation of Orchard Manor Limited Partnership, with the Corporation as
the General Partner, and Michael B. Maroney as the Initial Limited
Partner, and otherwise substantially in the form presented to this meeting,
and the execution thereof by Rodney A. Conser, as President and on
behalf of the Corporation, and further authorizes the execution by the
Corporation of any other documents related thereto.
RESOLVED FURTHER, that the Corporation, as General Partner
and on behalf of Orchard Manor Limited Partnership, be authorized to
enter into a contract and/or loan agreement (the "Loan Agreement") with
the City of Omaha, providing for the development by the Partnership of 48
apartment units in the vicinity of 36th and Orchard Streets in the City of
Omaha (to be known as the Orchard Manor Apartments), with the
assistance of financing and other aid from the City of Omaha, including,
without limitation, the furnishing of$980,000 in the form of a HOME
Investment Partnership Program Repayable Loan;
RESOLVED FURTHER, that Rodney A. Conser, President, or any
other officer of the Corporation, including James C. Freeman (Vice
President), Charles A. Peters (Secretary), or Charles P. Fike (Treasurer)
be authorized to execute on behalf of the Corporation and the Partnership
the Loan Agreement with the City of Omaha, as well as any other related
document or agreement requested or required by the City in connection
therewith, including, without limitation, any note, or any mortgage or deed
of trust on the Project property securing said note.
4. That none of the Resolutions or other actions adopted or taken by
the Corporation's Board of Directors conflict with the charter or bylaws of the
Corporation, nor has any of said Resolutions been in any way altered, amended,
or repealed, and the same remain in full force and effect, unrevoked and
unrescinded, as of this day.
Charles P. Fike, Treasurer
DATED: August 17, 1994.
24:10
I ' MAY 1 7 1994OF: • • -
STATE OF NEBRA«SKA.1 s
SECRETARY'S OFFICE
Received andfiled.forrecor —€
BOOK 59 AGZ g/C� cnd recor edonfilmnollNo.
,, ' a —9 at page
b ARTICLES OF INCORPORATION Q.a.w 9' ev.vvi...,,,443
C^; OF Sec tary ofSat
ORCHARD MANOR CORPORATION lye4 f _`,�
The undersigned citizens of the State of Nebraska, acting as incorporators
of a corporation under the Nebraska Nonprofit Corporation Act, adopt the
following Articles of Incorporation for such corporation:
ARTICLE I
NAME
The name of the corporation is Orchard Manor Corporation.
ARTICLE II 4
DURATION
The corporation shall have perpetual existence.
ARTICLE III
MEMBERS
The corporation shall have no members.
ARTICLE IV
PURPOSES
The corporation is organized exclusively for the purposes of acquisition,
development, financing, construction and management of a low-income housing
project in the vicinity of 36th & Orchard Avenue in the City of Omaha, Nebraska,
and any lawful activity appropriate or otherwise related to the accomplishment of
such purposes, including, without limitation, the acting as a general partner in a
limited partnership formed for the foregoing purposes.
ARTICLE V
PROVISIONS FOR THE REGULATION OF
INTERNAL AFFAIRS AND
DISTRIBUTION OF ASSETS
Provisions for the regulation of the internal affairs of the corporation,
including provisions for the distribution of assets on dissolution or final
liquidation, if any, shall be as set forth in the bylaws of the corporation
, 6) (P
47 1/f/tit
rlo
fti/J.
MAY 1 7 199 .
' r i. STATE OF NEBRA,SKA
t SS
SECRETARY'S OFFICE r
Received ndfiledfor recort ..�
BOOK --
AGE / And rec ed on filsnroll No.
ya —9 .atpageP�'
ARTICLES OF INCORPORATION 9.
fn3 OF Seca,tarp,of$S;at••
ORCHARD MANOR CORPORATION 15PG
The undersigned citizens of the State of Nebraska, acting as incorporators
of a corporation under the Nebraska Nonprofit Corporation Act, adopt the
following Articles of Incorporation for such corporation:
ARTICLE I
NAME
The name of the corporation is Orchard Manor Corporation.
ARTICLE II
DURATION
The corporation shall have perpetual existence.
ARTICLE III
MEMBERS
The corporation shall have no members.
ARTICLE IV
PURPOSES
The corporation is organized exclusively for the purposes of acquisition,
development, financing, construction and management of a low-income housing
project in the vicinity of 36th & Orchard Avenue in the City of Omaha, Nebraska,
and any lawful activity appropriate or otherwise related to the accomplishment of
such purposes, including, without limitation, the acting as a general partner in a
limited partnership formed for the foregoing purposes.
ARTICLE V
PROVISIONS FOR THE REGULATION OF
INTERNAL AFFAIRS AND
DISTRIBUTION OF ASSETS
Provisions for the regulation of the internal affairs of the corporation,
including provisions for the distribution of assets on dissolution or final
liquidation, if any, shall be as set forth in the bylaws of the corporation.
A
•
•
BooK.,I 22 AGF. 3 O
ARTICLE VI
INITIAL REGISTERED OFFICE AND
INITIAL REGISTERED AGENT
The street address of the initial registered office of the corporation is:
700 First National Plaza
11404 West Dodge Road
Omaha, Nebraska 68154
The name of the initial registered agent at such address is Charles P.
Fike.
The Board of Directors, by an appropriate resolution, shall have the power
and authority to change the location of the registered office of the corporation,
and to change the designation of the registered agent.
ARTICLE VII
BYLAWS
The initial bylaws of the corporation shall be adopted by the Board of
Directors, and may be amended by the Board at any regular or special meeting
called for that purpose.
ARTICLE VIII
BOARD OF DIRECTORS
The management and direction of the corporation shall be vested in its
Board of Directors.
The number of directors of the corporation shall be fixed by the bylaws,
but shall not be less than three (3). The names and street addresses of the
persons who shall serve as the initial directors are as follows:
James R. Beatty
NATIONAL CONSULTING SYSTEMS, INC.
9910 North 48th Avenue
Suite #202
Omaha, NE 68152
Deborah Brockman
FAMILY HOUSING ADVISORY SERVICES
2416 Lake Street
Omaha, NE 68111
2 ‘ .450
BOOKpAGFI
Rodney A Conser
AT&T NETWORK SYSTEMS
120TH & "I" Streets
Omaha, NE 68137
Charles P. Fike
SCHMID, MOONEY & FREDERICK, P.C.
700 First National Plaza
11404 West Dodge Road
Omaha, NE 68154
James C. Freeman
1701 John Creighton Boulevard
Omaha, NE 68111
Frank L. Hayes
HAYES & ASSOCIATES, C.P.A.'s
Suite 205 Morgan Place
8420 West Dodge Road
Omaha, NE 68114
Charles A. Peters
CAP INVESTMENTS, INC.
3123 South 144th Avenue
Omaha, NE 68144
ARTICLE IX
POWERS
The corporation shall have and possess all powers and rights conferred
upon corporations by the Nebraska Nonprofit Corporation Act, and any
enlargement of such powers conferred by subsequent legislative acts; and, in
addition, the corporation shall have and exercise all powers and rights, not
otherwise denied nonprofit corporations by the laws of the State of Nebraska as
are necessary, suitable, proper, convenient, or expedient to the attainment of the
purposes set forth in Article IV hereof.
ARTICLE X
INCORPORATORS
The names and addresses of the incorporators are as follows:
3
•
BOOK,312.—
Charles P. Fike
SCHMID, MOONEY & FREDERICK, P.C.
700 First National Plaza
11404 West Dodge Road
Omaha, Nebraska 68154
Janice J. Taylor
SCHMID, MOONEY & FREDERICK, P.C.
700 First National Plaza
11404 West Dodge Road
Omaha, Nebraska 68154
IN WITNESS WHEREOF, the above and foregoing
Articles of Incorporation are executed this 16th day of May, 1994.
Charles P. Fike, Incorporator
etitl �S7
Janke J. Taylo , Incorpojtor
4
• 08/09/1994 10:05 402-691-8511 CAP INVESTMENTS INC PAGE 01
EXHIBIT "B"
A A B C
1 ORCHARD MANOR APARTMENTS AUGUST 8, 199rev
2
3 FORECAST OF SOURCES OF FUNDS
4 -
5 SOURCES
6 LIMITED PARTNER EQUITY $1,418,030
7 GENERAL PARTNER'S CONTRIBUTIONS _ $100
8 PERMANENT FINANCING (FIRST) $815,000
9 PERMANENT FINANCING (2D—CITY/HOME) $980,000
10 DEVELOPMENT NOTE DUE SPONSOR $131,640
11
12
13 _ TOTAL SOURCES $3,344,770 —
14
15
16 USES — TOTAL COSTS $3,344,770_
17
18 LAND $136,000
19 CONSTRUCTION $2,401,780 -_
20 RESERVES AND ALL FEES AND SERVICES $806,990
21 TOTAL $3,344,770 _
22
23 PACKPUSE.WK6
08/09/1994 10:05 402-691-8511 CAP INVESTMENTS INC PAGE 02
A A
• 1 • (5 APARTMENTS 1��DWEWN,
_ -CHARD CHARD MANOR AP 11111MMIMI
�
3 I �dET E in iiiiiiiii
sII— II— II— 11 �
8 soh aer 12 monk
• 1111� •
8 Gross Rant .a: 596 11 11,831 �.
IEND
9 a . , 11 2- �1,527
10 _�
11��
11
12 •
i=E' TIN Ems' SES +4%' • 11 18 237
;a - .. - � ll�r
16is ''" d' /1 1s130 1.560
17 L.:• 1,500 1,580
20 1i��
21 ••eratl 11�-
22 .'. I - ,180
llmfImr
IIIM
24 11 $7.000 r
11.r•••
26 eInten noe• 11 0 '
27 • II !woo° 240
28 Gen•orxreidrttananoa 29 11 500 •
$2,800
-
30 G&dsnf • &Grounds 11�:.:.2D0 500 $3 640
31 R 1� $1 700 Woo
• Past • trot
EWiitor 11 o0 $6,240
� 11IIIIIIII�
-LI
37 . . 6 at ue 1 b1-
ZIEllaIlil
38 C` x dB at Gross
30 G•Eimmiimmillinam.392 11111Mjami.
x • rDU
40 ill f1
41 42 '• c
43 �� � 41>2
44 ` �
•
as - - ]1ta�11
40 .,. • Reserve a' 67, of Gross i1�
a7 _ , nni , =deto4 i67,200 _ ifiiiimpocum
48 - .• moment Reserve et 296 or , - W.11
IIIIMIIIIIMIMIIMIII
111
s2 • -,1 so
La.
-----6G-- mima........"— ( i___—_.,...m.mmimmielT•
5�. 6e7 tit 1
do isilliMIIIIMIIIIM
59 1y 11 11 0016 20 M
61 .._--_•. -1,604
t EXHBIIT "C"
HOME PROGRAM
MEDIAN INCOME PER FAMILY SIZE
EFFECTIVE MAY 31, 1994
Family Size (50%) (60%) (80%) (100%)
1 $14,950 $17,950 $23,900 $29,900
2 $17,100 $20,500 $27,350 $34,200
3 $19,200 $23,050 $30,750 $38,400
4 $21,350 $25,600 $34,150 $42,700
5 $23,050 $27,650 $36,900 $46,100
6 $24,750 $29,700 $39,600 $49,500
7 $26,450 $31,750 $42,350 $52,900
8 $28,200 $33,850 $45,100 $56,400
9 $29,900 $35,900 $47,850 $59,800
10 $31,600 $37,900 $50,550 $63,200
11 ` $33,300 $39,950 $53,300 $66,600
12 $35,000 $42,000 $56,000 $70,000
Note: Incomes have been rounded to nearest $50.00. Actual median family
income apply for participation in the HOME Program. Median family
income cannot exceed 80%.
EXHIBIT "D"
HOME Investment Partnerships Program
24 CFR Part 92
Interim Rule
as published in the
Federal Register
December 16, 1991;
° December 11, 1992;
* December 22, 1992;
+ June 23, 1993
and
April 19, 1994
Subpart A — General
•§ 92.1 Overview and purpose. 5
§ 92.2 Definitions. 6
§ 92.3 Waivers. 14
§ 92.4 Expiration of interim rule. 14
Subpart B — Allocation Formula
§ 92.50 Formula allocation. 14
§ 92.51 [Removed]. 16
§ 92.52 Publishing formula allocation. 16
°Insular Areas Program
§ 92.60 Allocation amounts for insular areas. 17
§ 92.61 Program description and housing strategy. 17
§ 92.62 Review of program description and certifications. 19
§ 92.63 Amendments to program description. 19
§ 92.64 Applicability of requirements to insular areas. 20
§ 92.65 Funding sanctions. 21
§ 92.66 Reallocation. 21
Subpart C — Participating Jurisdiction:
Designation and Revocation of Designation-Consortia
§ 92.100 General. 21
§ 92.101 Consortia. 22
§ 92.102 Participation threshold amount. 23
§ 92.103 Notification of intent to participate. 23
§ 92.104 Submission of housing strategy. 23
§ 92.105 Designation as a participating jurisdiction. 24
§ 92.106 Continuous designation as a participating jurisdiction. 24
§ 92.107 Revocation of designation as a participating jurisdiction. 24
Subpart D — Program Description
§ 92.150 Submission of program description and certifications. 24
§ 92.151 Review of program description and certifications. 26
§ 92.152 Amendments to program description. 27
Subpart E — Program Requirements
§ 92.200 Private-public partnership. 28
§ 92.201 Distribution of assistance. 28
§ 92.202 Site and neighborhood standards. 29
§ 92.203 Income determinations. 29
§ 92.204 Applicability of requirements to entities that receive a reallocation
of HOME funds, other than participating jurisdictions. 29
2
ELIGIBLE AND PROHIBITED ACTIVITIES
§ 92.205 Eligible activities: General. 30
§ 92.206 Eligible project costs. 31
§ 92.207 Eligible administration and planning costs. 33
§ 92.208 Eligible CHDO operating expense and capacity building costs. 3534
§ 92.209 Eligible costs related to tenant-based rental assistance. 35
§ 92.210 Tenant-based rental assistance: security deposit 35
§ 92.211 Tenant-based rental assistance. 37
§ 92.212 REACH: Asset recycling information dissemination. 37
§ 92.213 Development of model programs.§ 92.214 Prohibited activities. 37
387
§ 92.215 Limitation on jurisdictions under court order.
INCOME TARGETING
§ 92.216 Income targeting: Tenant-based rental assistance and rental units 38
- Initial eligibility determination and reexamination.
§ 92.217 Income targeting: Homeownership. 39
MATCHING CONTRIBUTION REQUIREMENT
• § 92.218 Amount of matching contribution. 39
§ 92.219 Recognition of matching contribution. 40
§ 92.220 Form of matching contribution. 41
§ 92.221 Match credit. 44
§ 92.222 Reduction of matching contribution requirement. 45
, Subpart F - Project Requirements
§ 92.250 Maximum per-unit subsidy amount. 46
92.251 Property standards. 47
housing. 47
and income targeting: Rental
1
§ 92.252 Qualification as affordable housing50
§ 92.253 Tenant and participant protections. 51
§ 92.254 Qualification as affordable housing: Homeownership. 53
§ 92.255 Mixed-income project. 54
§ 92.256 Mixed-use project. 54
§ 92.257 Religious organizations.
§ 92.258 Limitation on the use of HOME funds with FHA mortgage insurance. 54
54
§ 92.259 Elder cottage housing opportunity (ECHO) units- 54
Subpart G -- Community Housing Development Organizations
§ 92.300 Set-aside for community housing development organizations. 55
§ 92.301 Project-specific assistance to community housing development organizations. 56
§ 92.302 Housing education and organizational support. 57
§ 92.303 Tenant participation plan. 60 ,
3
Subpart H — Other Federal Requirements
§ 92.350 Equal opportunity and fair housing. 60
§ 92.351 Affirmative marketing. 61
§ 92.352 Environmental review. 62
§ 92.353 Displacement, relocation, and acquisition. 62
§ 92.354 Labor. 66
§ 92.355 Lead-based paint. 66
§ 92.356 Conflict of interest. 67
§ 92.357 Debarment and suspension. 68
§ 92.358 Flood insurance. 68
§ 92.359 Executive Order 12372. 68
Subpart I -- Technical Assistance
§ 92.400 Coordinated federal support for housing strategies. 69
Subpart J — Reallocations
§ 92.450 General. 70
§ 92.451 Reallocation of HOME funds from a jurisdiction that is not designated
a participating jurisdiction or has its designation revoked. 70
§ 92.452 Reallocation of community housing development organization set-aside. 71
• § 92.453 Criteria for competitive reallocations. 71
§ 92.454 Reallocations by formula. 73
Subpart K — Program Administration
§ 92.500 The HOME Investment Trust Fund. 74
§ 92.501 HOME Investment Partnership Agreement. 75
§ 92.502 Cash and Management Information System; Disbursement of HOME funds. 76
§ 92.503 Repayment of investment. 77
§ 92.504 Participating jurisdiction responsibilities; written agreements; monitoring. 78
§ 92.505 Applicability of uniform administrative
requirements. 80
§ 92.506 Audit. 81
§ 92.507 Closeout. 81
§ 92.508 Recordkeeping. 82
§ 92.509 Performance reports. 85
Subpart L — Performance Reviews and Sanctions
§ 92.550 Performance reviews. 86
§ 92.551 Corrective and remedial actions. 87
§ 92.552 Notice and opportunity for hearing; sanctions. 88 •
Authority: 42 U.S.C. 3535(d) and 12701-12839
4
Subpart A — General
§ 92.1 Overview and purpose.
§ 92.2 Definitions.
§ 92.3 Waivers.
®§ 92.4 Expiration of interim rule.
§ 92.1 Overview and purpose.
(a) Overview. This part implements the HOME Investment Partnerships Act (the HOME
Investment Partnerships Program). In general, under the HOME Investment Partnerships
Program, HUD allocates funds by formula among eligible state and local governments to
strengthen public-private partnerships to provide more affordable housing. Generally, HOME
funds must be matched by nonfederal resources. State and local governments that become
participating jurisdictions may use HOME funds to carry out multi-year housing strategies
through acquisition, rehabilitation, and new construction of housing, and tenant-based rental
assistance. Participating jurisdictions are able to provide assistance in a number of eligible
forms, including loans, advances, equity investments, interest subsidies and other forms of
investment that HUD approves.
(b) Purpose. The purposes of the Home Program are:
(1) To expand the supply of decent, safe, sanitary, and affordable housing, with primary
attention to rental housing, for very low-income and low-income Americans;
(2) To mobilize and strengthen the abilities of states and units of general local government
throughout the United States to design and implement strategies for achieving an
adequate supply of decent, safe, sanitary, and affordable housing;
(3) To provide participating jurisdictions, on a coordinated basis, with the various forms of
federal housing assistance, including capital investment, mortgage insurance, rental
assistance, and other federal assistance, needed
(i) To expand the supply of decent, safe, sanitary, and affordable housing;
(ii) To make new construction, rehabilitation, substantial rehabilitation, and acquisition
of such housing feasible; and
(iii) To promote the development of partnerships among the federal government, states
and units of general local government, private industry, and nonprofit
organizations able to utilize effectively all available resources to provide more of
such housing;
(iv) To make housing more affordable for very low-income and low-income families
through the use of tenant-based rental assistance;
(v) To develop and refine, on an ongoing basis, a selection of model programs
incorporating the most effective methods for providing decent, safe, sanitary, and
affordable housing, and accelerate the application of such methods where
appropriate throughout the United States to achieve the prudent and efficient use of
HOME funds;
5
(vi) To expand the capacity of nonprofit community housing development organizations
to develop and manage decent, safe, sanitary, and affordable housing;
(vii) To ensure that federal investment produces housing stock that is available and
affordable to low-income families for the property's remaining useful life, is
appropriate to the neighborhood surroundings, and, wherever appropriate, is
mixed income housing;
(viii) To increase the investment of private capital and the use of private sector
resources in the provision of decent, safe, sanitary, and affordable housing;
(ix) To allocate federal funds for investment in affordable housing among participating
jurisdictions by formula allocation;
(x) To leverage HOME funds insofar as practicable with state and local matching
contributions and private investment;
(xi) To establish for each participating jurisdiction a HOME Investment Trust Fund
with a line of credit for investment in affordable housing, with repayments back to
its HOME Investment Trust Fund being made available for reinvestment by the
jurisdiction;
(xii) To provide credit enhancement for affordable housing by utilizing the capacities of
existing agencies and mortgage finance institutions when most efficient and
supplementing their activities when appropriate; and
(xiii) To assist very low-income and low-income families to obtain the skills and
knowledge necessary to become responsible homeowners and tenants.
§ 92.2 Definitions.
Adjusted income. See §§ 92.203 and 92.610.
®Administrative costs. [Removed]
Annual income. See §§ 92.203 and 92.610.
Certification means a written assertion, based on supporting evidence, which must be kept
available for inspection by HUD, the Inspector General and the public, which assertion is deemed
to be accurate for purposes of this part, unless HUD determines otherwise after inspecting the
evidence and providing due notice and opportunity for comment.
®Commitment means
(1) The participating jurisdiction has entered into a legally binding agreement with a state
recipient, a subrecipient, or a contractor to use a specific amount of HOME funds to
produce affordable housing or provide tenant-based rental assistance or has entered into
a written agreement reserving a specific amount of funds to a CHDO, or commit to a
speck local project, as defined in paragraph (2) of this definition.
(2) Commit to a specific local project, which means:
(i) For a project which is privately owned when the commitment is made:
(A) If the project is for rehabilitation or new construction, a written legally
binding agreement between the participating jurisdiction and the project
6
L'�i
owner under which the participating jurisdiction (or other entity receiving
HOME funds directly from HUD, state recipient, or subrecipient) agrees to
provide HOME assistance to the owner for an identifiable project as defined
in this part that can reasonably be expected to start construction within
twelve months of the agreement and in which the owner agrees to start
construction within that period.
(B) If funds are used for tenant-based rental assistance, the participating
jurisdiction (or other entity receiving HOME funds directly from HUD, state
recipient, or subrecipient) has entered into a rental assistance contract with
the owner or the tenant in accordance with the provisions of § 92.211.
(C) If the project is for acquisition, a written legally binding agreement, i.e.,
contract for sale, between the participating jurisdiction (or other entity
receiving HOME funds directly from HUD, state recipient, or subrecipient)
and the project owner under which the participating jurisdiction (or other
entity receiving HOME funds directly from HUD, state recipient, or
subrecipient) agrees to provide HOME assistance to the owner for purchase
of the project that can reasonably be expected to be accomplished within six
months of the agreement and in which the owner agrees to transfer title
within that period.
(ii) For a project that is publicly owned when the commitment is made, the Project
Set-Up Report submitted under the Cash and Management Information System
which identifies a specific project that will start construction within twelve months
of receipt of the Project Set-Up Report.
(iii) Under both paragraphs (2)(i) and (ii) of this,definition, the date HUD enters into
the Cash and Management Information System (§ 92.502) an acceptable Project
Set-Up Report for a project is deemed to be the date of project commitment.
Community housing development organization means a private nonprofit organization that
(1) Is organized under state or local laws;
(2) Has no part of its net earnings inuring to the benefit of any member, founder,
contributor, or individual; •
(3) Is neither controlled by, nor under the direction of, individuals or entities seeking to
derive profit or gain from the organization. A community housing development
organization may be sponsored or created by a for-profit entity, but:
(i) The for-profit entity may not be an entity whose primary purpose is the
development or management of housing, such as a builder, developer, or real
estate management firm.
(ii) The for-profit entity may not have the right to appoint more than one-third of the
membership of the organization's governing body. Board members appointed by
the for-profit entity may not appoint the remaining two-thirds of the board
members; and
(iii) The community housing development organization must be free to contract for
goods and services from vendors of its own choosing;
7
0(4) Has a tax exempt ruling from the Internal Revenue Service under section 501(c)(3) or
(4) of the Internal Revenue Code of 1986;
'(5) Does not include a public body (including the participating jurisdiction). An
organization that is State or locally chartered may qualify as a community housing
development organization; however, the State or local government may not have the
right to appoint more than one-third of the membership of the organization's governing
body and no more than one-third of the board members may be public officials. Board
members appointed by the State or local government may not appoint the remaining
two-thirds of the board members;
(6) Has standards of financial accountability that conform to Attachment F of OMB Circular
No. A-110 (Rev.) "Standards for Financial Management Systems."
(7) Has among its purposes the provision of decent housing that is affordable to low-income
and moderate-income persons, as evidenced in its charter, articles of incorporation,
resolutions or by-laws;
"(8) Maintains accountability to low-income community residents by --
"(i) Maintaining at least one-third of its governing board's membership for residents of
low-income neighborhoods, other low-income community residents, or elected
representative of low-income neighborhood organizations. For urban areas,
"community" may be a neighborhood or neighborhoods, city, county or
metropolitan area: for rural areas, it may be a neighborhood or neighborhoods,
town, village, county, or multi-county area (but not the entire State); and
(ii) Providing a formal process for low-income, program beneficiaries to advise the
organization in its decisions regarding the design, siting, development, and
management of affordable housing;
(9) Has a demonstrated capacity for carrying out activities assisted with HOME funds. An
organization may satisfy this requirement by hiring experienced accomplished key staff
members who have successfully completed similar projects, or a consultant with the
same type of experience and a plan to train appropriate key staff members of the
organization; and
(10) Has a history of serving the community within which housing to be assisted with HOME
funds is to be located. In general, an organization must be able to show one year of
serving the community (from the date the participating jurisdiction provides HOME
funds to the organization). However, a newly created organization formed by local
churches, service organizations or neighborhood organizations may meet this
requirement by demonstrating that its parent organization has at least a year of serving
•
the community.
Displaced homemaker means an individual who
(1) Is an adult;
(2) Has not worked full-time, full-year in the labor force for a number of years but has,
during such years, worked primarily without remuneration to care for the home and
family; and
8 ` I 1
(3) Is unemployed or underemployed and is experiencing difficulty in obtaining or
upgrading employment.
Family has the same meaning given that term by part 812 of this title.
+.first-time homebuyer means an individual or an individual and his or her spouse who have not
owned a home during the 3-year period before the purchase of a home with HOME assistance,
except that
(1) Any individual who is a displaced homemaker (as defined in this section) may not be
excluded from consideration as a first-time homebuyer under this paragraph on the basis
that the individual, while a homemaker, owned a home with his or her spouse or resided
in a home owned by the spouse:
(2) Any individual who is a single parent (as defined in this section) may not be excluded
from consideration as a first-time homebuyer under this paragraph on the basis that the
individual, while married, owned a home with his or her spouse or resided in a home
owned by the spouse; and
(3) An individual may not be excluded from consideration as a first-time homebuyer under
this paragraph on the basis that the individual owns or owned, as a principal residence
during the 3-year period before the purchase of a home with HOME assistance, a
dwelling unit whose structure is
(i) Not permanently affixed to a permanent foundation in accordance with local or
other applicable regulations; or
(ii) Not in compliance with State, local, or model building codes, or other applicable
codes, and cannot be brought into compliance with such codes for less than the
cost of constructing a permanent structure.
Government-sponsored mortgage finance corporations means the Federal National Mortgage
Association, the Federal Home Loan Mortgage Corporation, and the Federal Agricultural
Mortgage Corporation.
HOME funds means funds made available under this part through allocations and reallocations,
plus all repayments and interest or other return on the investment of these funds.
Homeownership means ownership in fee simple title or a 99 year leasehold interest in a one- to
four-unit dwelling or in a condominium unit, ownership or membership in a cooperative, or
equivalent form of ownership approved by HUD. The ownership interest may be subject only to
the restrictions on resale required under § 92.254(a); mortgages, deeds of trust, or other liens or
instruments.securing debt on the property as approved by the participating jurisdiction; or any
other restrictions or encumbrances that do not impair the good and marketable nature of title to the
ownership interest. ° For purposes of the insular areas, homeownership includes leases of 40
years or more.
Household means one or more persons occupying a housing unit.
®Housing includes manufactured housing and manufactured housing lots. Housing also includes
elder cottage housing opportunity (ECHO) units that are small, free-standing, barrier-free, energy-
efficient, removable, and designed to be installed adjacent to existing single-family dwellings.
Housing does not include emergency shelters.
9
Housing strategy means a comprehensive housing affordability strategy prepared in accordance
with part 91 of this title, consisting of either a complete submission or an annual update.
Approved housing strategy means a housing strategy that has been approved by HUD in
accordance with part 91 of this chapter.
HUD means the United States Department of Housing and Urban Development.
`Impact fee means a fee or charge, levied by a government against a property, to cover wholly or '
partly the cost of providing capital improvements or public services necessitated by the
construction or alteration of a residential or commercial development, or to control growth.
Indian Housing Authority means any entity that is authorized to engage in or assist in the
development or operation of low-income housing for Indians that is established either by exercise
of the power of self-government of an Indian tribe independent of state law; or by operation of
state law providing specifically for housing authorities for Indians, including regional housing
authorities in the State of Alaska.
Indian tribe means any Indian Tribe, band, group, or nation, including Alaskan Indians, Aleuts,
and Eskimos, and any Alaskan Native Village of the United States that is considered an eligible
recipient under Title I of the Indian Self-Determination and Education Assistance Act (25 U.S.C.
450) or was considered an eligible recipient under the State and Local Fiscal Assistance Act of
1972 (31 U.S.C. 1221) before repeal of that Act. Eligible recipients under the Indian
Self-Determination and Education Assistance Act are determined by the Bureau of Indian Affairs.
°Insular areas means Guam, the Northern Mariana Islands. the United States Virgin Islands, and
American Samoa.
Jurisdiction means a state or unit of general local government.
Low-income families means families whose annual incomes do not exceed 80 percent of the
median income for the area, as determined by HUD with adjustments for smaller and larger
families, except that HUD may establish income ceilings higher or lower than 80 percent of the
median for the area on the basis of HUD findings that such variations are necessary because of
prevailing levels of construction costs or fair market rents, or unusually high or low family
incomes.
Low-income neighborhood means a neighborhood that has at least 51 percent of its households at
or below 80 percent of median income for the area.
Metropolitan city has the meaning given the term in 570.3 of this title.
'Moderate income families means families whose incomes are between 80 percent and 95 percent
of the median income for the area, as determined by HUD, with adjustments for smaller and
larger families, except that HUD may establish income ceilings higher or lower than 95 percent of
the median for the area on the basis of HUD's findings that such variations are necessary because
of prevailing levels of construction costs or fair market rents, or unusually high or low family
incomes.
Monthly adjusted income. See §§ 92.203 and 92.610.
Monthly income. See §§ 92.203 and 92.610.
• Neighborhood means a geographic location designated in comprehensive plans, ordinances, or
other local documents as a neighborhood, village, or similar geographical designation that is
10 L
within the boundary but does not encompass the entire area of a unit of general local government.
If the unit of general local government has a population under 25,000, the neighborhood may, but
need not, encompass the entire area of a unit of general local government.
+Operating expenses means reasonable and necessary costs for the operation of the community
housing development organization. Such costs include salaries, wages, and other employee.
compensation and benefits; employee education, training, and travel; rent; utilities; communication
costs; taxes; insurance; and equipment, materials and supplies.
Participating jurisdiction means any jurisdiction (as defined in this section) that has been so
designated by HUD in accordance with § 92.105.
Person with disabilities means a household composed of one or more persons, at least one of
whom is an adult, who has a disability.
(1) A person is considered to have a disability if the person has a physical, mental, or
emotional impairment that
(i) Is expected to be of long-continued and indefinite duration;
(ii) Substantially impedes his or her ability to live independently; and
(iii) Is of such a nature that such ability could be improved by more suitable housing
conditions.
(2) A person will also be considered to have a disability if he or she has a developmental
• disability, which is a severe, chronic disability that -
(i) Is attributable to a mental or physical impairment or combination of mental and
physical impairments;
(ii) Is manifested before the person attains age 22;
(iii) Is likely to continue indefinitely;
(iv) Results in substantial functional limitations in three or more of the following areas
of major life activity: Self-care, receptive and expressive language, learning,
mobility, self-direction, capacity for independent living, and economic
self-sufficiency; and
(v) Reflects the person's need for a combination and sequence of special,
interdisciplinary, or generic care, treatment, or other services that are of lifelong
or extended duration and are individually planned and coordinated.
Notwithstanding the preceding provisions of this definition, the term "person with
disabilities" includes two or more persons with disabilities living together, one or
more such persons living with another person who is determined to be important
to their care or well-being, and the surviving member or members of any
household described in the first sentence of this definition who were living, in a
unit assisted with HOME funds, with the deceased member of the household at the
time of his or her death.
'Project means a site or an entire building (including a manufactured housing unit), or two or
more buildings, together with the site or (when permissible) sites on which the building or
buildings are located, that are under common ownership, management, and financing and are to be
assisted with HOME funds, under a commitment by the owner, as a single undertaking under this
11
part. Project includes all the activities associated with the site and building. A project may
include more than one site only if the sites are within a four block area of each other or if the
project is undertaken pursuant to subpart M (HOME Funds for Indian Tribes) of this part.
Project completion means that all necessary title transfer requirements and construction work have
been performed and the project in HUD's judgement complies with the requirements of this part
(including the property standards adopted under § 92.251); the final drawdown has been disbursed
for the project; and a Project Completion Report has been submitted and processed in the Cash
and Management Information System (§ 92.502) as prescribed by HUD. For tenant-based rental
assistance, the final drawdown has been disbursed for the project and the final payment
certification has been submitted and processed in the Cash and Management Information System as
prescribed by HUD.
Public housing agency (PHA) means any state, county, municipality or other governmental entity
• or public body (or its agency or instrumentality) that is authorized to engage in or assist in the
development or operation of low-income housing. The term includes any Indian Housing
Authority.
' Reconstruction means the rebuilding, on the same lot, of housing standing on a site at the time
of project commitment. The number of housing units on the lot may not be decreased or
increased as part of a reconstruction project, but the number of rooms per unit may be increased
or decreased. The reconstructed housing must be substantially similar (i.e., single- or multi-
family housing) to the original housing. Reconstruction also includes replacing an existing
substandard unit of manufactured housing with a new or standard unit of manufactured housing.
Reconstruction is rehabilitation for purposes of this part.
Secretary means the Secretary of Housing and Urban Development.
Single parent means an individual who
(1) Is unmarried or legally separated from a spouse; and
(2) (i) Has one or more minor children for whom the individual has custody or joint
custody; or
(ii) Is pregnant.
®Single room occupancy (SRO) housing means housing consisting of single room dwelling units
• that is the primary residence of its occupant or occupants. The unit must contain either food
preparation or sanitary facilities (and may contain both) if the project consists of new construction,
conversion of non-residential space, or reconstruction. For acquisition or rehabilitation of an
existing residential structure, neither food preparation or sanitary facilities is required to be in the
unit. If the units do not contain sanitary facilities, the building must contain sanitary facilities that
are shared by tenants. SRO does not include facilities for students.
State means any state of the United States, the District of Columbia, and the Commonwealth of
Puerto Rico.
State recipient. See § 92.201(b)(2).
Subrecipient means a public agency or nonprofit organization selected by the participating
jurisdiction to administer all or a portion of the participating jurisdiction's HOME program. A
public agency or nonprofit organization that receives HOME funds solely as a developer or owner
0
12 A_
of housing is not a subrecipient. The participating jurisdiction's selection of a subrecipient is not
subject to the procurement procedures and requirements.
Substantial rehabilitation means the rehabilitation of residential property at an average cost for the
project in excess of S25,000 per dwelling unit.
• {'Tenant-based rental assistance is a form of rental assistance in which the assisted tenant may
move from a dwelling unit with a right to continued assistance. Tenant-based rental assistance
under this part also includes security deposits for rental of dwelling units.
+Transitional housing means housing that
(1) Is designed to provide housing and appropriate supportive services to persons, including
(but not limited to) deinstitutionalized individuals with disabilities, homeless individuals
with disabilities, and homeless families with children; and
(2) Has as its purpose facilitating the movement of individuals and families to independent
living within a time period that is set by the participating jurisdiction or project owner
before occupancy.
°Unit of general local government means a.city. town, township, county, parish, village, or other
general purpose political subdivision of a State; the Federal States of Micronesia and Palau, the
Marshall Islands, or a general purpose political subdivision thereof; a consortium of such political
subdivisions recognized by HUD in accordance with § 92.101; and any agency or instrumentality
thereof that is established pursuant to legislation and designated by the chief executive to act on
behalf of the jurisdiction with regard to provisions of this part. When a county is an urban county,
the urban county is the unit of general local government for purposes of the HOME Investment
Partnerships Program.
Urban county has the meaning given the term in 570.3 of this title.
Very low-income families means low-income families whose annual incomes do not exceed 50
percent of the median family income for the area, as determined by HUD with adjustments for
smaller and larger families, except that HUD may establish income ceilings higher or lower than
50 percent of the median for the area on the basis of HUD findings that such variations are
necessary because of prevailing levels of construction costs or fair market rents, or unusually high
or low family incomes.
13
-(2) If the participating jurisdiction intends to provide tenant-based rental assistance, the
certification required by § 92.211, or, if the participating jurisdiction intends to provide
tenant-based rental assistance solely in the form of security deposits, the certification
required by § 92.210;
(3) A certification that the submission of the program description is authorized under state
and local law (as applicable), and the participating jurisdiction possesses the legal
authority to carry out the HOME Investment Partnerships Program, in accordance with
the HOME regulations;
(4) A certification that it will comply with the acquisition and relocation requirements of the
Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. as
amended, implementing regulations at 49 CFR part 24 and the requirements of
§ 92.353;
"(5) A certification that the participating jurisdiction and, if applicable, State recipients, will
use HOME funds pursuant to the participating jurisdiction's current approved housing
strategy and in compliance with all requirements of its part;
(6) The certification with regard to the drug-free workplace required by 24 CFR part 24,
subpart F; and
(7) The certification required with regard to lobbying required by 24 CFR part 87, together
with disclosure forms, if required by 24 CFR part 8.
(Approved by the Office of Management and Budget under OMB control number 2501-0013)
§ 92.151 Review of program description and certifications.
'(a) Review of program description. The responsible HUD Field Office will review a
participating jurisdiction's program description and will approve the description unless it is
not consistent with its current approved housing strategy, or if the participating jurisdiction
has failed to submit information sufficient to allow HUD to make the necessary
determinations required by § 92.150 (b)(5), (b)(7), and (b)(8), if applicable. If the
information submitted is not consistent with its current approved housing strategy or the
participating jurisdiction has not submitted information in accordance with § 92.150(b)(5),
(b)(7), and (b)(8), if applicable,the participating jurisdiction may be required to furnish any
information or assurance HUD may consider necessary to approve the program description .
•
and certifications.
(b) Review period. The HUD Field Office will notify the participating jurisdiction if its program
description is not consistent with its approved housing strategy or determinations cannot be
made under § 92.150 (b)(5), (b)(7), or (b)(8) within 30 days of receipt and the participating
jurisdictions will have a reasonable period of time, agreed upon mutually, to submit the
necessary supporting information to show it is consistent or to revise the activities in its
program description.
(c) Conditional approval of program description. If the participating jurisdiction does not submit
the supporting information under § 92.150 (b)(5) or (b)(7) sufficient to show consistency with
its approved housing strategy or to allow the required HUD determinations or HUD
disapproves the guidelines under § 92.150(b)(5) or the form of investment under
§ 92.150(b)(7), the Field Office may approve the program description conditionally excepting
26
1
those activities covered by those sections until such time as the necessary information is
submitted.
'(d) A participating jurisdiction must have a current approved housing strategy before funds are
made available.
'(e) HOME Investment Parmership Agreement. After Field Office approval under this section, a
HOME funds allocation is made by HUD execution of the agreement, subject to execution by
the participating jurisdiction. The funds are obligated on the date HUD notifies the
participating jurisdiction of HUD's execution of the agreement in accordance with this section
and § 92.501.
§ 92.152 Amendments to program description.
i'In general, a participating jurisdiction is not required to submit to HUD amendments to its
program description that it makes during the fiscal year. The participating jurisdiction must
document amendments in its file, and if the amendments affect future allocations, must include
these amendments in the program description for the following fiscal year. However, a
participating jurisdiction must submit any amendments to the following for HUD approval:
guidelines for resale or recapture (see § 92.150(b)(5)); other forms of investment (see
§ 92.150(b)(7); and minority and women business outreach program (§ 92.150(b)(8)).
Subpart E-Program Requirements
§ 92.200 Private-public partnership.
§ 92.201 Distribution of assistance.
§ 92.202 Site and neighborhood standards.
§ 92.203 Income determinations.
§ 92.204 Applicability of requirements to entities that receive a reallocation of HOME funds,
other than participating jurisdictions.
ELIGIBLE AND PROHIBITED ACTIVITIES
§ 92.205 Eligible activities: General.
'492.206 Eligible project costs.
0§92.207 Eligible administrative and planning costs.
®§92.208 Eligible CHDO operating and capacity building costs.
'492.209 Eligible costs related to tenant-based rental assistance.
+§92.210 Tenant-based rental assistance: security deposits.
§ 92.211 Tenant-based rental assistance.
§ 92.212 REACH: Asset recycling information dissemination.
§ 92.213 Development of model programs.
§ 92.214 Prohibited activities.
§ 92.215 Limitation on jurisdictions under court order.
INCOME TARGETING
§ 92.216 Income targeting: Tenant-based rental assistance and rental units-Initial eligibility
determination and reexamination.
§ 92.217 Income targeting: Homeownership.
MATCHING CONTRIBUTION REQUIREMENT
§ 92.218 Amount of matching contribution.
§ 92.219 Recognition of matching contribution.
27
§ 92.220 Form of matching contribution.
§ 92.221 Match credit.
§ 92.222 Reduction of matching contribution requirement.
§ 92.200 Private-public partnership.
Each participating jurisdiction must make all reasonable efforts, consistent with the purposes of
this part, to maximize participation by the private sector, including nonprofit organizations and
for-profit entities, in the implementation of the jurisdiction's approved housing strategy, including
participation in the financing, development, rehabilitation and management of affordable housing.
Nothing in the previous sentence shall preclude public housing authorities from fully participating
in the implementation of a jurisdiction's approved housing strategy.
(Approved by the Office of Management and Budget under OMB control number 2501-0013)
§ 92.201 Distribution of assistance.
(a) Local. Each participating jurisdiction must, insofar as is feasible, distribute HOME funds
geographically within its boundaries and among different categories of housing need,
according to the priorities of housing need identified in its approved housing strategy.
(b) State.
(I) Each participating state is responsible for distributing HOME funds throughout the state
according to the state's assessment of the geographical distribution of the housing need
within the state, as identified in the state's approved housing strategy. The state must
distribute HOME funds to rural areas in amounts that take into account the
nonmetropolitan share of the state's total population and objective measures of rural
housing need, such as poverty and substandard housing, as set forth in the state's
approved housing strategy. To the extent the need is within the boundaries of a
participating unit of general local government, the state and the unit of general local
government shall coordinate activities to address that need.
(2) A state may carry out its own HOME program without active participation of units of
general local government or may distribute HOME funds to units of general local
government to carry out HOME programs in which both the state and all or some of the
units of general local government perform specified program functions. A unit of
general local government designated by a state to receive HOME funds from a state is a
state recipient.
(3) (i) A state that uses state recipients to perform program functions shall ensure that the
state recipients use HOME funds in accordance with the requirements of this part
and other applicable laws. A state shall include in its written agreement with its
state recipients such additional provisions (including provisions permitting the state
to withdraw or reduce HOME funds or take other actions based on noncompliance
by the state recipient) as may be appropriate to ensure compliance and to enable
the state to carry out its responsibilities under this part.
(ii) The state shall conduct such reviews and audit of its state recipients as may be
necessary or appropriate to determine whether the state recipient has committed
the HOME funds in the United States Treasury account as required by § 92.500
and expended the funds in the United States Treasury account as required by
28 , „
•
§ 92.500, and has met the requirements of this part, particularly eligible activities,
income targeting, affordability, and matching contribution requirement.
(Approved by the Office of Management and Budget under OMB control number 2501-0013)
§ 92.202 Site and neighborhood standards.
A participating jurisdiction must administer its HOME program in a manner that provides housing
that:
(a) Is suitable from the standpoint of facilitating and furthering full compliance with the
applicable provisions of title VI of the Civil Rights Act of 1964, the Fair Housing Act,
E.O. 11063, and HUD regulations issued pursuant thereto; and
(b) Promotes greater choice of housing opportunities.
(c) In carrying out these requirements with respect to new construction, a participating
jurisdiction must follow 882.708(c) of the title.
(Approved by the Office of Management and Budget under OMB control number 2501-0013)
§ 92.203 Income determinations.
'Whenever a participating jurisdiction makes a determination under this part based on family
income or adjusted family income, it must use the definitions of annual income, adjusted income,
monthly income, and monthly adjusted income, as those terms are defined in part 813 of this title,
except when determining the income of a homeowner for an owner-occupied rehabilitation project,
the equity in the homeowner's principal residence is excluded from "Net Family Assets."
(Approved by the Office of Management and Budget under OMB control number 2501-0013)
§ 92.204 Applicability of requirements to entities that receive a reallocation of HOME funds,
other than participating jurisdictions.
(a) Jurisdictions that are not participating jurisdictions and community housing development
organizations receiving competitive reallocations from HUD are subject to the same
requirements in subpart E (Program Requirements), subpart F (Project Requirements),
subpart K (Program Administration), and subpart L (Performance Reviews and Sanctions) of
this part as participating jurisdictions, except for the following.
`2(1) Subpart E (Program Requirements) of this part: The matching contribution
requirements in § 92.218 through § 92.221 do not apply.
(2) Subpart K (Program Administration) of this part: •
(i) Section 92.500 (The HOME Investment Trust Fund) does not apply..HUD will
establish a HOME account in the United States Treasury and the HOME funds
must be used for approved activities. A local account must be established for
repayment, interest and other return of investment of HOME funds. HUD will
recapture HOME funds in the HOME Treasury account by the amount of:
'(A) Any funds that are not committed within 24 months after the last day of the
month in which HUD notifies the entity of HUD's execution of the HOME
Investment Partnership Agreement;
29
'(B) Any funds that are not expended within five years after the last day of the
month in which HUD notifies the entity of HUD's execution of the HOME
Investment Partnership Agreement; and
(C) Any penalties assessed by HUD under § 92.552.
(ii) Section 92.502 (Cash and Management Information System) applies, except that
references to the HOME Investment Trust Fund mean HOME account and the
reference to 24 CFR part 58 does not apply. In addition, § 92.502(c) does not
apply, and compliance with Treasury Circular No. 1075 (31 CFR part 205) is
required.
(iii) Section 92.503 (Repayment of investment) applies, except that repayments, interest
and other return on investment of HOME funds may be retained provided the
funds are used for eligible activities in accordance with the requirements of this
section.
(3) Section 92.504 (Participating jurisdiction responsibilities; written agreements;
monitoring) applies, except that the written agreement must ensure compliance with the
requirements in this section.
(4) Section 92.508 (Recordkeeping) applies with respect to the records that relate to the
requirements of this section.
(5) Section 92.509 (Performance reports) applies, except that a performance report is
required only after completion of the approved projects.
(b) The requirements in subpart H (Other Federal Requirements) of this part apply, except that
jurisdictions and community housing development organizations receiving reallocations from
HUD must comply with affirmative marketing requirements, the flood insurance requirements
labor requirements, and lead-based paint requirements, applicable to participating
jurisdictions.
(c) Subpart B (Allocation Formula), subpart C (Participating Jurisdiction: Designation and
Revocation of Designation-Consortia), subpart D (Program Description), and subpart G
(Community Housing Development Organizations) of this part do not apply.
ELIGIBLE AND PROHIBITED ACTIVITIES
§ 92.205 Eligible activities: General. •
(a) Eligible activities.
@(1) HOME funds may be used by a participating jurisdiction to provide incentives to
develop and support affordable rental housing and homeownership affordability through
the acquisition (including assistance to first-time homebuyers), new construction,
reconstruction, or moderate or substantial rehabilitation of non-luxury housing with
suitable amenities, including real property acquisition, site improvement, conversion,
demolition, and other expenses, including financing costs, relocation expenses of any
displaced persons, families, businesses, or organizations, to provide tenant-based rental
assistance, including security deposits; to provide payment of reasonable administrative
and planning costs; and to provide for the payment of operating expenses of community
housing development organizations. The housing must be permanent or transitional
housing, and includes permanent housing for disabled homeless persons, and
30 L
single-room occupancy housing. The specific eligible costs for these activities are set
forth in §§ 92.206 through 92.209.
'(2) Acquisition of vacant land or demolition must be undertaken only with respect to a
particular housing project intended to provide affordable housing.
(3) Housing that has received an initial certificate of occupancy or equivalent document
within a one-year period before a participating jurisdiction commits HOME funds to the
project is new construction for purposes of this part.
(4) Conversion of an existing structure to affordable housing is rehabilitation, unless the
conversion entails adding one or more units beyond the existing walls, in which case,
the project is new construction for purposes of this part.
(b) Forms of assistance. A participating jurisdiction may invest HOME funds as equity
investments, interest-bearing loans or advances, noninterest-bearing loans or advances,
interest subsidies consistent with the purposes of this part, deferred payment loans, grants, or
other forms of assistance that HUD determines to be consistent with the purposes of this part.
Each participating jurisdiction has the right to establish the terms of assistance, subject to the
requirements of this part.
`(c) Minimum amount of assistance. The minimum amount of HOME funds that must be invested
in a project involving rental housing or homeownership is $1,000 times the number of
HOME-assisted units in the project.
(d) Termination before completion. If HOME funds are spent on a project that is terminated
before completion, the funds must be repaid to the participating jurisdiction's HOME
Investment Trust Fund (except as provided in § 92.301(a)(3) and § 92.301(b)(3) for
project-specific assistance to community housing development organizations).
§ 92.206 ®Eligible project costs.
HOME funds may be used to pay the following eligible costs:
(a) Development hard costs. The actual cost of constructing or rehabilitating housing. These costs
include the following:
(1) For new construction, costs to meet the applicable new construction standards of the
•
participating jurisdiction and the Model Energy Code referred to in § 92.251;
@(2) For rehabilitation, costs:
(i) To meet the applicable rehabilitation standards of the participating jurisdiction or
correct substandard conditions to, minimally, the housing quality standards at
§ 882.109 of this title;
(ii) To make essential improvements, including energy-related repairs or
improvements, improvements necessary to permit use by handicapped persons, and
the abatement of lead-based paint hazards, as required by § 92.355, and to repair
or replace major housing systems in danger of failure; and
(iii) To refinance existing debt secured by a single-family owner-occupied unit when
loaning HOME funds to rehabilitate the unit, if the overall housing costs of the
borrower will be reduced and made more affordable.
31
`3(3) For both new construction and rehabilitation, costs:
(i) To demolish existing structures;
(ii) To make utility connections including off-site connections from the property line
to the adjacent street; and
(iii) To make improvements to the project site that are in keeping with improvements
of surrounding, standard projects. Site improvements may include on-site roads
and sewer and water lines necessary to the development of the project. The
project site is the property, owned by the project owner, upon which the project is
located.
o(b) Acquisition costs. Costs of acquiring improved or unimproved real property, including
acquisition by first-time homebuyers.
@(c) Related soft costs. Other reasonable and necessary costs incurred by the owner or
participating jurisdiction and associated with the financing, or development (or both) of new
construction, rehabilitation or acquisition of housing assisted with HOME funds. These costs
include, but are not limited to:
(1) Architectural, engineering or related professional services required to prepare plans,
drawings, specifications, or work write-ups;
(2) Costs to process and settle the financing for a project, such as private lender origination
fees, credit reports, fees for title evidence, fees for recordation and filing of legal
documents, building permits, attorneys, fees, private appraisal fees and fees for an
independent cost estimate, builders or developers fees;
(3) Costs of a project audit that the participating jurisdiction may require with respect to the
development of the project; and
(4) Costs to provide information services such as affirmative marketing and fair housing
information to prospective homeowners and tenants as required by § 92.351.
®(5) For new construction or substantial rehabilitation, the cost of funding an initial operating
deficit reserve, which is a reserve to meet any shortfall in project income during the
period of project rent-up (not to exceed 18 months) and which may only be used to pay
project operating expenses, reserve for replacement payments, and debt service. Any
HOME funds placed in an operating deficit reserve that remain unexpended when the
reserve terminates must be returned to the participating jurisdiction's local HOME
Investment Trust Fund account.
®(6) Staff and overhead costs directly related to carrying out the project, such as work
specifications preparation, loan processing inspections, and other services related to
assisting potential owners, tenants, and homebuyers, e.g., housing counseling, may be
charged to project costs only if the project is funded and the individual becomes the
owner or tenant of the HOME-assisted project. For multi-unit projects, such costs must
be allocated among HOME-assisted units in a reasonable manner and documented.
®(7) For both new construction and rehabilitation, costs for the payment of impact fees that
are charged for all projects within a jurisdiction.
L
32
•
@(d) Community housing development organization (CHDO) project specific assistance under §
92.301.
@(e) Relocation costs. The cost of relocation payments and other relocation assistance to persons
displaced by the project are eligible costs.
(1) Relocation payments include replacement housing payments, payments for moving
expenses, and payments for reasonable out-of-pocket costs incurred in the temporary
relocation of persons.
(2) Other relocation assistance means staff and overhead costs directly related to providing
advisory and other relocation services to persons displaced by the project, including
timely written notices to occupants, referrals to comparable and suitable replacement
property, property inspections, counseling, and other assistance necessary to minimize
hardship.
(Approved by the Office of Management and Budget under OMB control number 2501-0013)
®§92.207 Eligible administrative and planning costs.
A participating jurisdiction may expend, for payment of reasonable administrative and planning
costs of the HOME program, an amount of HOME funds that is not more than ten percent of the
fiscal year HOME basic formula allocation plus any funds received in accordance with
§ 92.102(b) to meet or exceed participation threshold requirements that fiscal year. A State that
transfers any HOME funds in accordance with § 92.102(b) must exclude these funds in calculating
the amount it may expend for administrative and planning costs. A participating jurisdiction may
also use up to ten percent of any return of the HOME investment, as defined in § 92.503,
calculated at the time of deposit in its local HOME account, for administrative and planning costs.
Reasonable administrative and planning costs includes:
(a) General management, oversight and coordination. Reasonable costs of overall program
management, coordination, monitoring, and evaluation. Such costs include, but are not
limited to, necessary expenditures for the following:
(1) Salaries, wages, and related costs of the participating jurisdiction's staff. In charging
costs to this category the participating jurisdiction may either include the entire salary,
wages, and related costs allocable to the program of each person whose primary
responsibilities with regard to the program involves program administration assignments, •
or the prorated share of the salary, wages, and related costs of each person whose job
includes program administration assignments. The participating jurisdiction may
use only one of these methods. Program administration includes the following types of
assignments:
(i) Developing systems and schedules for ensuring compliance with program
requirements;
(ii) Developing interagency agreements and agreements with entities receiving HOME
funds;
. (iii) Monitoring HOME-assisted housing for progress and compliance with program
requirements;
(iv) Developing agreements and monitoring housing not assisted with HOME funds
that the participating jurisdiction designates as a matching contribution in
33
accordance with § 92.219(b) for compliance with applicable program
requirements;
(v) Preparing reports and other documents related to the program for submission to
HUD;
(vi) Coordinating the resolution of audit and monitoring findings;
(vii) Evaluating program results against stated objectives; and
(viii) Managing or supervising persons whose primary responsibilities with regard to the
program include such assignments as those described in paragraph (1)(i) through
(vii) of this section;
(2) Travel costs incurred for official business in carrying out the program;
(3) Administrative services performed under third party contracts or agreements, including
such services as general legal services, accounting services, and audit services; and
(4) Other costs for goods and services required for administration of the program, including
such goods and services as rental or purchase of equipment, insurance, utilities, office
supplies, and rental and maintenance (but not purchase) of office space.
(5) Costs of administering tenant-based rental assistance programs.
(b) Staff and overhead. Staff and overhead costs directly related to carrying out the project, such
as work specifications preparation, loan processing inspections, and other services related to
assisting potential owners, tenants, and homebuyers (e.g., housing counseling). Staff and
overhead costs directly related to providing advisory and other relocation services to persons
displaced by the project, including timely written notices to occupants, referrals to
comparable and suitable replacement property, property inspections, counseling, and other
assistance necessary to minimize hardship. These costs may be charged as administrative
costs or as project costs under § 92.206(c)(6) and (e)(2), at the discretion of the participating
jurisdiction.
(c) Public information. The provision of information and other resources to residents and citizen
organizations participating in the planning, implementation, or assessment of projects being
assisted with HOME funds.
(d) Fair housing. Activities that affirmatively further fair housing. •
(e) Indirect Costs. Indirect costs may be charged to the HOME program under a cost allocation
plan prepared in accordance with OMB Circulars A-87 or A-122 as applicable.
(f) Submission of the housing strategy. Preparation of the housing strategy required under 24
CFR Part 91. Preparation includes the costs of public hearings, consultations, and
publication.
0§ 92.208 Eligible CHDO operating expense and capacity building costs.
(a) Up to 5 percent of a participating jurisdiction's fiscal year HOME allocation may be used for
the operating expenses of community housing development organizations (CHDOs). These
funds may not be used to pay operating costs incurred by a CHDO acting as a subrecipient or
contractor under the HOME Program. The requirements and limitations on the receipt of
these funds by CHDOs are set forth in § 92.300(e) and (f).
34
(b) HOME funds may be used for capacity building costs under § 92.300(b).
6§ 92.209 Eligible costs related to tenant-based rental assistance.
Eligible costs are the rental assistance and security deposit payments made to provide tenant-based
rental assistance for a family. Administration of tenant-based rental assistance is eligible only
under general management oversight and coordination at § 92.207(a).
§ 92.210 +Tenant-based rental assistance: security deposits.
+(a) A participating jurisdiction may use HOME funds provided for tenant-based rental assistance
to provide loans or grants to very low- and low-income families for security deposits for
rental of dwelling units whether or not the participating jurisdiction provides any other
tenant-based rental assistance under § 92.211.
+(b) The relevant state or local definition of "security deposit" in the jurisdiction where the unit is
located is applicable for the purposes of this part, except that the amount of HOME funds
that may be provided for a security deposit may not exceed the equivalent of two month's
rent for the unit.
+(c) Only the prospective tenant may apply for HOME security deposit assistance, although the
participating jurisdiction may pay the funds directly to the tenant or to the landlord.
+(d) The lease between a tenant and an owner of rental housing for which HOME security deposit
assistance is provided must comply with the requirements of § 92.253 (a) and (b).
+(e) HOME funds for security deposits may be provided as a grant or as a loan. If they are
provided as a loan, the provisions at § 92.503(b) on repayment of HOME investment apply.
+(f) The provisions at § 92.211 (a), (b), (d), (e) and (g), applicable to tenant-based rental
assistance, are applicable to HOME security deposit assistance.
§ 92.211 Tenant-based rental assistance.
(a) General. A participating jurisdiction may use HOME funds for tenant-based rental assistance
only if
(1) The participating jurisdiction certifies that the use of HOME funds for tenant-based
rental assistance is an essential element of the participating jurisdiction's annual
approved housing strategy for expanding the supply, affordability, and availability of
decent, safe, sanitary, and affordable housing, and specifies local market conditions that
lead to the choice of this option; and
®(2) The participating jurisdiction selects families in accordance with written tenant selection
policies and criteria that are consistent with the purposes of providing housing to very
low- and low-income families and are reasonably related to preference rules established
under section 6(c)(4)(A) of the Housing Act of 1937 (42 U.S.C. 1437 et. seq.).
Selection policies and criteria meet the "reasonably related" requirement if at least 70%
of the families assisted qualify, or would qualify in the near future without the tenant-
based rental assistance, for one of the three Federal preferences under section 6(c)(4)(A)
of the Housing Act of 1937. These are families that occupy substandard housing
(including families that are homeless or living in a shelter for homeless families);
families that are paying more than 50 percent of(gross) family income for rent; or
families that are involuntarily displaced. The participating jurisdiction may select low-
35
income families currently residing in units that are designated for rehabilitation or
acquisition under the participating jurisdiction's HOME program without requiring that
the family meet the written tenant selection policies and criteria. Families so selected
may use the tenant-based assistance in the rehabilitated or acquired unit or in other
qualified housing.
®(3) A participating jurisdiction may require the family to use the tenant-based assistance
within the participating jurisdiction's boundaries or may permit the family to use the
assistance outside its boundaries.
*(b) Program operation. A tenant-based rental assistance program must be operated consistently
with the requirements of this section and § 92.210, if applicable. The participating
jurisdiction may operate the program itself, or may contract with a PHA or other entity with
the capacity to operate a rental assistance program. The tenant-based rental assistance may be
provided through an assistance contract to an owner that leases a unit to an assisted family or
directly to the family.
(c) Term of rental assistance contract. The term of the rental assistance contract providing
assistance with HOME funds may not exceed 24 months, but may be renewed, subject to the
availability of HOME funds. The term of the rental assistance contract must begin on the first
day of the term of the lease. For a rental assistance contract between a participating
jurisdiction and an owner, the term of the contract must terminate on termination of the
lease. For a rental assistance contract between a participating jurisdiction and a family, the
term of the contract need not end on termination of the lease, but no payments may be made
• atter termination of the lease until a family enters into a new lease.
(d) Rent reasonableness. The participating jurisdiction must disapprove a lease if the rent is not
reasonable, based on rents that are charged for comparable unassisted rental units.
(e) Lease requirements. The lease must comply with the requirements in § 92.253 (a) and (b).
(f) Maximum subsidy.
(1) The amount of the monthly assistance that a participating jurisdiction may pay to, or on
behalf of, a family may not exceed the difference between a rent standard for the unit
size established by the participating jurisdiction and 30 percent of the family's monthly
adjusted income.
(2) The participating jurisdiction must establish a minimum tenant contribution to rent.
®(3) The participating jurisdiction's rent standard for a unit size must based on:
• (i) Local market conditions; or
(ii) May not be less, for each unit size, than 80 percent of the published Section 8
Existing Housing fair market rent (in effect when the payment standard amount is
adopted) nor more than the fair market rent or HUD-approved community-wide
exception rent (in effect when the participating jurisdiction adopts its rent standard
amount). (Community-wide exception rents are maximum gross rents approved by
HUD for the Rental Certificate Program under 882.106(a)(3) of this title for a
designated municipality, county, or similar locality, which apply to the whole
PHA jurisdiction.) A participating jurisdiction may approve on a unit-by-unit
36 �.. \'
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basis a subsidy based on a rent standard that exceeds the applicable fair market
rent by up to 10 percent for 20 percent of units assisted.
(g) Housing quality standards. Housing occupied by a family receiving tenant-based assistance
under this section must meet the performance requirements set forth in 882.109 of this title.
In addition, the housing must meet the acceptability criteria set forth in 882.109 of this title,
except for such variations, as are proposed by the participating jurisdiction and approved by
HUD. Local climatic or geological conditions or local codes are examples which may justify
such variations.
(h) Use of Section 8 assistance. In any case where assistance under section 8 of the United States
Housing Act of 1937 becomes available to a participating jurisdiction, recipients of
tenant-based rental assistance under this part will qualify for tenant selection preferences to
the same extent as when they received the tenant-based rental assistance under this part.
§ 92.212 REACH: Asset recycling information dissemination.
(a) General. HUD will make available upon request by any participating jurisdiction a list of
eligible properties that are located within the jurisdiction and that are owned or controlled by
HUD to facilitate their purchase, development, or rehabilitation with HOME funds.
(b) Eligible properties. An eligible property under this section must:
(1) Be an unoccupied single-family or multifamily dwelling, such that acquisition and
rehabilitation of the dwelling would not result in the displacement of any residents of the
dwelling; and
(2) Have an appraised value that does not exceed:
(i) In the case of a 1- to 4-family dwelling, the mortgage limit for the type of single
family housing (1- to 4-family residence, condominium unit, combination
manufactured home and lot, or manufactured home lot) for the area (including any
applicable high-cost mortgage limit published by HUD in the Federal Register)
under HUD's single family insuring authority under the National Housing Act.
For a cooperative unit, the appraised value for a cooperative share may not exceed
the balance remaining after subtracting from the 1-family mortgage limit an
amount equal to the blanket mortgage covering the cooperative development which
is attributable to this cooperative unit: or
(ii) In the case of a dwelling with more than 4 units, the applicable maximum dollar
amount limitation, as determined under 221.514 (b)(1) and (c) of this title that
would apply to a mortgage insured under section 221(d)(3)(ii) of the National
Housing Act for elevator-type structures, involving a nonprofit mortgagor.
§ 92.213 Development of model programs.
HUD will develop and make available from time to time model programs that have been
developed in cooperation with participating jurisdictions, government-sponsored mortgage finance
corporations, nonprofit organizations, the private sector, and other appropriate parties and that are
designed to carry out the purposes of this part.
'§ 92.214 Prohibited activities.
(a) HOME funds may not be used to — •
37
•
(1) Provide a project reserve account for replacements, a project reserve account for
unanticipated increases in operating costs, or operating subsidies;
(2) Provide tenant-based rental assistance for the special purposes of the existing section 8
program, including the activities specified in § 791.403(b)(1) of this title, or preventing
displacement from projects assisted with rental rehabilitation grants under part 511 of
this title;
(3) Provide nonfederal matching contributions required under any other federal program;
(4) Provide assistance authorized under part 965 (PHA-Owned or Leased Projects—
Maintenance and Operation) of this title;
(5) Carry out activities authorized under part 968 (Public Housing Modernization) of this
title;
(6) Provide assistance to eligible low-income housing under part 248 (Prepayment of Low
Income Housing Mortgages) of this title;
(7) Provide assistance (other than tenant-based rental assistance or assistance to a first-time
homebuyer to acquire housing previously assisted with HOME funds) to a project
previously assisted with HOME funds during the period of affordability established by
the participating jurisdiction under § 92.502 or § 92.504. However, additional HOME
funds may be committed to a project up to one year after project completion (see
' § 92.502), but the amount of HOME funds in the project may not exceed the maximum
• per-unit subsidy amount established under § 92.250.
®(8) Pay for the acquisition of property owned by the participating jurisdiction, except for
property acquired by the participating jurisdiction with HOME funds, or property
acquired in anticipation of carrying out a HOME project.
(b) Participating jurisdictions may not charge monitoring, servicing and origination fees in
HOME-assisted projects. However, participating jurisdictions may charge nominal
application fees (although these fees are not an eligible HOME cost) to project owners to
discourage frivolous applications.
§. 92.215 Limitation on jurisdictions under court order.
(a) HOME funds may not be used to carry out housing remedies or to pay fines, penalties, or
costs associated with an action in which a participating jurisdiction has been adjudicated, by a
federal, state, or local court, to be in violation of title VI of the Civil Rights Act of 1964, the
Fair Housing Act, or any other federal, state, or local law promoting fair housing or
prohibiting discrimination.
(b) HOME funds may be used in connection with a settlement that has been entered into in any
case where claims of violations described in paragraph (a) of this section have been asserted
against a participating jurisdiction only to carry out housing remedies with eligible activities.
INCOME TARGETING
§ 92.216 Income targeting: Tenant-based rental assistance and rental units-Initial eligibility
determination and reexamination.
(a) Each participating jurisdiction must invest HOME funds made available during a fiscal year
so that, with respect to tenant-based rental assistance and rental units:
38 L
•
(1) Not less than 90 percent of such funds are invested with respect to dwelling units that
are occupied by families whose annual incomes do not exceed 60 percent of the median
family income for the area, as determined and made available by HUD with adjustments
for smaller and larger families (except that HUD may establish income ceilings higher
or lower than 60 percent of the median for the area on the basis of HUD's findings that
such variations are necessary because of prevailing levels of construction cost or fair
market rent, or unusuallyhi h or t w family income) at the time of occupancy or at the
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time funds are invested, whichever is later; and
(2) The remainder of these funds are invested with respect to dwelling units that are
occupied by households that qualify as low-income families (other than families
described in paragraph (a)(1) of this section) at the time of occupancy or at the time
funds are invested, whichever is later.
(b) The participating jurisdiction must determine an applicant's income eligibility\and eligibility
as a family at the time the applicant receives assistance, and must reexamine family income
and family size and composition, at least annually.
§ 92.217 Income targeting: Homeownership.
Each participating jurisdiction must invest HOME funds made available during a fiscal year so
that with respect to homeownership assistance, 100 percent of these funds are invested with
respect to dwelling units that are occupied by households that qualify as low-income families at the
time of occupancy or at the time funds are invested, whichever is later.
MATCHING CONTRIBUTION REQUIREMENT'
§ 92.218 Amount of matching contribution.
@(a) Each participating jurisdiction must make contributions to housing that qualifies as affordable
housing under the HOME program, throughout a fiscal year. The contributions must total
not less than:
-(1) Thirty percent of the total funds drawn from the jurisdiction's HOME Investment Trust
Fund Treasury account in that fiscal year for new construction projects; and
T(2) Twenty-five percent of the total funds drawn from the jurisdiction's HOME investment
Trust Fund Treasury account in that fiscal year for tenant-based rental assistance,
housing rehabilitation projects, and acquisition projects of standard housing that does not
constitute new construction.
' The Department of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations
Act, 1992, Public Law 101-139, 105 Stat. 736, approved October 28, 1991 (FY 1992 Appropriations Act) contained a
proviso, concerning amounts appropriated for the HOME Program for fiscal year 1992,.which prohibits the Department
from requiring any contributions by or in behalf of a participating jurisdiction, notwithstanding section 220 of the HOME
Investment Partnership Act. Accordingly, participating jurisdictions are not required to comply with the matching
Contributions requirements in § 92.218 through § 92.222 for HOME funds drawn down from accounts provided in the FY
1992 Appropriations Act, regardless of the fiscal year in which the FY 1992 HOME funds are drawn down.
39
(b) Amounts made available under § 92.102(b)(2) from the resources of a state (other than a
transfer of the state's formula allocation), the local participating jurisdiction, or both, to
enable the local participating jurisdiction to meet the participation threshold amount are not
required to be matched and do not constitute matching contributions.
@(c) HOME funds used for administrative and planning costs (pursuant to § 92.207), CHDO
operating expenses (pursuant to § 92.208) and capacity building (pursuant to § 92.300(b)) of
community housing development organizations are not required to be matched.
(d) All eligible activities carried out with respect to a project carry with them the matching
contribution requirements associated with the project designation. A project consisting of one
structure which combines new construction and rehabilitation activities (e.g., adding one or
more units outside of the existing walls of a structure) is designated as a new construction
project, irrespective of costs attributable to each activity. For purposes of project
designation, projects involving the following activities are designated as rehabilitation
projects: Reconfiguring a structure to reduce the number of total units in order to increase
the number of large family units; adding one or more rooms (e.g., bedroom or bathroom)
outside of the existing walls for purposes of meeting occupancy or code standards; adding
one or more units within the existing structure, such as in an existing basement.
®(e) Contributions that have been or will be counted towards satisfying a matching requirement of
another Federal grant or award may not count toward satisfying the matching contribution
requirement for the HOME program.
(Approved by the Office of Management and Budget under OMB control number. 2501-0013)
§ 92.219 Recognition of matching contribution.
@(a) Match contribution to HOME-assisted housing: A contribution is recognized as a matching
contribution if:
(1) It is made with respect to a tenant who is assisted with HOME funds; or
(2) It is made with respect to HOME-assisted housing; or
(3) It is made with respect to any portion of a project (including a mixed-use project under
§ 92.256) not less than 50 percent of the dwelling units of which are HOME-assisted.
•
@(b) Match contribution to affordable housing that is not HOME-assisted. The following
requirements apply for recognition of matching contributions made to affordable housing that
is not HOME-assisted:
(1) For tenant-based rental assistance (TBRA) that is not HOME-assisted:
(i) The contribution must be made with respect to a tenant who is assisted with
tenant-based rental assistance that meets the requirements of §§ 92.203 (income
determinations), 92.210 (security deposits), 92.211 (TBRA, except for 92.211(c),
term of rental assistance contract), and 92.253(a) and (b) (tenant protections); and
(ii) The participating jurisdiction must demonstrate in writing that such assistance
meets the provisions of §§ 92.203, 92.210, 92.211, and 92.253(a) and (b).
(2) For affordable housing projects that are not HOME-assisted:
40 �.
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(i) The contribution must be made with respect to housing that qualifies as affordable
housing under § 92.252 or § 92.254.
(ii) The participating jurisdiction or its instrumentality must execute, with the owner
of the housing (or, if the participating jurisdiction is the owner, with the manager
or developer), a written agreement that imposes and enumerates all of the
affordability requirements from § 92.252 and § 92.253(a) and (b) (tenant
protections), or § 92.254, whichever are applicable, the property standards
requirements of § 92.251, and income determinations made in accordance with §
92.203. This written agreement must be executed before any match contributions
may be made.
(iii) A participating jurisdiction must establish a procedure to monitor these HOME
match-eligible projects to ensure continued compliance with the requirements of
§§ 92.203 (income determinations), 92.252(rental), 92.253(a) and (b) (tenant
protections) and 92.254 (ownership). No other HOME requirements apply.
(iv) The match contribution may be in any eligible form of match except those in
§§ 92.220(a)(2) and (4).
(v) Match contributions to mixed-use or mixed-income projects that contain affordable
housing units will be recognized only if the contribution is made to the project's
affordable housing units.
®(c) In addition to the requirements of paragraphs (a) and (b) of this section, a cash contribution is
recognized as a matching contribution only if it is used for costs eligible under §§ 92.206 or
92.209, or for the following costs (which are not eligible costs for HOME funds): the cost of
removing and relocating an ECHO housing unit to accommodate an eligible tenant, a project
reserve account for replacements, a project reserve account for unanticipated increases in
operating costs, operating subsidies, or costs relating to the portion of a mixed-income or
mixed-use HOME-assisted project not related to the affordable housing units.
§ 92.220 Form of matching contribution.
(a) Eligible forms. Matching contributions must be made from nonfederal resources and may be
in the form of one or more of the following:
®(1) Cash contributions from nonfederal sources. Except for contributions made to
affordable housing that is not assisted with HOME funds and bond proceeds to which
the provisions of § 92.220(a)(5) are applicable, to be a cash contribution, funds must be
contributed permanently to the HOME program, regardless of the form of investment
the jurisdiction provides to a project. Therefore all repayment, interest, or other return
on investment of the contribution must be deposited in the local account of the
participating jurisdiction's HOME Investment Trust Fund to be used for eligible HOME
activities in accordance with the requirements of this part. A cash contribution to
affordable housing that is not assisted with HOME funds must be contributed
permanently to the project. Repayments of matching contributions in affordable housing
projects, as defined in § 92.219(b), that are not HOME-assisted, must be made to the
local account of the participating jurisdiction's HOME Investment Trust Fund to get
match credit for the full loan amount.
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41
`(i) A cash contribution may be made by the participating jurisdiction, non-Federal
public entities, private entities, or individuals. A cash contribution may be made
from program income (as defined by § 85.25(b) of this title) from a Federal grant
earned after the end of the award period if no Federal requirements govern the
disposition of the program income. Included in this category are repayments from
closed out grants under the Urban Development Action Grant Program (24 CFR
Part 570, subpart G) and the Housing Development Grant Program (24 CFR Part
850), and from the Rental Rehabilitation Grant Program(24 CFR part 511) after
all fiscal year Rental Rehabilitation grants have been closed out.
(ii) The grant equivalent of a below-market interest rate loan to the project that is not
repayable to the participating jurisdiction's HOME Investment Trust Fund may be
counted as a cash contribution.
(A) If the loan is made from funds borrowed by a jurisdiction or public agency
or corporation, the contribution is the present discounted cash value of the
difference between payments to be made on the borrowed funds and
payments to be received from the loan to the project, based on a discount
rate equal to the interest rate on the borrowed funds.
(B) If the loan is made from funds other than funds borrowed by a jurisdiction
or public agency or corporation, the contribution is the present discounted
cash value of the yield foregone. In determining the yield foregone, the
participating jurisdiction must use as a measure of a market rate yield one of
the following, as appropriate:
(1) With respect to one- to four-unit housing financed with a fixed interest
rate mortgage, a rate equal to the 10-year Treasury note rate plus 200
basis points;
(2) With respect to one- to four-unit housing financed with an adjustable
interest rate mortgage, a rate equal to the one-year Treasury bill rate
plus 250 basis points; or
(3) With respect to a multifamily project,.a rate equal to the 10-year
Treasury note rate plus 300 basis points.
®(2) The value, based on customary and reasonable means for establishing value, of State or
local taxes, fees, or other charges that are normally and customarily imposed or charged
by a State or local government on all transactions or projects in the conduct of State or
local government operations but are waived, foregone, or deferred (including State
low-income housing tax credits) in a manner that achieves affordability of housing
assisted with HOME funds. Fees or charges that are associated with the HOME
Program only (rather than normally and customarily imposed or charged on all
transactions or projects) are not eligible forms of matching contributions. The amount
of any real estate taxes may be based on post-improvement property value, using
customary and reasonable means of establishing value. For taxes, fees, or charges that
are given for future years, the value is the present discounted cash value, based on a
rate equal to the rate for the Treasury security with a maturity closest to the number of
years for which the taxes, fees, or charges are waived, foregone, or deferred.
42,
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41(3) The value, before the HOME assistance is provided and minus any debt burden, lien, or
other encumbrance, of donated land or other real property.
(i) Property not acquired with federal resources is a contribution in the amount of
100% of the value.
(ii) Property that is acquired with federal assistance must be acquired specifically for
HOME-assisted housing or for affordable housing that will be counted as match
pursuant to §92.219(b)(2). Such property is a contribution in the amount of the
difference between the acquisition cost and the appraised value at the time of
acquisition with the federal assistance, provided that the property is acquired by
the HOME project owner (or owner of the affordable housing that will be counted
as match) with the federal assistance. It also may be given to the HOME project
owner (or owner of the affordable housing that will be counted as match) by the
entity acquiring the property with federal assistance or sold to the HOME project
owner (or owner of the affordable housing that will be counted as match) at a
price equal to or less than the amount of the federal assistance used to acquire the •
property. The acquisition cost paid with the federal assistance must be
demonstrably below the appraised value and must be acknowledged by the seller
as a donation to affordable housing at the time of the acquisition with the federal
assistance.
(iii) Property must be appraised in conformance with established and generally
recognized appraisal practice and procedures in common use by professional
appraisers. Opinions of value must be based on the best available data properly
analyzed and interpreted. The appraisal of land and structures must be performed
by an independent, certified appraiser.
(4) The cost of investment, not made with federal resources, in on-site and off-site
infrastructure that the participating jurisdiction documents are directly required for
affordable housing assisted with HOME funds. The infrastructure investment must have
been completed no earlier than 12 months before HOME funds are committed to such
affordable housing.
@(5) Proceeds from multi-family affordable housing and single-family project bond financing
validly issued by a State or local government, or an agency, instrumentality, or political
subdivision of a State, as follows:
(i) Fifty percent of the loan amount made from bond proceeds to a multi-family
affordable housing project owner may qualify as match.
(ii) Twenty-five percent of the loan amount from bond proceeds made to a single-
family affordable housing project owner may qualify as match.
(iii) Loans made from bond proceeds may not constitute more than 25 percent of a
participating jurisdiction's total annual match contribution. Loans made from
bond proceeds in excess of 25 percent of a participating jurisdiction's total annual
match contribution may be carried over to subsequent fiscal years as excess match,
but may not constitute more than 25 percent of a participating jurisdiction's total
annual match contribution in any one year.
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43
•
•
+(6) The reasonable value of site-preparation and construction materials, not acquired with
federal resources, and any donated or voluntary labor (see § 92.354(b)) in connection
with the site-preparation for, or construction or rehabilitation of, affordable housing.
+(i) The value of site-preparation and construction materials is to be determined in
accordance with the participating jurisdiction's cost estimate procedures.
+(ii) A single rate will be applicable for determining the value of donated or voluntary
labor. The rate will be published annually in the notice of funding availability
(NOFA) for the HOME program.
(b) Ineligible forms. The following are examples of forms of contributions that do not meet the
requirements of paragraph (a) of this section and do not count toward meeting a participating
jurisdiction's matching contribution requirement:
(1) Contributions made with or derived from federal resources or funds, regardless of when
the federal resources or funds were received or expended. CDBG funds (defined in
570.3 of this title) are federal funds for this purpose;
(2) The interest rate subsidy attributable to the federal tax-exemption on financing or the
value attributable to federal tax credits;
(3) Owner equity or investment in a project;
(4) Sweat equity; and
(5) Cash or other forms of contributions from applicants for or recipients of HOME
- assistance or contracts, or investors who own, are working on, or are proposing to apply
for, assistance for a HOME-assisted project.
§ 92.221 Match credit.
+(a) Contributions are credited on a fiscal year basis at the time the contribution is made, as
follows:
+(I) A cash contribution is credited when the funds are expended.
+(2) The grant equivalent of a below-market interest rate loan is credited at the time of the
loan closing.
+(3) The value of state or local taxes, fees, or other charges that are normally and
customarily imposed but are waived, foregone, or deferred is credited at the time the
state or local government officially waives, forgoes, or defers the taxes, fees, or other
charges and notifies the project owner.
+(4) The value of land or other real property is credited at the time ownership of the
property is transferred.
+(5) The cost of investment in infrastructure directly required for affordable housing assisted
with HOME funds is credited at the time funds are expended for the infrastructure or at
the time the HOME funds are committed to the affordable housing if the infrastructure
was completed before the commitment of HOME funds.
+(6) Donated material is credited as match at the time it is used for affordable housing;
donated or voluntary labor is credited at the time the work is performed.
®(7) A loan made from bond proceeds under § 92.220(a)(5) is credited at the time of the loan
closing.
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+ Excess match. Contributions made in a fiscalyear that exceed the participating jurisdiction's
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match liability for the fiscal year in which they were made will be carried over and applied to
future fiscal years match liability.
41(c) The participating jurisdiction that makes the match contributions to HOME-assisted or
HOME match eligible projects (match pursuant to § 92.219(b) for contributions to affordable
housing, including tenant-based rental assistance, that is not assisted with HOME funds) is
the participating jurisdiction that receives the match credit. A State that provides funding to
a local participating jurisdiction to be used for a contribution to affordable housing, whether
or not HOME-assisted, may take the match credit for itself or may permit the local
participating jurisdiction to receive the match credit.
§ 92.222 Reduction of matching contribution requirement.
+(a) Reduction for fiscal distress
+(1) Distress criteria for local government participating jurisdictions. As determined and
published annually by HUD, if a local government participating jurisdiction satisfies
both of the distress factors in paragraphs (a)(1)(i) and (ii) of this section, it is in severe
fiscal distress and its match requirement will be reduced 100% for the period specified
in paragraph (a)(3) of this section. If a local government participating jurisdiction
satisfies either distress factor in paragraphs (a)(1)(i) or (ii).of this section, it is in fiscal
distress and its match requirement will be reduced by 50 percent, for the period
specified in paragraph (a)(4) of this section.
+(i) Poverty rate. The average poverty rate in the participating jurisdiction was equal
to or greater than 125 percent of the average national poverty rate during the
calendar year for which the most recent data are available, as determined
according to information of the Bureau of the Census.
+(ii) Per capita income. The average per capita income in the participating jurisdiction
was less than 75 percent of the average national per capita income, during the
calendar year for which the most recent data are available, as determined
according to information of the Bureau of the Census
®(2) Distress criteria for participating jurisdictions that are States. As determined and
published annually by HUD, if a State satisfies at least 2 of the 3 distress factors in
paragraphs (a)(2)(i) through (iii) of this section, it is in severe fiscal distress and its
match requirement will be reduced 100% for the period specified in paragraph (a)(3) of
this section. If a State satisfies any 1 of the 3 distress factors in paragraphs (a)(2)(i).
through (iii) of this section, it is in fiscal distress and its match requirement will be
reduced by 50 percent, for the period specified in paragraph (a)(4) of this section.
(i) Poverty rate. The average poverty rate in the State was equal to or greater than
125 percent of the average national poverty rate during the calendar year for
which the most recent data are available, as determined according to information
of the Bureau of the Census.
(ii) Per capita income. The average per capita income in the State was Iess than 75
percent of the average national per capita income, during the calendar year for
which the most recent data are available, as determined according to information
of the Bureau of the Census.
45
(iii) Personal income growth. The average personal income growth rate in the State
over the most recent four quarters for which the data are available was less than
75 percent of the average national personal income growth rate during that period,
as determined according to information of the Bureau of Economic Analysis.
+(3) Period of match reduction for severe fiscal distress. A 100% match reduction is
effective for the fiscal year in which the severe fiscal distress determination is published
and for the following fiscal year.
+(4) Period of match reduction for fiscal distress. A 50% match reduction is effective for the
fiscal year in which the fiscal distress determination is published and for the following
fiscal year, except that if a severe fiscal distress determination is published in that
following fiscal year, the participating jurisdiction starts a new two-year match reduction
period in accordance with the provisions of paragraph (a)(3) of this section.
+(b) Reduction of match for participating jurisdictions in disaster areas. If a participating
jurisdiction is located in an area in which a declaration of major disaster pursuant to the
Robert T. Stafford Disaster Relief and Emergency Assistance Act is made, HUD may reduce
the matching requirement specified in § 92.218 by up to 100 percent for the fiscal year in
which the declaration of major disaster is made and the following fiscal year for a local
participating jurisdiction, and for a State participating jurisdiction, by up to 100 percent for
the fiscal year in which the declaration of major disaster is made and the following fiscal year
with respect to any HOME funds expended in an area to which the declaration of a major
disaster applies. [Participating jurisdictions for which a declaration of major disaster was
made in FY 1992 are permitted to request a match reduction for FY 1993 and FY 1994.] To
request a reduction, a participating jurisdiction must submit to the local HUD Field Office a
copy of the disaster declaration.
Subpart F — Project Requirements
§ 92.250 Maximum per-unit subsidy amount.
§ 92.251 Property standards.
§ 92.252 Qualification as affordable housing and income targeting: Rental housing.
§ 92.253 Tenant and participant protections.
§ 92.254 Qualification as affordable housing: Homeownership.
§ 92.255 Mixed-income project.
§ 92.256 Mixed-use project.
§ 92.257 Religious organizations.
§ 92.258 Limitation on the use of HOME funds with FHA mortgage insurance.
92.250 Maximum per-unit subsidy amount.
The amount of HOME funds that a participating,jurisdiction may invest on a per-unit basis in
affordable housing may not exceed the per-unit dollar limits established by HUD under
221.514(b)(1) and (c) of this title for elevator-type projects, involving nonprofit mortgagors,
insured under section 221(d)(3) of the National Housing Act that apply to the area in which the
housing is located. These limits are available from HUD. If the participating jurisdiction's per
unit subsidy amount has already been increased to 210% as permitted in § 221.514(c) of this title,
upon request to the Field Office, HUD will allow the per unit subsidy amount to be increased on a
program-wide basis to an amount, up to 240% of the original per unit limits.
46 L
•
'§ 92.251 Property standards.
(a) Housing that is assisted with HOME funds, at a minimum, must meet the housing quality
standards in § 882.109 of this title. In addition, housing that is newly constructed or
substantially rehabilitated with HOME funds must meet all applicable local codes,
rehabilitation standards, ordinances, and zoning ordinances. The participating jurisdiction
must have written standards for rehabilitation. Newly constructed housing must meet the
current edition of the Model Energy Code published by the Council of American Building
Officials. Substantially rehabilitated housing must meet the cost-effective energy conservation
and effectiveness standards in 24 CFR part 39.
(b) The following requirements apply to housing for homeownership that is to be rehabilitated
after transfer of the ownership interest:
(1) Before the transfer of the homeownership interest, the participating jurisdiction must:
(i) Inspect the housing for any defects that pose a danger to health; and
(ii) Notify the prospective purchaser of the work needed to cure the defects and the
time by which defects must be cured and applicable property standards met.
(2) The housing must be free from all noted health and safety defects before occupancy and
not later than 6 months after the transfer.
(3) The housing must meet the applicable property standards (at a minimum, the housing
quality standards in § 882.109 of this title) not later than 2 years after transfer of the
ownership interest.
(Approved by the Office of Management and Budget under OMB control number 2501-0013)
§ 92.252 Qualification as affordable housing and income targeting: Rental housing.
(a) Rent limitation. A rental housing project (including the non-owner-occupied units in housing
purchased with HOME funds in accordance-with § 92.254) qualifies as affordable housing
under this part only if the project:
(1) Bears rents not greater than the lesser of
(i) The fair market rent for existing housing for comparable units in the area as
established by HUD under 888.111 of this title, less the monthly allowance for the
utilities and services (excluding telephone) to be paid by the tenant; or
'(ii) A rent that does not exceed 30 percent of the adjusted income of a family whose
gross income equals 65 percent of the median income for the area, as determined
by HUD, with adjustments for number of bedrooms in the unit, except that HUD
may establish income ceilings higher or lower than 65 percent of the median for
the area on the basis of HUD's findings that such variations are necessary because
of prevailing levels of construction costs or fair market rents, or unusually high or
low family incomes. In determining the maximum monthly rent that may be
charged for a unit that is subject to this limitation, the owner or participating
jurisdiction must subtract a monthly allowance for any utilities and services
(excluding telephone) to be paid by the tenant. HUD will provide average
occupancy per unit and adjusted income assumptions to be used in calculating the
maximum rent allowed under this paragraph (a)(1)(ii);
47
'(2) Has, in the case of projects with three or more rental units, or in the case of an owner
of multiple one or two unit projects with a total of three or more rental units, not less
than 20 percent of the rental units
(i) Occupied by very low-income families who pay as a contribution toward rent
(excluding any federal or state rental subsidy provided on behalf of the family) not
more than 30 percent of the family's monthly adjusted income as determined by
HUD. To obtain the maximum monthly rent that may be charged for a unit that is
subject to this limitation, the owner or participating jurisdiction multiplies the
annual adjusted income of the tenant family by 30 percent and divides by 12 and,
if applicable, subtracts a monthly allowance for any utilities and services
(excluding telephone) to be paid by the tenant; or
(ii) Occupied by very low-income families and bearing rents not greater than 30
percent of the gross income of a family whose income equals 50 percent of the
median income for the area, as determined by HUD, with adjustment for smaller
and larger families, except that HUD may establish income ceilings higher or
lower than 50 percent of the median for the area on the basis of HUD's findings
that such variations are necessary because of prevailing levels of construction costs
or fair market rents, or unusually high or low family incomes. In determining the
maximum monthly rent that may be charged for a unit that is subject to this
limitation, the owner or participating jurisdiction must subtract a monthly
allowance for any utilities and services (excluding telephone) to be paid by the
tenant. HUD will provide average occupancy per unit assumptions to be used in
calculating the maximum rent allowed under paragraph (a)(2)(ii) of this section;
®(iii) The rent applicable to a unit under paragraph (a)(2) of this section shall be the
lowest rent computed under paragraphs (a)(1) and (a)(2) of this section.
(3) Is occupied only by households that qualify as low-income families;
(4) Is not refused for leasing to a holder of a certificate of family participation under 24
CFR part 882 (Rental Certificate Program) or a rental voucher under 24 CFR part 887
(Rental Voucher Program) or to the holder of a comparable document evidencing
participation in a HOME tenant-based assistance program because of the status of the
prospective tenant as a holder of such certificate of family participation, rental voucher,
or comparable HOME tenant-based assistance document; and
®(5) Will remain affordable without regard to the term of any mortgage or the transfer of
ownership, pursuant to deed restrictions, covenants running with the land, or other
mechanisms approved by HUD, for not less than the appropriate period, beginning after
project completion, as specified in the following table, except that the affordability
restrictions may terminate upon foreclosure or transfer in lieu of foreclosure. The
participating jurisdiction may use purchase options, rights of first refusal or other
preemptive rights to purchase the housing before foreclosure or deed in lieu of
foreclosure to preserve affordability. The affordability restrictions shall be revived
according to the original terms if, during the original affordability period, the owner of
record before the foreclosure, or deed in lieu of foreclosure, or any entity that includes
the former owner or those with whom the former owner has or had family or business
ties, obtains an ownership interest in the project or property.
48 ,►�-�
—1
Activity Minimum period of
affordability in years
Rehabilitation or acquisition of existing housing 5
per unit amount of HOME funds: Under S15,000
$15,000 to $40,000 10
Over $40,000 15
New construction or acquisition of newly 20
constructed housing
(b) Renr schedule and utility allowances. The participating jurisdiction must review and approve
rents proposed by the owner for units with "flat rents," i.e., units subject to the maximum
rent limitations in paragraph (a)(1)(i), (a)(1)(ii), or (a)(2)(ii) of this section. and, if
applicable, must review and approve, for all units subject to the maximum rent limitations
paragraph (a) of this section, the monthly allowances, proposed by the owner, for utilities
and services to be paid by the tenant. The owner must reexamine the income of each tenant
household living in low-income= units at least annually. The maximum monthly rent must be
recalculated by the owner and reviewed and approved by the participating jurisdiction
annually, and may change as changes in the applicable gross rent amounts, the income
adjustments, or the monthly allowance for utilities and services warrant. Any increase in
rents for lower income units is subject to the provisions of outstanding leases, in any event,
the owner must provide tenants of those units not less than 30 days prior written notice
before implementing any increase in rents.
-(c) Increases in tenant income. Rental housing qualifies as affordable housing despite a
temporary noncompliance with paragraph (a)(2) or (a)(3) of this section, if the noncompliance
is caused by increases in the incomes of existing tenants and if actions satisfactory to HUD
are being taken to ensure that all vacancies are filled in accordance with this section until the
noncompliance is corrected. Tenants who no longer qualify as low-income families must pay
as rent the lesser of the amount payable by the tenant under State or local law or 30 percent
of the family's adjusted monthly income, as recertified annually. The preceding sentence
shall not apply with respect to funds made available under this part for units that have been
allocated at low-income housing tax credit by a housing credit agency pursuant to section 42
of the Internal Revenue Code 1986 (26 U.S.C. 42).
®(d) Adjustment of qualifying rent.
(1) Changes in fair market rents and in median income over time should be sufficient to
maintain the financial viability of a project within the qualifying rent standards in
paragraphs (a)(1) and (2) of this section. Regardless of changes in fair market rents and
in median income over time, the qualifying rents are not required to be lower than the
HOME rent for the project in effect at the time of project commitment.
2 Revised with March 25, 1994, Federal Register.
49
(2) HUD may adjust the qualifying rents established for a project under paragraphs (a)(1)
and (2) of this section, only if HUD finds that an adjustment is necessary to support the
continued financial viability of the project and only by an amount that HUD determines
is necessary to maintain continued financial viability of the project. HUD expects that
this authority will be used sparingly.
'(e) Manufactured housing. Purchase and/or rehabilitation of a manufactured housing unit
qualifies as affordable housing only if, at the time of project completion, the unit —
(1) Is situated on a permanent foundation;
(2) Is connected to permanent utility hook-ups;
(3) Is located on land that is held in a fee-simple title, land-trust, or long-term ground lease
with a term at least equal to that of the appropriate affordability period;
(4) Meets the construction standards established under 24 CFR 3280;
(5) Meets all requirements of this section.
(Approved by the Office of Management and Budget under OMB control number 2501-0013)
§ 92.253 Tenant and participant protections.
(a) Lease. The lease between a tenant and an owner of rental housing assisted with HOME funds
must be for not less than one year, unless by mutual agreement between the tenant and the
owner.
(b) Prohibited lease terms. The lease may not contain any of the following provisions:
(1) Agreement to be sued. Agreement by the tenant to be sued, to admit guilt, or to a
judgment in favor of the owner in a lawsuit brought in connection with the lease;
(2) Treatment of property. Agreement by the tenant that the owner may take, hold, or sell
personal property of household members without notice to the tenant and a court
decision on the rights of the parties. This prohibition, however, does not apply to an
agreement by the tenant concerning disposition of personal property remaining in the
• housing unit after the tenant has moved out of the unit. The owner may dispose of this
personal property in accordance with state law;
(3) Excusing owner from responsibility. Agreement by the tenant not to hold the owner or
the owner's agents legally responsible for any action or failure to act, whether
intentional or negligent;
(4) Waiver of notice. Agreement of the tenant that the owner may institute a lawsuit without
notice to the tenant;
(5) Waiver of legal proceedings. Agreement by the tenant that the owner may evict the
tenant or household members without instituting a civil court proceeding in which the
tenant has the opportunity to present a defense, or before a court decision on the rights
of the parties;
(6) Waiver of a jury trial. Agreement by the tenant to waive any right to a trial by jury;
50 e
b
(7) Waiver of right to appeal court decision. Agreement by the tenant to waive the tenant's
right to appeal, or to otherwise challenge in court, a court decision in connection with
the lease; and
(8) Tenant chargeable with cost of legal actions regardless of outcome. Agreement by the
tenant to pay attorney's fees or other legal costs even if the tenant wins in a court
proceeding by the owner against the tenant. The tenant, however, may be obligated to
pay costs if the tenant loses.
+(c) Termination of tenancy. An owner may not terminate the tenancy or refuse to renew the lease
of a tenant of rental housing assisted with HOME funds except for serious or repeated
violation of the terms and conditions of the lease; for violation of applicable federal, state, or
local law; for completion of the transitional housing tenancy period; or for other good cause.
Any termination or refusal to renew must be preceded by not less than,30 days by the
owner's service upon the tenant of a written notice specifying the grounds for the action.
(d) Maintenance and replacement. An owner of rental housing assisted with HOME funds must
maintain the premises in compliance with all applicable housing quality standards and local
code requirements.
(e) Tenant selection. An owner of rental housing assisted with HOME.funds must adopt written
tenant selection policies and criteria that
(1) Are consistent with the purpose of providing housing for very low-income and
low-income families,
(2) Are reasonably related to program eligibility and the applicants' ability to perform the
obligations of the lease,
(3). Give reasonable consideration to the housing needs of families that would have a
preference under 960.211 (Federal selection preferences for admission to Public
Housing) of this title; and
(4) Provide for
(i) The selection of tenants from a written waiting list in the chronological order of
their application, insofar as is practicable; and
(ii) The prompt written notification to any rejected applicant of the grounds for any
rejection.
(Approved by the Office of Management and Budget under OMB control number 2501-0013)
§ 92.254 Qualification as affordable housing: homeownership.
(a) Purchase with or without rehabilitation. Housing that is for purchase by a family qualifies as
affordable housing only if the housing:
(1) ®(i) Has an initial purchase price that does not exceed 95% of the median purchase
price for the type of single-family housing (1- to 4-family residence, condominium
unit, cooperative unit, combination manufactured home and lot, or manufactured
home lot) for the jurisdiction as determined by HUD, and which may be appealed
in accordance with 24 CFR 203.18b; and
•
51
+(ii) Has an estimated appraised value at acquisition, if standard, or after any repair
P
needed to meet property standards in § 92.251, that does not exceed the limit
described in paragraph (a)(1)(i) of this section.
(2) Is the principal residence of an owner whose family qualifies as a low-income family at
the time of purchase;
(3) Is made available for initial purchase only to first-time homebuyers; and
e(4) Is subject - for minimum periods of: 5 years where the per unit amount of HOME
funds provided is less than $15,000; 10 years where the per unit amount of HOME
funds provided is $15,000 to $40,000; and 15 years where the per unit amount of
HOME funds provided is greater than $40,000 - to resale restrictions or recapture
provisions that are established by the participating jurisdiction and determined by HUD
to be appropriate to either:
+(i) Make the housing available for subsequent purchase only to a low income family
that will use the property as its principal residence; and
+(A) Provide the owner with a fair return on investment, including any
improvements, and
+(B) Ensure that the housing will remain affordable, pursuant to deed restrictions,
covenants running with the land, or other similar mechanisms to ensure
affordability, to a reasonable range of low-income homebuyers. The
affordability restrictions must terminate upon occurrence of any of the
following termination events: Foreclosure, transfer in lieu of foreclosure or
assignment of an FHA insured mortgage to HUD. The participating
jurisdiction may use purchase options, rights of first refusal or other
preemptive rights to purchase the housing before foreclosure to preserve
affordability. The affordability restrictions shall be revived according to the
original terms if, during the original affordability period, the owner of
record before the termination event, or any entity that includes the former
owner or those with whom the former owner has or had family or business
ties, obtains an ownership interest in the project or property; or
+(ii) Recapture the full HOME investment out of the net proceeds, except as provided
in paragraph (a)(4)(ii)(B) of this section.
4(A) Net proceeds means the sales price minus loan repayment and closing costs.
+(B) If the net proceeds are not sufficient to recapture the full HOME investment
plus enable the homeowner to recover the amount of the homeowner's
downpayment, principal payments, and any capital improvement investment,
the participating jurisdiction's recapture provisions may allow the HOME
investment amount that must be recaptured to be reduced. The HOME
investment amount may be reduced pro rata based on the time the
homeowner has owned and occupied the unit measured against the required
affordability period; except that the participating jurisdiction's recapture
provisions may not allow the homeowner to recover more than the amount
of homeowner's downpayment, principal payments, and any capital
improvement investment.
52 �-7
®(C) The HOME investment that is subject to recapture is the HOME assistance
that enabled the first-time homebuyer to buy the dwelling unit. This
includes any HOME assistance, whether a direct subsidy to the homebuyer
or a construction or development subsidy, that reduced the purchase price
from fair market value to an affordable price. The recaptured funds must be
used to assist other first-time homebuyers. If no HOME funds will be
subject to recapture, the provisions at § 92.254(a)(4)(i) apply.
°(D) Upon recapture of the HOME funds used in a single-family, first-time
homebuyer project with two to four units, the affordability period on the
rental units may be terminated at the discretion of the participating
jurisdiction.
+(b) Rehabilitation not involving purchase. Housing that is currently owned by a family qualifies
as affordable housing only if
@(1) The value of the property, after rehabilitation, does not exceed 95% of the median
purchase price for the type of single-family housing (1- to 4-family residence,
condominium unit, combination manufactured home and lot, or manufactured home lot)
for the jurisdiction as determined by HUD, and which may be appealed in accordance
with 24 CFR 203.18b; and
(2) The housing is the principal residence of an owner whose family qualifies as a
low-income family at the time HOME funds are committed to the housing..
'(c) Manufactured housing. Purchase and/or rehabilitation of a manufactured housing unit
qualifies as affordable housing only if, at the time of project completion, the unit
(1) Is situated on a permanent foundation (except when assisting existing unit owners who
rent the lot on which their unit sits);
(2) Is connected to permanent utility hook-ups;
(3) Is located on land that is held in a fee-simple title, land-trust, or long-term ground lease
with a term at least equal to that of the appropriate affordability period;
(4) Meets the construction standards established under 24 CFR 3280 if produced after June
15, 1976. If the unit was produced prior to June 15, 1976, it must comply with
applicable State or local codes;
• (5) Meets all requirements of Section 92.254(a) and (b), as applicable. In cases where the
owner of a manufactured housing unit does not hold fee-simple title to the land on which
the unit is located, the owner may be assisted to purchase the land under paragraph (b)
of this section.
(Approved by the Office of Management and Budget under OMB control number 2501-0013)
§ 92.255 'Mixed-income project.
®(a) Housing that accounts for less than 100 percent of the dwelling units in a project qualifies as
affordable housing if the housing meets the criteria of § 92.252 or § 92.254. Each building
in the project must contain housing that meets the requirements of § 92.252 or § 92.254. See
§ 92.219 for matching contribution requirements concerning mixed-income projects.
53
@(b) For purposes of meeting affordable housing requirements for a project, the dwelling units
counted as affordable housing may be changed over the affordability period, so long as the
total number of affordable housing units remains the same, and the substituted units are, at a
minimum, comparable in terms of size, features, and number of bedrooms to the originally
designated affordable housing units.
(Approved by the Office of Management and Budget under OMB control number 2501-0013.)
§ 92.256 Mixed-use project.
@Housing in a project that is designed in part for uses other than residential use qualifies as
affordable housing if such housing meets the criteria of § 92.252 or § 92.254. A project that
contains, in addition to dwelling units, laundry and community facilities for the exclusive use of
the project residents and their guests, does not constitute a project that is designed in part for uses
other than residential use. Residential living space must constitute at least 51 percent of the
project space for contributions to the non-residential portion of the property to count as match.
§ 92.257 Religious organizations.
HOME funds may not be provided to primarily religious organizations, such as churches, for any
activity including secular activities. In addition, HOME funds may not be used to rehabilitate or
construct housing owned by primarily religious organizations or to assist primarily religious
organizations in acquiring housing. However, HOME funds may be used by a secular entity to
acquire housing from a primarily religious organization, and a primarily religious entity may
transfer title to property to a wholly secular entity and the entity may participate in the HOME
program in accordance with the requirements of this part. The entity may be an existing or newly
established entity (which may be an entity established, but not controlled, by the religious
organization. The completed housing project must be used exclusively by the owner entity for
secular purposes, available to all persons regardless of religion. In particular, there must be no
religious or membership criteria for tenants of the property.
§ 92.258 Limitation on the use of HOME funds with FHA mortgage insurance.
When HOME funds are to be used in connection with housing in which acquisition, new
construction, or rehabilitation is financed with a mortgage insured by HUD under chapter II of
this title, then, for rental housing, the period that the project must remain affordable as provided
in binding commitments meeting the requirements of by § 92.252(a)(5) or, for homeownership,
the applicable period specified in the participating jurisdiction's guidelines established under
§ 92.254(a)(4)(ii), must be equal to the term of the HUD-insured mortgage.
992.259 Elder cottage housing opportunity (ECHO) units.
@(a) General. HOME funds may be used for the initial purchase and initial placement costs of
elder cottage housing opportunity (ECHO) units that meet the requirements of this section,
and that are small, free-standing, barrier-free, energy-efficient, removable, and designed to
be installed adjacent to existing single-family dwellings.
@(b) Eligible owners. The owner of a HOME-assisted ECHO unit may be -
(1) The owner of the single-family host property on which the ECHO unit will be located;
(2) A participating jurisdiction; or
(3) A non-profit organization. •
54
L '
v
®(c) Eligible tenants. During the affordability period, the tenant of a HOME-assisted ECHO unit
must be an elderly, handicapped or disabled family as defined in part 812 of this title, and
must also be a low income family.
®(d) Applicable requirements. The requirements of § 92.252 of this part apply to HOME-assisted
ECHO units, except as specified in this section, including the following requirements:
(1) Only one ECHO unit may be provided per host property.
(2) The ECHO unit owner may choose whether or not to charge the tenant of the ECHO
unit for rent, but if a rent is charged, it must meet the requirements of § 92.252.
(3) The ECHO housing must remain affordable for the period specified in § 92.252(a)(5).
If within the affordability period the original occupant no longer occupies the unit, the
ECHO unit owner must:
(i) Rent the unit to another eligible occupant on site;
(ii) Move the ECHO unit to another site for occupancy by an eligible occupant; or
(iii) If the owner of the ECHO unit is the host property owner, in accordance with the
requirements of § 92.254(a)(4)(ii), the participating jurisdiction must recapture the
HOME investment to be used for additional HOME activities.
(4) The participating jurisdiction has the responsibility to enforce the project requirements
applicable to ECHO units.
Subpart G — Community Housing Development Organizations
§ 92.300 Set-aside for community housing development organizations.
§92.301 Project-specific assistance to community housing development organizations.
§ 92.302 Housing education and organizational support.
§ 92.303 Tenant participation plan.
§ 92.300 Set-aside for community housing development organizations (CHDOs).
+(a) For a period of 24 months after the allocation (including, for a state, funds reallocated under
§ 92.451(c)(2)(i) and, for a unit of general local government, an allocation transferred from a
state under § 92.102(b)) is made available to a participating jurisdiction, the participating
jurisdiction must reserve not less than 15 percent of these funds for investment only in
housing to be developed, sponsored, or owned by community housing development
organizations. The funds must be provided to a community housing development organization
and the funds are reserved when a participating jurisdiction enters into a written agreement
with the community housing development organization. If a community housing development
organization's involvement in a project is as an owner it must have control of the project, as
evidenced by legal title or a valid contract of sale. If it owns the project in partnership, it or
its wholly owned for-profit subsidiary must be the managing general partner. In acting in any
of the capacities specified, the community housing development organization must have
effective management control.
@(b) Each participating jurisdiction must make reasonable efforts to identify community housing
development organizations that are capable, or can reasonably be expected to become
capable, of carrying out elements of the jurisdiction's approved housing strategy and to
encourage such community housing development organizations to do so. If during the first 24
55
•
*(t) Notice of funding. HUD will publish a notice in the Federal Register announcing the
availability of funding under this section, as appropriate. The notice need not include funding
for each of the eligible activities, but may target funding from among the eligible activities.
§ 92.303 Tenant participation plan. -
A community housing development organization that receives assistance under this part must
adhere to a fair lease and grievance procedure approved by the participating jurisdiction and
provide a plan for and follow a program of tenant participation in management decisions.
Subpart H — Other Federal Requirements
§ 92.350 Equal opportunity and fair housing.
§ 92.351 Affirmative marketing.
§ 92.352 Environmental review.
§ 92.353 Displacement, relocation, and acquisition.
§ 92.354 Labor.
§ 92.355 Lead-based paint.
§ 92.356 Conflict of interest.
§ 92.357 Debarment and suspension.
§ 92.358 Flood insurance.
§ 92.359 Executive Order 12372.
§ 92.350 Equal opportunity and fair housing.
. - (a) Equal opportunityy. No person in the United States shall on the grounds of race, color,
national origin, religion, or sex be excluded from participation in, be denied the benefits of,
or be subjected to discrimination under any program or activity funded in whole or in part
with HOME funds. In addition, HOME funds must be made available in accordance with the
following:
(1) The requirements of the Fair Housing Act (42 U.S.C. 3601-20) and implementing
regulations at 24 CFR part 100; Executive Order 11063, as amended by Executive
Order 12259 (3 CFR, 1958-1963 Comp., p. 652 and 3 CFR, 1980 Comp., p. 307)
(Equal Opportunity in Housing) and implementing regulations at 24 CFR part 107; and
title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (Nondiscrimination in
Federally Assisted Programs) and implementing regulations issued at 24 CFR part 1;
(2) The prohibitions against discrimination on the basis of age under the Age Discrimination
Act of 1975 (42 U.S.C. 6101-07) and implementing regulations at 24 CFR part 146, and
the prohibitions against discrimination against handicapped individuals under section 504
of the Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing regulations at 24
CFR part 8;
(3) The requirements of Executive Order 11246 (3 CFR 1964-65, Comp., p. 339) (Equal
Employment Opportunity) and the implementing regulations issued at 41 CFR chapter
60;
*(4) The requirements of section 3 of the Housing and Urban Development Act of 1968 (12
U.S.C. 1701u) the purpose of which is to ensure that the employment and other
economic opportunities generated by Federal financial assistance for housing and
community development programs shall, to the greatest extent feasible, be directed
60
toward low- and very-low-income persons, particularly those who are recipients of
government assistance for housing.
(5) The requirements of Executive Orders 11625 and 12432 (concerning Minority Business
Enterprise), and 12138 (concerning Women's Business Enterprise). Consistent with
HUD's responsibilities under these Orders, each participating jurisdiction must make
efforts to encourage the use of minority and women's business enterprises in connection
with HOME-funded activities. A participating jurisdiction must prescribe procedures
acceptable to HUD to establish and oversee a minority outreach program within its
jurisdiction to ensure the inclusion, to the maximum extent possible, of minorities and
women, and entities owned by minorities and women, including, without limitation, real
estate firms, construction firms, appraisal firms, management firms, financial
institutions, investment banking firms, underwriters, accountants, and providers of legal
services, in all contracts entered into by the participating jurisdiction with such persons
or entities, public and private, in order to facilitate the activities of the participating
jurisdiction to provide affordable housing authorized under this Act or any other federal
housing law applicable to such jurisdiction. Section 85.36(e) of this title describes
actions to be taken by a participating jurisdiction to assure that minority business
enterprises and women business enterprises are used when possible in the procurement
of property and services.
(b) Fair housing. In accordance with the certification made with its housing strategy, each
participating jurisdiction must affirmatively further fair housing. Actions described in
570.904(c) of this title will satisfy this requirement.
(Approved by the Office of Management and Budget under OMB control number 2501-0013)
§ 92.351 Affirmative marketing.
(a) Each participating jurisdiction must adopt affirmative marketing procedures and requirements
for HOME-assisted housing containing 5 or more housing units. Affirmative marketing steps
consist of actions to provide information and otherwise attract eligible persons from all racial,
ethnic, and gender groups in the housing market area to the available housing. (The
affirmative marketing procedures do not apply to families with housing assistance provided
by the PHA or families with tenant based rental assistance provided with HOME funds.) The
participating jurisdiction must annually assess the affirmative marketing program to determine
the success of affirmative marketing actions and any necessary corrective actions. (These
requirements and procedures are comparable to the affirmative marketing•requirements and
procedures for the Rental Rehabilitation Program (24 CFR part 511), and jurisdictions that
have participated in that program should consider basing their requirements and procedures
on their existing Rental Rehabilitation Program requirements and procedures.)
(b) The affirmative marketing requirements and procedures adopted must include:
(1) Methods for informing the public, owners, and potential tenants about federal fair
housing laws and the participating jurisdiction's affirmative marketing policy (e.g., the
use of the Equal Housing Opportunity logotype or slogan in press releases and
solicitations for owners, and written communication to fair housing and other groups);
(2) Requirements and practices each owner must adhere to in order to carry out the
participating jurisdiction's affirmative marketing procedures and requirements (e.g., use
61
of commercial media, use of community contacts, use of the Equal Housing Opportunity
logotype or slogan, and display of fair housing poster);
(3) Procedures to be used by owners to inform and solicit applications from persons in the
housing market area who are not likely to apply for the housing without special outreach
(e.g., use of community organizations, places of worship, employment centers, fair
housing groups, or housing counseling agencies);
(4) Records that will be kept describing actions taken by the participating jurisdiction and by
owners to affirmatively market units and records to assess the results of these actions;
and
(5) A description of how the participating jurisdiction will assess the success of affirmative
marketing actions and what corrective actions will be taken where affirmative marketing
requirements are not met.
(c) A state that distributes HOME funds to units of general local government must require each
unit of general local government to adopt affirmative marketing procedures and requirements
that meet the requirement in paragraphs (a) and (b) of this section.
§ 92.352 Environmental review.
(a) General. The environmental effects of each activity carried out with HOME funds must be
assessed in accordance with the provisions of the National Environmental Policy Act of 1969
(NEPA) and the related authorities listed in HUD's implementing regulations at 24 CFR parts
50 and 58.
(b) Responsibility for review.
(1) A participating jurisdiction must assume responsibility for environmental review,
decisionmaking, and action for each activity that it carries out with HOME funds, in
• accordance with the requirements imposed on a recipient under 24 CFR part 58. In
accordance with part 58, the participating jurisdiction must carry out the environmental
review of an activity and obtain approval of its request for release of funds before
HOME funds are committed for the activity.
(2) A state participating jurisdiction must also assume responsibility for approval of requests
for release of its HOME funds.
(3) HUD will perform the environmental review, in accordance with 24 CFR part 50, for a
competitively awarded application for HOME funds submitted by an entity that is not a
participating jurisdiction.
§ 92.353 Displacement, relocation, and acquisition.
(a) Minimizing displacement. Consistent with the other goals and objectives of this part, the •
participating jurisdiction must ensure that it has taken all reasonable steps to minimize the
displacement of persons (families, individuals, businesses, nonprofit organizations, and
farms) as a result of a project assisted with HOME funds. To the extent feasible, residential
tenants must be provided a reasonable opportunity to lease and occupy a suitable, decent,
safe, sanitary, and affordable dwelling unit in the building/complex upon completion of the
project.
62 B
(b) Temporary relocation. The following policies cover residential tenants who will not be
required to move permanently but who must relocate temporarily for the project. Such
tenants must be provided:
(1) Reimbursement for all reasonable out-of-pocket expenses incurred in connection with the
temporary relocation, including the cost of moving to and from the temporarily occupied
housing and any increase in monthly rent/utility costs.
(2) Appropriate advisory services, including reasonable advance written notice of
(i) The date and approximate duration of the temporary relocation;
(ii) The location of the suitable, decent, safe, and sanitary dwelling to be made
available for the temporary period;
(iii) The terms and conditions under which the tenant may lease and occupy a suitable,
decent, safe, and sanitary dwelling in the building/complex upon completion of the
project; and
(iv) The provisions of paragraph (b)(1) of this section.
(c) Relocation assistance for displaced persons.
(1) General. A displaced person (defined in paragraph (c)(2) of this section) must be
provided relocation assistance at the levels described in, and in accordance with the
requirements of the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 (URA) (42 U.S.C. 4201-4655) and 49 CFR part 24. A "displaced
person" must be advised of his or her rights under the Fair Housing Act (42 U.S.C.
3601-19) and, if the comparable replacement dwelling used to establish the amount of the
replacement housing payment to be provided to a minority person is located in an area of
minority concentration, the minority person also must be given, if possible, referrals to
comparable and suitable, decent, safe, and sanitary replacement dwellings not located in
such areas.
(2) Displaced Person.
(i) For purposes of paragraph (c) of this section, the term displaced person means a
person (family individual, business, nonprofit organization, or farm, including any
corporation, partnership or association) that moves from real property or moves
personal property from real property, permanently, as a direct result of acquisition,
rehabilitation, or demolition for a project assisted with HOME funds. This includes
any permanent, involuntary move for an assisted project, including any permanent
move from the real property that is made:
(A) After notice by the owner to move permanently from the property, if the move
occurs on or after:
(1) The date of the submission of an application to the participating
jurisdiction or HUD, if the applicant has site control and the application is
later approved; or
(2) The date the jurisdiction approves the applicable site, if the applicant does
not have site control at the time of the application; or
' 4,
(B) Before the date described in paragraph (c)(2)(i)(A) of this section, if the
jurisdiction or HUD determines that the displacement resulted directly from
acquisition, rehabilitation, or demolition for the project; or
(C) By a tenant-occupant of a dwelling unit, if any one of the following three
situations occurs:
(1) The tenant moves after execution of the agreement covering the
acquisition, rehabilitation, or demolition and the move occurs before the
tenant is provided written notice offering the tenant the opportunity to
lease and occupy a suitable, decent, safe, and sanitary dwelling in the
same building/complex upon completion of the project under reasonable
terms and conditions. Such reasonable terms and conditions must include a
term of at least one year at a monthly rent and estimated average monthly
utility costs that do not exceed the greater of
(a) The tenant's monthly rent before such agreement and estimated
average monthly utility costs; or
(ii) The total tenant payment, as determined under 24 CFR 813.107, if
the tenant is low-income, or 30 percent of gross household income, if
the tenant is not low-income; or
(2) The tenant is required to relocate temporarily, does not return to the
building/complex, and either
(t) The tenant is not offered payment for all reasonable out-of-pocket
expenses incurred in connection with the temporary relocation; or
(ii) Other conditions of the temporary relocation are not reasonable; or
(3) The tenant is required to move to another dwelling unit in the same
building/complex but is not offered reimbursement for all reasonable
out-of-pocket expenses incurred in connection with the move, or other
conditions of the move are not reasonable.
(ii) Notwithstanding paragraph (c)(2)(i) of this section, a person does not qualify as a
displaced person if:
(A) The person has been evicted for cause based upon a serious or repeated
violation of the terms and conditions of the lease or occupancy agreement,
violation of applicable federal, state or local law, or other good cause, and the
participating jurisdiction determines that the eviction was not undertaken for
the purpose of evading the obligation to provide relocation assistance. The
effective date of any termination or refusal to renew must be preceded by at
least 30 days advance written notice to the tenant specifying the grounds for
the action.
(B) The person moved into the property after the submission of the application
but, before signing a lease and commencing occupancy, was provided written
notice of the project, its possible impact on the person (e.g., the person may
be displaced, temporarily relocated, incur a rent increase), and the fact that
64
the person would not qualify as a "displaced person" (or for any assistance
under this section) as a result of the project;
(C) The person is ineligible under 49 CFR 24.2(g)(2); or
(D) HUD determines that the person was not displaced as a direct result of
acquisition, rehabilitation, or demolition for the project.
(iii) The jurisdiction may, at any time, ask HUD to determine whether a displacement
is or would be covered by this rule.
(3) Initiation of negotiations. For purposes of determining the formula for computing
replacement housing assistance to be provided under paragraph (c) of this section to a
tenant displaced from a dwelling as a direct result of private-owner rehabilitation,
demolition or acquisition of the real property, the term initiation of negotiations means
the execution of the agreement covering the acquisition, rehabilitation, or demolition.
(d) Optional relocation assistance. The participating jurisdiction may provide relocation
payments and other relocation assistance to families, individuals, businesses, nonprofit
organizations, and farms displaced by a project assisted with HOME funds where the
displacement is riot subject to paragraph (c) of this section. The jurisdiction may also provide
relocation assistance to persons covered under paragraph (c) of this section beyond that
required. For any such assistance that is not required by state or local law, the jurisdiction
must adopt a written policy available to the public that describes the optional relocation
assistance that it has elected to furnish and provides for equal relocation assistance within
• each class of displaced persons.
(e) Block Grant funds. If Community Development Block Grant funds are used to pay part of the
cost of a HOME project other than the general planning and administrative costs eligible
under 24 CFR 570.205 and 570.206, or optional relocation costs eligible under 24 CFR
570.201(i)(2), the project is subject to the requirements of the Housing and Community
Development Act of 1974. (This includes the section 104(d) requirements to provide
relocation assistance and replace low/moderate-income housing as described at 24 CFR
570.606(c) (Entitlement Program and HUD-Administered Small Cities Program) and 24 CFR
570.496a(c) (State CDBG Program).)
(f) Real property acquisition requirements. The acquisition of real property for a project is
subject to the URA and the requirements of 49 CFR part 24, subpart B.
(g) Appeals. A person who disagrees with the participating jurisdiction's determination
concerning whether the person qualifies as a displaced person, or the amount of relocation
assistance for which the person may be eligible, may file a written appeal of that
determination with the jurisdiction. A low-income person who is dissatisfied with the
jurisdiction's determination on his or her appeal may submit a written request for review of
that determination to the HUD Field Office.
(h) Responsibility of participating jurisdiction.
(1) The jurisdiction must certify that it will comply with the URA, the regulations at 49
CFR part 24, and the requirements of this section, and must ensure such compliance
notwithstanding any third party's contractual obligation to the jurisdiction to comply.
65
(2) The cost of required relocation assistance is an eligible project cost. This cost also may
be paid from state or local funds, or funds available from other sources.
(Approved by the Office of Management and Budget under OMB control number 2501-0013)
§ 92.354 Labor.
®(a) General.
(1) Every contract for the construction (rehabilitation or new construction) of housing that
includes 12 or more units assisted with HOME funds must contain a provision requiring
the payment of not less than the wages prevailing in the locality, as predetermined by
the Secretary of Labor pursuant to the Davis-Bacon Act (40 U.S.C. 276a - 276a-5), to
all laborers and mechanics employed in the development of any part of the housing.
Such contracts must also be subject to the overtime provisions, as applicable, of the
Contract Work Hours and Safety Standards Act (40 U.S.C. 327 - 332).
(2) The contract for construction must contain these wage provisions if HOME funds are
used for anv project costs (as defined in §92.206), including construction or
nonconstruction costs, of housing with 12 or more HOME-assisted units. Where 12 or
more units in a project are assisted under this part. the wage provisions must be
contained in the construction contract so as to apply to all laborers and mechanics
employed in the development of the entire project. as defined in § 92.2, including
portions other than the assisted units. If HOME funds are only used to assist first-time
homebuyers to acquire single-family housing and not for any other project costs, the
wage provisions apply to the construction of housing containing 12 or more units when
there is a written agreement with the owner or developer of the housing that the HOME
funds will be used to assist first-time homebuyers to buy the housing.
(3) Participating jurisdictions, contractors, subcontractors, and other participants must
comply with regulations issued under these Acts and with other federal laws and
regulations pertaining to labor standards and HUD Handbook 1344.1 (Federal Labor
Standards Compliance in Housing and Community Development Programs), as
applicable. Participating jurisdictions must require certification as to compliance with
the provisions of this section before making any payment under such contract.
(b) Volunteers. The prevailing wage provisions of paragraph (a) of this section do not apply to an
individual who receives no compensation or is paid expenses, reasonable benefits, or a
nominal fee to perform the services for which the individual volunteered and who is not
otherwise employed at any time in the construction work.
(c) Sweat equity. The prevailing wage provisions of paragraph (a) of this section do not apply to
members of an eligible family who provide labor in exchange for acquisition of a property
for homeownership or provide labor in lieu of, or as a supplement to, rent payments.
(Approved by the Office of Management and Budget under OMB control number 2501-0013)
§ 92.355 Lead-based paint.
Housing assisted with HOME funds constitutes HUD-associated housing for the purpose of the
Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821, et seq.) and is, therefore, subject to
24 CFR part 35. Unless otherwise provided, participating jurisdictions are responsible for testing
and abatement activities.
66
� �7
(Approved by the Office of Management and Budget under OMB control number 2501-0013)
§ 92.356 Conflict of interest.
(a) Applicability.
(1) In the procurement of property and services by participating jurisdictions, state
recipients, and subrecipients, the conflict of interest provisions in 24 CFR 85.36 and
OMB Circular A-110, respectively, apply.
(2) In all cases not governed by 24 CFR 85.36 and OMB Circular A-110, the provisions of
this section applies. These cases include the acquisition and disposition of real property
and the provision of assistance by the participating jurisdiction, by the state recipient, by
subrecipients, or to individuals, housing developers, and other private entities under
eligible activities which authorize such assistance (e.g., rehabilitation of housing).'
(b) Conflicts prohibited. No persons described in paragraph (c) of this section who exercise or
have exercised any functions or responsibilities with respect to activities assisted with HOME
funds or who are in a position to participate in a decisionmaking process or gain inside
information with regard to these activities, may obtain a financial interest or benefit from,a
HOME assisted activity, or have 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.
(c) Persons covered. The conflict of interest provisions of paragraph (b) of this section apply to
any person who is an employee, agent, consultant, officer, or elected official or appointed
• official of the participating jurisdiction, state recipient, or subrecipient which are receiving
HOME funds.
(d) Exceptions: Threshold requirements. Upon the written request of the participating jurisdiction,
HUD may grant an exception to the provisions of paragraph (b) of this section on a
case-by-case basis when it determines that the exception will serve to further the purposes of
the HOME Investment Partnerships Program and the effective and efficient administration of
the participating jurisdiction's program or project. An exception may be considered only after
the participating jurisdiction has provided the following:
(1) A disclosure of the nature of the conflict, accompanied by an assurance that there has
been public disclosure of the conflict and a description of how the public disclosure was
made; and
(2) An opinion of the participating jurisdiction's attorney that the interest for which the
exception is sought would not violate state or local law.
(e) Factors to be considered for exceptions. In determining whether to grant a requested
exception after the participating jurisdiction has satisfactorily met the requirements of
paragraph (d) of this section, HUD will consider the cumulative effect of the following
factors, where applicable:
(1) Whether the exception would provide a significant cost benefit or an essential degree of
expertise to the program or project which would otherwise not be available;.
3 See § 92.505 concerning the applicability of OMB Circulars.
67
(2) Whether the person affected is a member of a group or class of low-income persons
intended to be the beneficiaries of the assisted activity, and the exception will permit
such person to receive generally the same interests or benefits as are being made
available or provided to the group or class;
(3) Whether the affected person has withdrawn from his or her functions or responsibilities,
or the decisionmaking process with respect to the specific assisted activity in question;
(4) Whether the interest or benefit was present before the affected person was in a position
as described in paragraph (c) of this section;
(5) Whether undue hardship will result either to the participating jurisdiction or the person
affected when weighed against the public interest served by avoiding the prohibited
conflict; and
(6) Any other relevant considerations.
§ 92.357 Debarment and suspension.
As required by 24 CFR part 24, each participating jurisdiction must require participants in lower
tier covered transactions to include the certification in appendix B of 24 CFR part 24 (that neither
it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible,
or voluntarily excluded from participation from the covered transaction) in any proposal submitted
in connection with the lower tier transactions. A participating jurisdiction may rely on the
certification, unless it knows the certification is erroneous.
(Approved by the Office of Management and Budget under OMB control number 2501-0013)
§ 92.358 Flood insurance.
(a) Under the Flood Disaster Protection Act of 1973 (42 U.S.C. 4001-4128), HOME funds may
not be used with respect to the acquisition, new construction, or rehabilitation of a project
located in an area identified by the Federal Emergency Management Agency (FEMA) as
having special flood hazards, unless:
(1) The community in which the area is situated is participating in the National Flood
Insurance Program (see 44 CFR parts 59 through 79), or less than a year has passed
since FEMA notification regarding such hazards; and
(2) Flood insurance is obtained as a condition of approval of the commitment.
(b) Participating jurisdictions located in an area identified by FEMA as having special flood
ha7ards are responsible for assuring that flood insurance under the National Flood Insurance
Program is obtained and maintained.
(c) This section does not apply to HOME funds provided to a state.
§ 92.359 Executive Order 12372.
(a) General. Executive Order 12372, as amended by Executive Order 12416 (3 CFR, 1982
Comp., p. 197 and 3 CFR, 1983 Comp., p. 186) (Intergovernmental Review of Federal
Programs) and the Department's implementing regulations at 24 CFR part 52, allow each
state to establish its own process for review and comment on proposed federal financial
assistance programs.
68 L rE_
• Federal Labor Standards Provisions U.S. Department of Housing OIN
and urban D.v.+uPe+ent. air
: .. .
Applicability
The Project or Program to which the construction work covered by this HUD or its designee shall refer the questions,including the'views of all
contract pertains is being assisted by the United States of America and the interested parties and the recommendation of HUD or its designee.to the
following Federal Labor Standards Provisions are included in this Contract Administrator for determination.The Administrator,or an authorized repre-
pursuant to the provisions applicable to such Federal assistance. sentative,will issue a determination within 30 days of receipt and so advise
A.1.(I)Minimum Wages.All laborers and mechanics employed or work- HUD or its Cesignee or will notify HUD or its designee within the 30-day
ing upon the site of the work(or under the United States Housing Act of period that additional time is necessary.(Approved by the Office of Man-
1937 or under the Housing Act of 1949 in the construction or development agement and Budget under OMB Control Number 1215-0140.)
of the project),will be paid unconditionally and not less often than once a (d)The wage rate(including fringe benefits where appropriate) •
week and without subsequent deduction or rebate on any account(except determined pursuant to subparagraphs(1Xb)or(c)of this paragraph,shall
such payroll deductions as are permitted by regulations issued by the • be paid to all workers performing work in the Nagaficanon under this con-
Secretary of Labor under the Copeland Act(29 CFR Part 3),the full amount tract from the first day on which work is performed in the classification.
of wages and bona fide fringe benefits(or cash equivalents.thereof)due at (iii)Whenever the minimum wage rate prescribed in the contract for a
time of payment computed at rates not Less than those contained in the class of laborers or mechanics includes a fringe benefit which is not
wage determination of the Secretary of Labor which is attached hereto and expressed as an hourly rate,the contractor shall either pay the benefit as I
made a part hereof,regardless of any contractural relationship Yhi—h may stated in the wage determination or shall pay another bona tide fringe
be alleged to exist between the contractor and such laborers and benefit or an hourly cash equivalent thereof.
mechanics.Contributions made or costs reasonably anticipated for bona (iv)If the contractor does not make payments to a trustee or other third
fide fringe benefits under Section 1(bX2)of the Davis-Bacon Act on behalf person,the contractor may consider as part of the wages of any laborer or.
of laborers or mechanics are considered wages paid to such laborers or mechanic the amount of any costs reasonably anticipated in providing
mechanics.subject to the provisions of 29 CFR•5.5(aX1Xiv):also,regular bona fide fringe benefits under a plan or program,Provided.That the
contributions made or costs incurred for more than a weekly period(but Secretary of Labor has found,upon the written request of the contractor.
not less often than quarterly)under plans,funds,or programs,which cover that the applicable standards of the Davis-Bacon Act have been met.The
the particular weekly period,are deemed to be constructively made or Secretary of Labor may require the contractor to set aside in a separate
incurred during such weekly period. account assets for the meeting of obligations under the plan or program.
Such laborers and mechanics shall be paid the appropriate wage rate (Approved by the Office of Management and Budget under-OMB Control
and fringe benefits on the wage determination for the classification of work Number 1215-0140.)
actually performed,without regard to skill,except as provided in 29 CFR 2.Withholding.HUD or its designee shall upon its own action or upon
Part 5.5(a)(4).Laborers or mechanics performing work in more than one. • written request of an authorized representative of the Department of Labor
classification may be compensated at the rate specified for each classifica- withhold or cause to be withheld from the contractor under this contract or
ton for the time acs.tally worked therein:Provided.That the employer's pay- any other Federal contract with the same prime contractor•or any other
roll records accurately set forth the time spent in each classification in Federally-assisted contract subject to Davis-Bacon prevailing wage
which work is performed.The wage determination(including any additional requirements.which is held by the same prime contractor so much of the
classification and wage rates conformed under 29 CFR Part 5.5(a)(1)(ii)and accrued payments or advances as may be considered necessary to pay
the Davis-Bacon poster(WH-1321)shall be posted at all times by the con- laborers and mechanics,including apprentices,trainees and helpers.
tractor and its subcontractors at the site of the work in a prominent and • employed by the contractor or any subcontractor the full amount of wages
accessible place where it can be easily seen by the workers. required by the contract.In the event of failure to pay any laborer or
(ii)(a)Any class of laborers or mechanics which is not listed in the . mechanic,including any apprentice,trainee or helper,employed or working
wage determination and which is to be employed under the contract shall on the site of the work(or under the United States Housing Act of 1937 or
be classified in conformance with the wage determination.HUD shall under the Housing Act of 1949 in the construction or development of the
approve an additional classification and wage rate and fringe benefits project),all or part of the wages required by the contract.HUO or its desig-
therefore only when the following criteria have been met nee may.after written notice to the contractor,sponsor,applicant.or owner.
(1)The work to be performed by the classification requested is not take such action as may be necessary to cause the suspension of any
performed by a classification in the wage determination:and further payment•advance.or guarantee of funds until such violations have
(2)The classification is utilized in the area by the construction ceased.HUD or its designee may,after written notice to the contractor.dis-
industry:and burse such amounts withheld for and on account of the contractor or sub-
(3)The proposed wage rate,including any bona fide fringe bene- contractor to the respective employees to whom they are due.The Comp-
fits,bears a reasonable relationship to the wage rates contained in the troller General shall make such disbursements in the case of direct
wage determination. Davis-Bacon Act contracts. -
(b)If the contractor and the laborers and mechanics to be employed 3.(I)Payrolls and basic records.Payrolls and basic records relating
in the classification(if known),or their representatives,and HUD or its thereto shall be maintained by the contractor during the course of the work
designee agree on the classification and wage rate(including the amount preserved for a period of three years thereafter for all laborers and
designated for fringe benefits where appropriate),a report of the action mechanics working at the site of the work(or under the United States
taken shall be sent by HUD or its designee to the Administrator of the Wage Housing Act of 1937.or under the Housing Act of 1949.in the construction
and Hour Division.Employment Standards Administration.U.S.Department or development of the project).Such records shall contain the name.
of labor,Washington.D.C.20210.The Administrator,or an authorized address.and social security number of each such worker•his or her cor-
representative.will approve,modify,or disapprove every additional ciassifi- rect classification,hourly rates of wages paid(including rates of contnbu-
cation action within 30 days of receipt and so advise HUD or its designee tons or costs anticipated for bona fide fringe benefits or cash equivalents
or will notify HUD or its designee within the 30-day period that additional thereof of the types described in Section 1(b)(2)(B)of the Davis-b,con Act). 1
time is necessary.(Approved by the Office of Management and Budget daily and weekly number of hours worked,deductions made and actual
under OMB control number 1215-0140.) wages paid.Whenever the Secretary of Labor has found under 29 CFR 5.5
(c)In the event the contractor,the laborers or mechanics to be (a)(1Xiv)that the wages of any laborer or mechanic include the amount of
employed in the classification or their representatives,and HUD or its any costs reasonably anticipated in providing benefits under a plan or pro-
designee do not agree on the proposed classification and wage rate gram described in Section 1(b)(2)(B)of the Davis-Bacon Act the contractor
(including the amount designated for fringe benefits,where appropriate), shall maintain records which show that the commitment to provide such
HUD-4010(2•84`1
Previous Edition is Obsolete (lFH:B4 .17• •
,
• program is financially responsible, apprentice.The allowable ratio of apprentices to journeymen on
to the
the job site
-benefitsthat it enforceable.that plan been program.Any
and the plan or program has communicated in writing to the in any craft c.ass+fication shall not be greater than the ratio pen
- contractor as to the
pat
laborers oractul.mechanics affected,and in records
such benefits.Contractors, worker listed on a payrorll at an apprentice agee work force under the erate,whos not registered
employingp or the prenl cost Incurredproviding
apprentices or trainees under approved programs shall maintain or otherwise emolcyed as stated above,shall be paid not less than t e
licable wage.rate on
cwrittenation evidence of the programs,
theten registrationo capprenticeship of the apprentices and rams dtranees. op actually performed. e wage determination for the classificatton of
addition,any apprentice perforrmng k on
am
caation of e wager srin the
the ratiosby and wage rates
prescribed
and Budget applicable
nder OMB Control shall be site
paid not less than the-applicable wage rate on he wage determi- .
(Approved by the 40 andn of Management .nation for the-work actually performed.Where a contractor is performing
Numbers)The c1 nt 1215-0017.)lsubmit
(ii)(a)The contractor shall sub weekly for each week in which any -construction on a Project in a locality other than that iri which its program is
contract work is performed a copy of all payrolls to HUD or its designee if registered.
the ratios r )specified-inand wetese(expressed
or rden ge5 f se jo r-
the agency is a party to the contract but if the agency is eat such a party. Y snail be observed.Every apprenctice must be paid at not
payrolls to the applicant sponsor.or owner; tered programprogram for the-apprentices
atno
the contractor will submit the rolls less than the rate specified in the registered
su the case may et for ccura elyion to omp or its ll of the i The aty expressed as a percentage of the journeymen hourly rate
submitted shall set out accurately and completely all of the information level of progress.
required to be maintained under 29 CFR Part 5.5(a)(3)(i).This information• specified in the applicable wage determination.Apprentices shall be paid
fringe benefits.
ram does not specify g
may be submitted in any form desired.Optional Form Wn a dent oavailable
IDocu program.benefits
heln accordance with aPPrenticeship program-provisions of the apprenticeship
for this purposederland u be p 02 ased-005 from the.U.S.Government Printing apprentices must te paid the full amount of fringe
menu(Federal Stock Number 029-�nm c tractor is responsible for the wage determination for the applicable classification. f the Admnefits inistrator
strator
Office,Washington.o copies
of 20402.ThePdetermines that a
submission of copies of payrolls by all subcontractors.(Approved by the classification,:fnngedifferent
srhalf be paid in evails tor accordancewith that determination.In
applicable apprentice .
Budget under OMB Control Number the event the Bureau of Apprenticeship and Training.or a State Appren-
Office of Management and .• of an
1215 0149) recognized by the Bureau.withdraws approval
(b)Each pastel)submitted shall be accompanied by a"Statement of ticeship Agency eo9 will no
Compliance."sign by the contractorm subcontractor mplloyed uder'he.nt apprentices at less than1the•applcab erpredetermned rate for the pero mitted .
mho pays ando supervises the payment of the personsperformed until an acceptable program is approved.
ontract shall certify y roe following:
(1)That the payroll for the payroll period contains the information (i)Trainees.Except as provided in 29 CFR 5.16.trainees will not be
tormed.unless they are employed'pursuant to and individuall formalg recegistered
-quired to be maintained under 29 CFR Part 5.5(a)(3)(i)and that such permitted to work at less than the predetermined rate for the workper;
-formation ieh correct
and complete:om approval:evidenced by
(2)That each laborer or mechanic(including each helper. _ a program which has received prior app _
apprentice.and trainee)employed on the
ed,withoct ut rebate,either uring the oll directlly stranon.The ratio of tra nees to joion by the U.S.Department of urneymenpon the and
Training
s,allnoAtbeni
ias been proved'b the Employment and
paid the fato weekly wages_canned.
deductions as set Training Administration.Every trainee-must be paid at not less than the rate
•
or indirectly,and that no deductions have been made either directly-or tent- greater-than permitted under the plan app
forth from the full wages earned,other than permissablespecified in the approved program for the trainee's levei of progress.
•
forth in 29 CFR Part3: percentage of the ourneyman hourly rate specified in the
(3)That each laborer or mechanic has been paid not less titan the -expressed as a pen centag I
applicable wage determine- accordance with the provisions of the trainee trainees program.If the`the ee pro-
applicable wage rates and fringe benefits or cash equivalents for the eras= applicable wage determination.Trainees shall be paid fringe benefits n
s shall
aid
non i work to the as specified in the PP gram does not mention fringe benefits:non incorporatedhe into submission contract
the
Administrator of the Wage and Hour Division that there�is an
(c)The weakly submission of a properly executed certification set amount of fringe benefits listed on the wage determination unless
•
apprenticeship noeship program Wa eandassOc ated with the corresponding determinesth ; thee is an
forth requirementon the reverseforsubmission side of Optional Form WH-347ofCompliance"shail satisfy
required the
wage rate on the wage determination which provides for less than full
paragraph
for of the"Statement of by PP
paragraph The
lsiof this section•
subject the fringe benefits for apprentices.Any employee listed en the pastor ata
f
(tod)T r u con2tion of any of the above certificationsionmay 1
1 of the United States Code. approved by the Employment and Training Administration shall be paid not
•
contractor or subcontractor to civil or criminal prosecution under Section . trainee rate who is not registered and participating in a training plan
1001 of Title18 and Section be of acte 3 applicable wage rate on the wage determination for the work
(i ) copying.or actually performed.In addition,any trainee performing work on the job site
u The cent2ctor or subcontractor shall make the records required less than the
under paragraph A 3.(i)of this section available for inspection.• such representatives to interview. not less than the applicable wagerateo n the w g Employment determination
o for the
transcription by authorized representatives of HUO or its designee or the in excess of the ratio permitted'under the registered program shall be paid
employees
Department uf ing working
shallo permit p
of a training contractor will
employees during working hours on the job.If the contractor or subcon- work actually performed.In the e
dmin-
longer be permitteddaws ne trainees at less than program.the the applicable will noor-
tractor fails to submit the required records or to make them available,HUD istration withdraws approval
to cause the sus- mined rate for the work performed until an acceptable program is
or its designee r may,after action n a mays to the contractor.sponsor.appli- 9
cantor owany take such payment advance,or guarantee of funds:.Further- approved.
more,
failureof any further
ui E ual'employment opportunity.The utilization of apprentices,
trainees and journeymen under this part shall be in conformity with the
re
m orrisavailable may the required records upon tionst or to make such
q
CFRFrPs Part5. may be grounds for debarment action pursuant to 29
• 2qual•employment dpporturtiry requirements of Executive Order 11246,as
5.12. amended.and 29 CFR•Part 30.
•
4.(i)Apprentices and Trainees.Apprentices.Apprentices will be per-
5.Compliance with Copeland'Act requirements.The contractor shall
employedpursuant to and individually registered in a comply with the requirements of 29 CFR Part 3 which are incorporated by
miffed to work at less than the predetermined rate for the work they per-
ro bonafi when they are amp Y in this contract
fide apprenticeship program registered with the U.S.Department of reference 6.Subcontracts.The contractor or subcontractor will insert in any sub-,
aeon,Employment and Training entice stratibn,Bureau of Apprenticeship
and Training.or a State Apprenticeship Agency recognized by the. contracts the•clauses contained in 29 CFR ee may.b5.5(e)(rothr ou (10c and
such
or its
9ureau,or if a person is employed in his or her first 90 days of probationary oequirether !and also a causes as D use rrequire g the subco tractors to include these
employment as apprenticetn ie such
rog an apprenticeship engram,who is
• e prime
Apprenticeship Agency responsible for the compliance by any subcontractor or lower tier subcon-
got individually registered in the Program,but who hasbeen certified by the clauses in any lower tier subcontracts. 9 CFR Part contractor
Sracter shallbe.
•3here ofp Apprenticeship to and Trainingefr r a State • tractor with all the contract claus
where appropriate)to be eligible for probationary employment as an
HUD-4O1O(2-84)
7.,Contracte termination:debarment.A breach of the contract clauses in compensation at a rate not Tess than one and one-half times the
29 CFR 5.5 may be grounds for termination of the contract.and for debar- basic rate of pay for all hours worked in excess of forty hours
memt as a contractor 2r and a subcontractor as provided in 29 CFR 5.1 in such workweek.
8.Compliance with Davis-Bacon and Related Act Requirements;All rul- (2)Violation;liability for unpaid wages;liquidated damages.In!^e
• • ings and interpretations of the Davis-Bacon and Related Acts contained in event of any violation of the clause set forth in subparagraph(1)of th:s
29 CFR Parts 1.3.and 5 are herein incorporated by reference in this paragraph.the contractor and any subcontractor responsible therefor snail
contract be liable for the unpaid wages.In addition,such contractor and subcon-
9.Disputes concerning labor standards.Disputes arising out of the labor tractor shall be liable to the United States(in the case of work done uncle-
standards provisions of this contract shall not be subject to the general contract for the District of Columbia or a territory,to such District or to st.ch
disputes clause of this contract Such disputes shall be resolved in accor- territory),for liquidated damages.Such liquidated damages shall be corn-
dance with the procedures of the Department of Labor set forth in 29 CFR puted with respect to each individual laborer or mechanic,including
Parts 5.6,and 7.Disputes within the meaning of this clause include dis- watchmen and guards,employed in violation of the clause set forth in si---
putes between the contractor(or any of its subcontractors)and HUD or its paragraph(1)of this paragraph,in the sum of 510 for each calendar day dn
designee,the U.S.Department of Labor.or the employees or their which such individual was required or permitted to work in excess of
representatives. the standard workweek of forty hours without payment of the
10.(i)Certification of Eligibility.By entering into this contract the con- overtime wages required by the clause set forth in subpara-
tractor certifies that neither it(nor he or she)nor any person or firm who graph (1) of this paragraph.
has an interest in the contractor's firm is a person or firm ineligible to be (3)Withholding for unpaid wages and liquidated damages. HUD or ts
awarded Government contracts by virtue of Section 3(a)of the Davis- designee shall upon its own action or upon written request of an autro-
Bacon Act or 29 CFR 5.12(a)(1)or to be awarded HUD contrac5 or partici- rized representative of the Department of Labor withhold or cause to oe
pate in HUD programs pursuant to 24 CFR Part 24. withheld.from any moneys payable on account of work performed by the
(ii)No part of this contract shall be subcontracted to any person or firm contractor or subcontractor under any such contract or any other Federa.
ineligible for award of a Government contract by virtue of Section 3(a)of contract with the same prime contract or any other Federally-assisted con-
the Davis-Bacon Act or 29 CFR 5.12(a)(1)or to be awarded HUD contracts tract subject to the Contract Work Hours and Safety Standards Act whic-
or participate in HUD programs pursuant to 24 CFR Part 24. is held by the same prime contractor such sums as may be determined to
(iii)The penalty for making false statements is prescribed in the U.S. be necessary to satisfy any liabilities of such contractor or subcontracto-
Criminal Code.18 U.S.C. 1001.Additionally.U.S.Crimnal Code.Section for unpaid wages and liquidated damages as provided in the clause set
1010.Title 18•U.S.C.."Federal Housing Administration transactions".pro- forth in subparagraph(2)of this paragraph.
vides in part"Whoever,for the purpose of. . .influencing in any way the (4)Subcontracts.The contractor or subcontractor shall insert
action of such Administration. . . makes,utters or publishes any statement subcontracts the clauses set forth in subparagraph(1)through(4)cf:pis
knowing the same to be false. . . shall be fined not more than S5.000 or paragraph and also a clause requiring the subcontractors to include:hese
imprisoned not more than two years.or both." clauses in any lower tier subcontracts.The prime contractor shall be
11.Complaints, Proceedings,or Testimony by Employees.No laborer or responsible for compliance by any subcontractor or lower tier subcc-tra:-
mechanic to whom the wage.salary,or other labor standards provisions of tor with the clauses set forth in subparagraphs(1)through(4)cf this
this Contract are applicable shall be discharged or in any other manner paragraph.
discriminated against by the Contractor or any subcontractor because such C.Health and Safety
employee h'as filed any complaint or instituted or caused to be instituted (1)No laborer or mechanic shall be required to work in surroundings
any proceeding or has testified or is about to testify in any proceeding or under working conditions which are unsanitary,hazardous,or danger-
under or relating to the labor standards applicable under this Contract to ous to his health and safety as determined under construction safety arc
his employer. health standards promulgated by the Secretary of Labor by regulation.
8 Contract Work Hours and Safety Standards Act.As used in this para- (2)The Contractor shall comply with all regulations issued by the
graph.the terms"laborers"and"mechanics"include watchmen and Secretary of Labor pursuant to Title 29 Part 1926(formerly part 1518)anc
guards. failure to comply may result in imposition of sanctions pursuant to the Con-
(1) Overtime requirements. No contractor or subcontractor tract Work Hours and Safety Standards Act(Public Law 91-54.83 Stat 96).
contracting for any part of the contract work which may require
or involve the employment of laborers or mechanics shal T require (3)The Contractor shall include the provisions of this Article in ever;
or permit any such laborer or mechanic in any workweek in which. subcontract so that such provisions will be binding on each subcontractor.
he or she is employed on such work to work in excess of forty The Contractor shall take such action with respect to any subcontract as
hours in such workweek unless such laborer or mechanic receives the Secretary of Housing and Urban Development or the Secretary cf Lacor
shall direct as a means of enforcing such provisions.
•
HUD-4010(2.84)
L
EXHIBIT "F"
MINORITY BUSINESS & WOMEN BUSINESS
ENTERPRISE PLAN
r
CITY OF OMAHA
:PLANNING,pEPARTMENT
SEPTEMBER 1992
L
PLANNING.DEPARTMENT
CITY OF OMAHA
MINORITY.BUSINESS/WOMEN:BUSINESS ENTERPRISE PLAN
INTRODUCTION ,
Minority and women business sectors play an important part in Omaha's overall plans for future
growth, progress;.and prosperity. It is vital to the City's economic condition and well-being that
minority and women businesses expand, thrive and prosper, generating. economic .stability and
increased job opportunities. Towards the fulfillment and accomplishment of these important
objectives,the City of Omaha remains committed to minority and women business development.
The City of Omaha's approach to minority/women business development is embedded in its policy
of non-discrimination in the conduct of City business including the procurement of goods,,materials
and services, construction and community .and .economic development projects. The City
recognizes its obligations to each segment of the various communities it serves. It is in recognition
of these responsibilities that the,City established the City's Contract Compliance Ordinance.
•
The Ordinance commits the City to:
1. Require contractors and/or vendors to provide employment opportunities.without regard to
race,creed, color, sex religion, or national origin;
2. Monitor contractor and vendor equal opportunity performance; and
3. Increase the total number and total dollar volume of City contracts awarded to minority-owned
and women-owned firms.
GOALS AND OBJECTIVES
The following represents a summary of the goals and objectives of the Planning Department as
they relate to minority and women-owned businesses: ,
1. Encourage, increase and promote business and procurement,opportunities for women-owned
businesses;
2. Increase and expand the awareness and understanding regarding the concerns, obstacles, and.
hindrances preventing increased MBE/WBE participation in Planning Department activities;
3. Assist MBE's/WBE's through the revitalization of business districts;
4. Assist minority and female entrepreneurs in the formation and growth of new small
businesses;and
5. Provide technical assistance to neighborhood organizations, MBE's and WBE's to increase
their participation in the Planning Department programs and activities at all levels.
i2_
SCOPE OF WORK
In order to accomplish these objectives,the Planning Department will:
1. Require that recipients of grant awards, consulting contracts, or loans to develop and provide
a MBE/WBE Utilization Plan.
2. Ensure that Requests for Proposals require the submission of MBE/WBE Utilization Plans.
3. Ensure that the programs of the Planning Department are advertised in the appropriate new
media whose markets are targeted toward MBE/WBE.
4. Implement an outreach effort informing MBE and WBE firms and capture information on
these firms doing business with the Planning Department.
5. Implement a system to identify MBE and WBE firms and capture information on these firms
doing business with the Planning Department.
6. Require developers, corporations, partnerships and/or sole proprietors to register with the
Human Relations Department and the Purchasing Department. In addition, require these
entities to:
A. Complete CC-1 (Human Relations Department) •
B. Complete Bid List Registration(Finance Department, Purchasing Division
C. Complete Business Certification(Human Relations Department)
7. Require developers, corporations, partnerships and/or sole proprietors to provide registration
information on all sub-contractors.
8. Require loan agreements to include a statement that jobs created will be made available to
low-to-moderate income persons.
The following application package has been developed to assist you in complying with our request
for information on your business and all sub-contractors providing goods and/or services on
projects financed by and/or implemented through an agreement with the City of Omaha. If you
have any questions or require further assistance in completing the application package, please
contact Mr. Kenneth Johnson, Sr. at 444-5165.
-3-
1 ✓ r .
MBEIWBE FOR EMPLOYMENT
The following list of organizations is provided to assist you in identifying low.-to-moderate income
persons for employment opportunities. You must make concerted efforts to hire low-to-moderate
income persons and document specific actions taken to achieve these objectives.
To help accomplish the above goals, the following agencies should be notified of initial
employment opportunities for low to moderate income persons:
Nebraska Department of Labor-Omaha Job Service Omaha Ser-Jobs for Progress,.Inc:
5036 Ames Avenue 5002 South 33rd Street
Omaha,NE 68111 Omaha,NE 68107
Jack Meyers, Office Supervisor Hector Mota, Executive Director
595-3123 734-1321
Job Training of Greater Omaha Native American. Community. Development
Blue Lion Centre Corporation
• 2421-23 North 24th Street 2451 St. Marys Avenue
Omaha,NE 68110 Omaha,NE 68105
Ola Anderson,Director Vi Fickel, Executive Director
444-4700 341-8471
Urban League of Nebraska, Inc. Omaha.Opportunities Industrialization Center
3022-24 North 24th Street 2724 North 24th Street
Omaha,NE 68110 Omaha,'NE 68110 -
George Dillard,President Dr. Bernice Dodd,Executive Director
453-9730 457-4222 .
YWCA Girls Incorporated of Omaha
222 South 29th Street 2811 North 45th Street
Omaha,NE 68131 Omaha,NE 68104
Patricia Gaines, Program Director Debra Sykes West,Executive Director
345-6555 457-4676
-
MBE/WBE FOR GOODS AND SERVICES
Your company must make vendors aware of your policy to support equal opportunity utilization of
minority, disabled and women-owned businesses. To accomplish this goal, you must provide a
copy of the approved MBE/WBE Participation Plan to all businesses providing goods and/or
services to the project.
Your company must provide the opportunity for Minority Business Enterprises and Women
Business Enterprises to provide goods and services through all phases of the project. A concerted
effort must be made to allow these-businesses to actively compete for project contracts. This effort
• will include utilization of the following resources and documentation of your actions to achieve
these objectives.
Omaha Small Business Network,Inc.
2505 North 24th Street
Omaha,NE 68110
Kevin Clingman, Executive Director
346-8262
Housing and Community Development Division
City Planning
1819 Farnam Street, Room 1111
Omaha,NE 68183
Kenneth E. Johnson, Sr., Economic Development Manager
444-5165
Nebraska Department of Economic Development
Small Business (MBE/WBE/DBE)Assistance
301 Centennial Mall South
Lincoln,NE 68509-4666
Steve Williams, Business Assistance Manager
• 471-3778
Mayor's Office of Marketing&Business Development
1819 Farnam Street, Room 304
Omaha,NE 68183
Mike Kucera,Director
444-6274
Purchasing Department
1819 Famam Street, Room 1003
Omaha,NE 68183
Gary Tomberlin, Purchasing Agent
444-5406
Human Relations Department Dian Thomas, Director(444--5050)
Contract Compliance(MBE/WBE)
1819 Famam Street,Room 502
Omaha,NE 68183
Rita Vlademar, Contract Compliance Manager
444-5067
-5-
•
•
.
MBEIWBE FOR GOODS AND SERVICES
Regional Minority Purchasing Council
Greater Omaha Chamber of Commerce
1301 Harney Street
Omaha,NE 68102
Terrie Miller, Director
345-5000
Omaha Ser-Jobs for Progress,Inc.
5002 South 33rd Street •
•
Omaha,NE 68107
Hector Mota, Executive Director
734-1321
Native American Community Development Corporation
2451 St. Marys Avenue
Omaha,NE 68105
Vi Fickel,Executive Director
341-8471
United Minority Contractors Association ,
2221 North 24th Street
Omaha,NE 68110
Al Epps,Executive Director
341-2177
Don Walker,ADDMSB
Capital Ownership Development
Small Business Administration
11145 Mill Valley Road
Omaha,NE 68154
221-4691
Patricia Gaines,Program Director
YWCA
222 South 29th Street
Omaha,NE `68131
345-6555 .
Regina Yannayon,Deputy for Small Business
U.S. Corps of Engineers
215 North 17th Street
Omaha,NE 68102
221-4110
-6-
City of Omaha, Housing and Community Development Section
BUSINESS QUALIFICATION RESUME
DATE:
L FIRM IDENTIFICATION:
COMPANY NAME
STREET ADDRESS
CITY STATE ZIP CODE
BUSINESS PHONE HOME PHONE
MONTH&YEAR ESTABLISHED
H. OWNERSHIP OF FIRM:
IS THE FIRM OWNED AND CONTROLLED BY MEMBER OF MINORITY OR OTHER
DISADVANTAGED GROUP?: YES NO MINORITY
WOMAN N/A
TYPE OF OWNERSHIP: INDIVIDUAL PARTNERSHIP CORPORATION
IS 51%OWNED BY A MINORITY? YES NO
NAME AND ADDRESS OF ALL STOCKHOLDERS AND/OR PARTNERS:
NAME,TITLE,HOME ADDRESS %OF OWNERSHIP
M. MANAGEMENT(USE SAME FORMAT FOR ADDITIONAL MANAGEMENT PERSONNEL):
NAME POSITION
EDUCATION
MANAGEMENT OR TECHNICAL TRAINING
6/22/90
-7-
•
City of Omaha, Housing and Community'Development Division
CONTRACTOR INFORMATION FORM:
DATE: PROJECT ADDRESS:
OWNER INFORMATION: (To be filled out by the City of Omaha)
OWNER'S NAME k-
,
• OWNER'S ADDRESS
CITY/STATE/ZIP CODE
OWNER'S PHONE NUMBER
OWNER'S FEDERAL TAX IDENTIFICATION NUMBER: MINORITY INFORMATION:
The Owner meets the following criteria:
MINORITY WOMAN N/A -
(If the company does not have a Federal Tax Identification
Number,then provide.the Owner's Social Security Number.)
GENERAL CONTRACTOR INFORMATION:
COMPANY'S NAME
COMPANY'S ADDRESS
CITY/STATE/ZIP CODE n
• COMPANY'S PHONE NUMBER
COMPANY'S FEDERAL TAX IDENTIFICATION NUMBER: 'MINORITY INFORMATION:
The Company meets the following criteria:
• - MINORITY •WOMAN N/A
CONTRACT AMOUNT:
SUBCONTRACTOR LIST: '
•
SUBCONTRACTOR TRADE FED. I.D. # TELEPHONE# MINORITY INFO.:
MINORITY
WOMAN
CONTRACT AMOUNT: N/A
SUBCONTRACTOR TRADE FED. I.D. # TELEPHONE# MINORITY INFO.:
MINORITY
WOMAN
CONTRACT AMOUNT: N/A
SUBCONTRACTOR TRADE FED. I.D.# TELEPHONE# MINORITY INFO.:
MINORITY
WOMAN
CONTRACT AMOUNT: N/A
-8-
City of Omaha, Housing and Community Development Division
SUBCONTRACTOR LIST (Continuation)
DATE: PROJECT ADDRESS:
SUBCONTRACTOR LIST:
SUBCONTRACTOR TRADE FED. I.D. # TELEPHONE# MINORITY INFO.:
• MINORITY
WOMAN
CONTRACT AMOUNT: N/A
SUBCONTRACTOR TRADE FED.I.D. # TELEPHONE# MINORITY INFO.:
MINORITY
WOMAN
CONTRACT AMOUNT: N/A
• SUBCONTRACTOR TRADE FED. I.D.# TELEPHONE# MINORITY INFO::
MINORITY
WOMAN
CONTRACT AMOUNT: N/A
SUBCONTRACTOR TRADE FED.I.D. # TELEPHONE# MINORITY INFO.:
MINORITY
WOMAN
CONTRACT AMOUNT: N/A
SUBCONTRACTOR TRADE FED. I.D. # TELEPHONE# MINORITY INFO.:
MINORITY
WOMAN
CONTRACT AMOUNT: N/A
SUBCONTRACTOR TRADE FED. I.D. # TELEPHONE# MINORITY INFO.:
MINORITY
WOMAN
CONTRACT AMOUNT: N/A
-9-
t I
1
EQUAL EMPLOYMENT OPPORTUNITY CLAUSE
EXHIBIT "G"
During the performance of this contract, the contractor agrees as follows:
( 1 ) The contractor shall not discriminate against any employee applicant for employment
because of race, religion, color, sex or national origin. The contractor shall take
affirmative action to ensure that applicants are employed and that employees are treated
during employment without regard to their race, religion, color, sex or national origin.
As used herein, the word "treated" shall mean and include, without limitation, the
following: Recruited, whether advertising or by other means; compensated; selected for
training; including apprenticeship; promoted; upgraded; demoted; downgraded;
transferred; laid off; and terminated.
The contractor agrees to and shall post in conspicuous places, available to employees and
applicants for employment, notices to be provided by the contracting officers for
employment, notices to be provided by the contracting officers setting forth the
provisions of this nondiscrimination clause.
( 2 ) The contractor shall, in all solicitations of advertisements for employees placed by or on
behalf of the contractor, state that all qualified applicants will receive consideration for
employment without regard to race, religions, color, sex or national origin.
( 3 ) The contractor shall send to each labor union or representative of workers with which
he has a collective bargaining agreement or other contract or understanding a notice
advising the labor union or worker's representative of the contractor's commitments
under the equal employment opportunity clause of the city and shall post copies of the
notice in conspicuous places available to employees and applicants for employment.
( 4 ) The contractor shall furnish to the contract compliance officer all federal forms
containing the information and reports required by the federal government for federal
contracts under federal rules and regulations, and including the information required by
Section 10-192 to 10-194, inclusive, and shall permit reasonable access to his
records. Records accessible to the contract compliance officer shall be those which are
related to Paragraphs (1) through (7) of this subsection and only after reasonable
notice is given the contractor. The purpose of this provision is to provide for
investigation to ascertain compliance with the program provided for herein.
( 5 ) The contractor shall take such actions with respect to any subcontractor as the city may
direct as a means of enforcing the provisions of Paragraphs (1) through (7) herein,
including penalties and sanctions for noncompliance; however, in the event the
contractor becomes involved in or is threatened with litigation as the result of such
directions by the city, the city will enter into such litigation as necessary to protect the
interests of the city and to effectuate the provisions of this division; and in the case of
contracts receiving federal assistance, the contractor or the city may request the United
States to enter into such litigation to protect the interests of the United Sates.
( 6 ) The contractor shall file and shall cause his subcontractors, if any, to file compliance
reports with the contractor in the same form and to the same extent as required by the
federal government for federal contracts under federal rules and regulations. Such
compliance reports shall be filed with the contract compliance officer. Compliance
reports filed at such times as directed shall contain information as to the employment
practices, policies, programs and statistics of the contractor and his subcontractors.
(7 ) The contractor shall include the provisions of Paragraphs (1) through (7) of this
Section. "Equal Employment Opportunity Clause", and Section 10-193 in every
subcontract or purchase order so that such provisions will be binding upors a/Ch.
subcontractor or vendor.
1
•
•
SECTION 3 CLAUSE
All Section 3 covered contracts shall include the following clause (referred to as the Section 3
clause):
A. The work to be performed under this contract 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.
B. The parties to this contract agree to comply with HUD's regulations in 24 CFR part 135,
which implement Section 3. As evidenced by their execution of this contract, the parties to
this contract certify that they are under no contractual or other impediment that would
prevent them from complying with the part 135 regulations.
C. The contractor agrees to send to each labor organization or representative of workers with
which the contractor has a collective bargaining agreement or other understanding, if any, a
notice advising the labor organization or workers' representative of the contractor'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.
D. The contractor agrees to include this Section 3 clause in every subcontract subject to
compliance with regulations in 24 CFR 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 CFR part 135. The
contractor will not subcontract with any subcontractor where the contractor has notice or
knowledge that the subcontractor has been found in violation of the regulations in 24 CFR
part 135.
E. The contractor will certify that any vacant employment positions, including training
positions,that are filled(1) after the contractor is selected but before the contract is executed,
and (2) with persons other than those to whom the regulations of 24 CFR part 135 require
employment opportunities to be directed, were not filled to circumvent the contractor's
obligations under 24 CFR part 135.
F. Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions,
termination of this contract for default, and debarment or suspension from future HUD-
assisted contracts.
Effective August 1, 1994
4111
"11111111110.011111111111 -
- •
G. 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 this contract. 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 this contract 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).
Providing Other Economic Opportunities.
(a) General. In accordance with the findings of the Congress, as stated in Section 3, that other
economic opportunities offer an effective means of empowering low-income persons, a
recipient is encouraged to undertake efforts to provide to low-income persons economic
opportunities other than training, employment, and contract awards, in connection with
Section 3 covered assistance.
(b) Other training and employment-related opportunities. Other economic opportunities to
train and employ Section 3 residents include, but need not be limited to, use of "upward
mobility", "bridge" and trainee positions to fill vacancies; hiring Section 3 residents in
management and maintenance positions within other housing developments; and hiring
Section 3 residents in part-time positions.
(c) Other business-related economic opportunities. (1) A recipient or contractor may provide
economic opportunities to establish, stabilize or expand Section 3 business concerns,
including micro-enterprises. Such opportunities include„ but are not limited to the formation
of Section 3 joint ventures, financial support for affiliating with franchise development, use
of labor only contracts for building trades, purchase of supplies and materials from housing
authority resident-owned businesses, purchase of materials and supplies from PHA resident-
owned businesses and use of procedures under 24 CFR part 963 regarding HA contracts to
HA resident-owned businesses. A recipient or contractor may employ these methods directly
or may provide incentives to non-Section 3 businesses to utilize such methods to provide
other economic opportunities to low-income persons. (2) A Section 3 joint venture means an
association of business concerns, one of which qualifies as a Section 3 business concern,
formed by written joint venture agreement to engage in and carry out a specific business
venture for which purpose the business concerns combine their efforts, resources, and skills
for joint profit, but not necessarily on a continuing or permanent basis for conducting
business generally,and for which the Section 3 business concern:
(i) Is responsible for a clearly defined portion of the work to be performed and holds
management responsibilities in the joint venture; and
(ii) Performs at least 25 percent of the work and is contractually entitled to compensation
proportionate to its work.
Effective August 1, 1994
7 _ 1
EXHIBIT "H"
24 CFR 85.43 ENFORCEMENT
(a) Remedies for noncompliance. If a grantee or subgrantee materially fails
to comply with any term of an award, whether stated in a Federal statute
or regulation, an assurance, in a State plan or application, a notice of
award, or elsewhere, the awarding agency may take one or more of the
following actions, as appropriate in the circumstances:
(1) Temporarily withhold cash payments pending correction of the
deficiency by the grantee or subgrantee or more severe enforcement
action by the awarding agency,
(2) Disallow (that is, deny both use of funds and matching credit for)
all or part of the cost of the activity or action not in compliance,
(3) Wholly or partly suspend or terminate the current award for the
grantee's or subgrantee's program,
(4) Withhold further awards for the program, or
(5) Take other remedies that may be legally available.
(b) Hearings, appeals. In taking an enforcement action, the awarding agency
will provide the grantee or subgrantee an opportunity for such hearing,
appeal, or other administrative proceeding to which the grantee or
subgrantee is entitled under any statute or regulation applicable to the
action involved.
(c) Effects of suspension and termination. Costs of grantee or subgrantee
resulting from obligations incurred by the grantee or subgrantee during a
suspension or after termination of an award are not allowable unless the
awarding agency expressly authorizes them in the notice of suspension or
termination or subsequently. Other grantee or subgrantee costs during
suspension or after termination which are necessary and not reasonably
avoidable are allowable if:
(1) The costs result from obligations which were properly incurred by
the grantee or subgrantee before the effective date of suspension
or termination, are not in anticipation of it, and, in the case of
a termination, are noncancellable, and,
(2) The costs would be allowable if the award were not suspended or
expired normally at the end of the funding period in which the
termination takes effect.
(d) Relationship to Debarment and Suspension. The enforcement remedies
identified in this section, including suspension and termination, do not
preclude grantee or subgrantee from being subject to "Debarment and
Suspension" under E.O. 12549 (see § 85.35).
� 1
I
•
24 CFR 85.44 TERMINATION FOR CONVENIENCE
Except as provided in § 85.43 awards may be terminated in whole or in part
only as follows:
(a) By the awarding agency with the consent of the grantee or subgrantee in
which case the two parties shall agree upon the termination conditions,
including the effective date and in the case of partial termination, the
portion to be terminated, or
(b) By the grantee or subgrantee upon written notification to the awarding
agency, setting forth the reasons for such termination, the effective
date, and in the case of partial termination, the portion to be
terminated. However, if, in the case of. a partial termination, the
awarding agency determines that the remaining portion of the award will
not accomplish the purposes for which the award was made, the awarding
agency may terminate the award in its entirety under either § 85.43 or
paragraph (a) of this section.
9124u
• .. , EXHIBIT "E"
•'/ /1
General Decision Number NE940009 `t 4567gg S v�
Superseded General Decision No. NE930009 Ifec$36
ZIP
State: Nebraska
Construction Type: .
vc
RESIDENTIAL - it,ZZtZ`
County(ies) : / 6 1 -
CASS DOUGLAS SARPY
RESIDENTIAL CONSTRUCTION PROJECTS (consisting of single family
homes and apartments up to and including 4 stories)
•
Modification Number Publication Date
0 02/11/1994
1 04/08/1994
'-s
NE940009 - 1 04/08/1994 L
.
fp
• • � 40,
COUNTY(ies) : 4i AN •
�2
CASS DOUGLAS • SARPY ZIZOZ'
BRNE0001I 07/01/1993
Rates Fringes
CASS COUNTY: •
BRICKLAYER:
Work on power plants, ethanol
plants, food processing plants
and heavy industrial plants
(i.e. , automotive manufacturing
plants or similar facilities) 15.93 3 .72
All other work 15.10 2.50
BRNE0001J 07/01/1993
Rates Fringes
DOUGLAS AND SARPY COUNTIES:
BRICKLAYER 15.93 3 .72
BRNE0001L 07/01/1992
Rates Fringes
MARBLE, TERRAZZO & TILE FINISHER 11. 31 1. 12
CARP0444C 04/01/1993
Rates Fringes
CARPENTERS :
Carpenter 15.88 2 .43
Saw operator; Piledriver 16. 005 2 .43
Carpenter (creosote) 16. 13 2 .43
* ELEC0022E 04/01/1994
Rates Fringes
ELECTRICIAN 13 . 06 3 . 5% +2 . 37
PLAS0538C 10/01/1993
Rates Fringes
CEMENT MASON 14 .31 3 .25
PLUM0016E 06/01/1993
Rates Fringes
PLUMBER 18. 61 4 . 65
NE940009 - 2 04/08/1994
N23451• .
SUNE4003A 07/31/1990
o.�,,�
`�. �Z'\,f�*3 • Rates Fringesr
DRYWALL: , N'' i
Hanger ^Q 13 .57 2 .10
•
Finisher & taper d2 IZO2' 8 .64
INSULATOR 11. 21
IRONWORKER •
13 .00 2 .00
LABORERS:
General 10.41 1.80
Mason tender 10. 585 1.80
PAINTER 10. 00
POWER EQUIPMENT OPERATORS:
Loader 13 .49
SHEET METAL WORKER 11.89 1.34
TRUCK DRIVER 10.27
WELDERS - Receive rate prescribed for craft performing operation
to which welding is incidental.
Unlisted classifications needed for work not included within
the scope of the classifications listed may be added after
award only as provided in the labor standards contract clauses
(29 CFR 5.5 (a) (1) (v) ) .
In the listing above, the "SU" designation means that rates
listed under that identifier do not reflect collectively
bargained wage and fringe benefit rates. Other designations
indicate unions whose rates have been determined to be
prevailing.
END OF GENERAL DECISION
NE940009 - 3 04/08/39p4
C-25A
CITY OF OMAHA
LEGISLATIVE CHAMBER
Omaha, Nebr Au..ust...23 19...94...
RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
WHEREAS, the HOME Investment Partnerships Program Rules and
Regulations, Section 92-205, authorizes financing new construction of
residential units through the use of HOME funds to provide affordable
residential units to qualified low-income families; and,
WHEREAS, HOME Program financing is intended to benefit low and
moderate income families whose annual income does not exceed 80% of the
median income by family size for the Omaha Metropolitan Area as established
on an annual basis by the U.S. Department of Housing and Urban Development;
and,
WHEREAS, funding from the City in the amount of $980,000 will be
in the form of a Repayable Loan comprised of $195,000 of 1993 HOME funds,
$559,000 of 1994 HOME funds and $226,000 in KENO/Lottery funds; and,
WHEREAS, the 1993 and 1994 Home Program Descriptions identify this
project as a priority program; and,
WHEREAS, funds from the 1993 Program Year were approved by the
City Council on June 15, 1993 by Resolution No. 1410 as part of the City's
HOME Investment Partnerships Program; and,
WHEREAS, funds from the 1994 Program Year were approved by the
City Council on July 26, 1994 by Resolution No. 2145; and,
WHEREAS, other sources of funds include $815,000 permanent
financing and $1,549,770 from private sources and equity for a total
estimated project cost of $3,344,770; and,
WHEREAS, this project represents an innovative method of
encouraging infill development and expanding residential opportunities for
low-income families desiring to live in the South Omaha Community; and,
WHEREAS, it is necessary for the City of Omaha to enter into an
Agreement with Orchard Manor Limited Partnership; General Partner: Orchard
Manor Corporation to provide partial financing for the construction of
forty-eight (48) multi-family residential units (of which twenty-four (24)
units will be designed to house persons with a hearing impairment and three
(3) units shall be handicapped accessible) at 36th and Orchard Streets and
the subsequent rental of each unit to qualified low-income households.
By
Councilmember
Adopted
City Clerks; 111)
Approved
Mayor
C-'25A
-CITY OF OMAHA
•
LEGISLATIVE CHAMBER
•
Omaha, Nebr 1uaBst..2 199.4
Page 2 •
• • s
•
NOW, 1HEREFORE, BE IT RESOLVED BY THE CITY 'COUNCIL OF THECITY OF
OMAHA:
THAT,; the attached Agreement, as recommended by the Mayor, to
provide a Repayable Loan in the amount of $980,000 to Orchard Manor Limited
Partnership; General Partner: Orchard Manor Corporation, a non-profit
corporation, 6655 Redick Avenue, Omaha, Nebraska' 68152 for the construction
of forty-eight (48) residential units of which twenty-four (24) units will be
designed to house persons with a hearing impairment and three (3) units shall
be handicapped accessible at 36th and Orchard Streets for subsequent rental
to qualified low-income families, be and hereby is approved. Funds in the
amount of $754,000 shall be payable from HOME Program Funds No. 186, Agency
No. 200, HOME Construction Program, Organization No. 5010; and $226,000 shall
be payable from the KENO/Lottery HOME Funds No. 120, Agency No. 110, and
Organization No. 1106.
APPROVED AS TO FORM:
(-67
ASSTST T CITY AT 0 //////
8066v
Councilmember
Adopted A U G 2 3 1994 7-0
41
ob *. ...
elo
Approved. I.
40V4W
.. p
c GMayor
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