HomeMy WebLinkAboutCDC/2005-29
RESOLUTION NO. CDC/2005-29
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING
THE EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO ("AGENCY") TO EXECUTE THE 2005
HOME GRANT AGREEMENT BY AND BETWEEN THE AGENCY AND
HIGHLAND LUTHERAN SENIOR HOUSING, INC., A NON-PROFIT
CORPORATION - 2355 NORTH OSBUN ROAD (IVDA REDEVELOPMENT
PROJECT AREA)
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WHEREAS, the Community Development Commission of the City of San Bernardino
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(the "Commission") on behalf of the Redevelopment Agency of the City of San Bernardino (the
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"Agency"), is a redevelopment agency, a public body of the State of California, organized and
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existing pursuant to the Community Redevelopment Law (Part I of Division 24) commencing
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with Section 33000 of the Health and Safety Code of the State of California (the "Act"); and
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WHEREAS, the Agency is authorized by the Act to carry out affordable housing
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activities within or outside a redevelopment project area for the benefit of low- and moderate-
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income households; and
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WHEREAS, in an effort to carry out the Agency's affordable housing obligations and
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duties under the Act, the City of San Bernardino (the "City") has designated the Agency as the
administrator of the federal HOME Grant Program (the "Program") and said Program is
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intended to preserve and increase the supply of affordable housing for low- and moderate-
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income households in the City; and
WHEREAS, in an effort to facilitate the Agency's responsibilities under the Act,
Highland Lutheran Senior Housing, Inc., ("Highland"), a California nonprofit corporation,
desires to rehabilitate an affordable senior housing project; and Highland and the Agency desire
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to enter into an agreement (the "2005 HOME Grant Agreement") for rehabilitating the 50 unit
senior housing and complex (the "Project") located at 2355 North Osbun Road, San Bernardino,
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California (the "Site"), in the Inland Valley Development Agency (IVDA) Redevelopment
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Project Area (the "Project Area"); and
2 WHEREAS, the Agency desires to assist Highland with $250,000 ("HOME Grant") to
3 rehabilitate the Project subject to the 2005 HOME Grant Agreement attached to the Staff
4 Report; and
5 WHEREAS, in exchange for the HOME Grant to Highland, the Agency will amend the
6 existing Regulatory Agreement to continue reserving ten (10) units in the Project for very low
7 income eligible seniors for an additional fifteen (15) years, and to provide for additional units in
8 the Project to be set aside for low income seniors for a period of fifteen (15) years; and
9 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
10 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
11 FOLLOWS:
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Section 1.
The Commission finds and determines that the rehabilitation of the
13 Project on the Site as described in the 2005 HOME Grant Agreement is within the scope, terms
14 and provisions of the Redevelopment Plan for the Project Area, is consistent with the Agency's
15 Housing Implementation Plan and City's Consolidated Plan and will help preserve affordable
16 rental housing opportunities for low-income seniors.
Section 2.
The Commission authorizes the HOME Grant of $250,000 from the
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18 2001-2004 federal HOME Grant funds included in the fiscal year 2004-2005 budget for
19 Highland to carry out the Project, and authorizes the Executive Director to execute the 2005
20 HOME Grant Agreement on behalf of the Agency together with such technical and conforming
21 changes as recommended by the Executive Director and approved by Agency Counsel,
22 provided such changes are not substantial and do not increase the Agency's HOME Grant to the
23 Project.
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Section 3.
The Project is categorically exempt from the California Environmental
25 Quality Act (CEQA) and National Environmental Protection Act (NEP A) Implementation
Guidelines, and no further environment document is required pursuant to Section 15168 of the
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CEQA guidelines.
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III
The Resolution shall become effective immediately upon its adoption.
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING
THE EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO ("AGENCY") TO EXECUTE THE 2005
HOME GRANT AGREEMENT BY AND BETWEEN THE AGENCY AND
HIGHLAND LUTHERAN SENIOR HOUSING, INC., A NON-PROFIT
CORPORATION - 2355 NORTH OSBUN ROAD (IVDA REDEVELOPMENT
PROJECT AREA)
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
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Community Development Commission of the City of San Bernardino at a j oint regular
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meeting thereof, held on the 15thdayof August
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Commission Members: Aves Nays
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ESTRADA X
11 LONGVILLE
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12 MCGINNIS X
13 DERRY X
14 KELLEY X
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15 JOHNSON X
16 MC CAMMACK -1L
, 2005, by the following vote to wit:
Abstain
Absent
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The foregoing resolution is hereby approved this 17th day of
August
,2005.
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WendY~Cammack, Mayor Pro Tern
City of San Bernardino on
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Approved as to form and Legal Content:
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By:
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Recorded in Official Records, County of San Bernardino
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
LARRY WALKER
Auditor/Controller - Recorder
8117/2005
3:52 PM
BN
P Counter
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
201 North "E" Street, Suite 301
San Bernardino, California 92401
Doc#: Tilles: 1 Pages: 26
Fees 0.00
Taxes 0.00
Other 0.00
PAID $0.00
(Space Above Line for Use By Recorder)
Recording Fee Exempt Pursuant to Government Code Section 6103
2005 HOME GRANT AGREEMENT
BY AND BETWEEN
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND
HIGHLAND LUTHERAN SENIOR HOUSING, INC.
2005 HOME GRANT AGREEMENT
BY AND BETWEEN
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND
HIGHLAND LUTHERAN SENIOR HOUSING, INC.
THIS 2005 HOME AGREEMENT ("HOME Grant Agreement") is dated as of August 15,
2005, by and between the Redevelopment Agency of the City of San Bernardino, a public body,
corporate and politic (the "Agency"), and Highland Lutheran Senior Housing, Inc., a California
nonprofit corporation (the "Participant"), and is entered into in light of the facts set forth in the
following Recitals:
RECITALS
1. The City of San Bernardino (the "City") is an entitlement city and receives annually
certain federal funds under the HOME Investment Partnership Act (the "HOME Program") from the
United States Department of Housing and Urban Development ("HUD") in order to carry out eligible
housing activities within the City of San Bernardino in accordance with federal program regulations set
forth in Title 24 Code of Federal Regulations Part 92; and
2. The City has designated and authorized the Agency to administer and implement the
HOME Program; and
3. In accordance with the HUD guidelines under the HOME Program, HOME funds may
be used for locally based nonprofit housing entities to carry out affordable housing activities in
compliance with the HOME Program regulations; and
4. The Participant is a locally certified and/or approved and experienced nonprofit housing
organization, and the Participant desires to participate with the Agency in activities eligible under the
HOME Program, and the Participant further agrees that the beneficiaries of its activities under the
HOME Program and this Agreement, are or will be families and persons who meet the income
eligibility guidelines of24 CFR Part 92.216 and Part 92.217; and
5. The Agency deems that the activities to be undertaken by the Participant herein are
consistent with and supportive of the HOME Program regulations and that the financial assistance of
the Agency is necessary and appropriate to initiate the housing activities of the Participant as set forth
herein; and
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6. The Agency deems it desirable to enter into this HOME Grant Agreement with the
Participant in order to provide HOME funds for the rehabilitation and preservation of the Property, as
described in Exhibit "A" herein and for the provision of affordable rental housing in accordance with
the HOME Program guidelines; and
7. The use of the Property shall be subject to Amendment No. 1 to the Regulatory
Agreement and Declaration of Restrictive Covenants (the "1995 Regulatory Agreement"), attached
hereto as Exhibit "B" and incorporated herein by this reference, and said 1995 Regulatory Agreement
was duly recorded against the Property at the time of the financing that was undertaken in 1995 for
which the 1995 Regulatory Agreement was so recorded for the financing by the Agency designated as
the $1,710,000 Redevelopment Agency of the City of San Bernardino, Multifamily Housing Revenue
Bonds (Highland Lutheran Project) 1995 Series.
8. Participant agrees that in exchange for receiving financial assistance under this HOME
Grant Agreement, the covenants and restrictions for the rental of the units to very low income tenants
shall be extended for an additional fifteen (15) years and an additional twenty percent (20%) of the
units shall be rented to seniors with a household income of not more than 80% of the Area Median
Income in the manner as herein provided and as set forth in said Amendment No. l.
NOW THEREFORE, THE PARTIES TO THIS HOME GRANT AGREEMENT COVENANT AND
AGREE AS FOLLOWS:
Section 1. Grant Amount. Uses. and Scope of Proiect
Subject to the terms and conditions of this HOME Grant Agreement, the Agency shall make
available to the Participant a grant in the amount of TWO HUNDRED FIFTY THOUSAND
DOLLARS AND 00/1 00 ($250,000) (the "HOME Grant") from 2003/2004 HOME Program funds for
the rehabilitation of the Property located at 2355 North Osbun Road, San Bernardino, California, as
more specifically described in Exhibit "A", attached hereto (the "Property"). The Property consists of
fifty (50) units, of which ten (10) units shall be set aside as affordable HOME Rental Units.
The HOME Grant shall be used, by the Participant, solely for the following improvements: 1)
the conversion of an existing hydro heating system to a "forced-air" heating system (the
"Improvements"). Said HOME Grant shall be disbursed by the Agency to the Participant upon
verification and inspection of the Improvements by an authorized representative of the Agency. Upon
verification and inspection of said Improvements by the Agency authorized representative, and
submission of said invoice by the Participant, the Agency shall disburse said HOME Grant funds
monthly if requested by the Participant for the month of construction draws or upon verification
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submitted by the Participant to the Agency demonstrating that the work has been satisfactorily
completed.
After this HOME Grant Agreement has been executed, but not later than thirty (30) days
following the approval of this HOME Grant Agreement by the Agency, the Participant shall
immediately procure through a competitive bidding process the construction and installation of the
Improvements to the Property, in compliance with CFR 85.36, and submit an itemized detail
Improvement report and other necessary evidence demonstrating that the Participant has properly bid
the work items comprising the Improvements and has complied with the commonly referred to "Davis-
Bacon" federal wage requirements in accordance with the HOME Program regulations (e.g., see
Section of 9.4(iv) of this HOME Grant Agreement), and the Participant shall perform the
Improvements with the proceeds from the HOME Grant funds, and any other funds that are needed to
complete the Improvements which shall be provided by the Participant from any other sources
available to the Participant.
The Participant shall complete the Improvements within one hundred eighty (180) days (the
"Completion Date") from the date of this HOME Grant Agreement. The Participant agrees that it will
undertake the Improvements in accordance with all City Development Standards.
The Agency acknowledges that the Improvements to be performed hereunder are also subject
to the requirements of the Regulatory Agreement between Participant and the Department of Housing
and Urban Development ("HUD"), if applicable.
Section 2. Disbursement of HOME Grant to Participant
(a) Subject to the terms and conditions of this HOME Grant Agreement, the Participant
hereby agrees to undertake the Improvements as stated in Section 1 above.
(b) As provided in Section 1, the Agency shall disburse no more than the Grant Amount to
the Participant for the Improvements to the Property. The Agency shall only disburse the proceeds of
the HOME Grant to fund the Improvements to the Property when the Participant has satisfied the
following conditions:
(i) the Participant has provided the Agency with evidence of insurance coverage as
required under this HOME Grant Agreement; and
(ii) the Participant has executed Amendment No. 1 to the 1995 Regulatory
Agreement for the Property in favor of the Agency; and
(iii) the Participant has complied with each of the other provisions of this HOME
Grant Agreement and is not in default hereunder or no default has occurred under this Agreement.
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Section 3. HOME Grant Deed Covenants
Prior to the disbursement of the proceeds of the HOME Grant to Participant, the Participant
shall execute and cause to be recorded in favor of the Agency Amendment No. 1 to the
Regulatory Agreement (Exhibit "B") for the Property. Such Amendment No. 1 to the
Regulatory Agreement shall (i) extend for an additional fifteen (15) years those restrictive
covenants pertaining to the rental of the units to very low income tenants, and (ii) require that
an additional twenty percent (20%) of the units be rented to tenants whose adjusted gross
income does not exceed eighty percent (80%) of the Area Median Income. Section 2(a) of the
1995 Regulatory Agreement shall be amended in its entirety by the insertion of the following
language in place of the language presently set forth therein:
"The term of the Occupancy Restrictions commenced on the first day on which 10% of
the units in the Project were first occupied and shall end on the later of (i) the date
which is 30 years after the date on which at least 50% of the units in the Project were
first occupied, (ii) 15 years after the first day on which none of the Bonds or any other
tax-exempt private activity bonds issued with respect to the Project are outstanding, or
(iii) 15 years after the termination date for any assistance provided with respect to the
Project under Section 8, or such other date as to which an opinion of Bond Counsel is
delivered to the trustee to the effect that termination of the Occupancy Restrictions on
such date will not adversely affect the exclusion of interest on the Bonds from gross
income for federal income tax purposes."
Section 4(a) of the 1995 Regulatory Agreement is amended by the insertion of the following
language at the end of said Section 4(a):
"In addition to the requirement herein for the Project to be occupied by Qualifying Tenants and
Very Low Income Tenants, an additional 20% of the units in the Project shall be occupied (or
treated as occupied as provided herein) or held vacant and available for occupancy by tenants
who are an individual or family whose combined adjusted income (computed in the manner
prescribed in Section 1.167(k)-3(b )(3) of the Treasury regulations as in effect on the date of
issuance of the Bonds and treating all occupants as a single family) does not exceed 80% of the
area median gross income, with adjustments for smaller and larger families as set forth in
Exhibit A to the Regulatory Agreement, and such units will be of comparable quality and will
be a range of sizes and number of bedrooms comparable to those units which are available to
other tenants."
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Section 4. Occupancy of Units
4.1 Participant shall ensure that each of the Rental Units shall be available and remain
available for occupancy by seniors who are income-eligible and 62 years of age or older as defined in
Section 51.3 of the California Civil Code, and as amended from time to time. Participant shall be
responsible for interviewing and selecting occupants for the Rental Units and, shall file with the
Agency the Tenant Eligibility Certification (Exhibit "C") commencing on July 1 following the
completion of the Improvements and on each July I annually thereafter during the term of this HOME
Grant Agreement.
4.2 The Participant may charge rent for the occupancy of each Rental Unit, which is
defined to be an affordable housing cost in accordance with the HOME Rent Schedule, attached
hereto, as Exhibit "D", and incorporated herein by this reference. During the term of this HOME
Grant Agreement, the HOME Rent Schedule may be amended annually as provided under the HOME
Program guidelines and as amended by HUD annually.
Section S. Manae:ement of Rental Housine: Units
(a) The Participant covenants to continue to manage the Rental Units and be responsible for
collecting all rents ("Income") due and payable in connection with the occupancy of the Rental Units
and upon the collection of such rents, pay for all customary and reasonable costs and expenses incurred
in connection with the operation and property management ("Operation and Management Costs") of
the Rental Units and the Property. Any remaining revenues, after payment of such Operation and
Management Costs, shall be placed in a reserve account ("Reserve Fund") for the benefit of the Rental
Units.
(b) To the extent not restricted by the 1995 Regulatory Agreement and any other financing
secured by the Property, the Participant shall establish and maintain the Reserve Funds of not less than
five percent (5%) of the total Income collected from the Rental Units for the Property, if possible. The
Reserve Fund shall be used by the Participant to pay for the costs of capital replacements or
improvement to the Property, and for such extraordinary costs and expenses for the operation and
maintenance of the Property. Such Reserve Fund shall be specifically identified in the books and
financial accounting records of Participant as funds held in trust by the Participant for the Property.
The Participant shall provide the Agency with suitably detailed accounting records relating to the
balance and use of the Reserve Fund, upon request.
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Section 6. Affordable Rental Units and Affordabilitv Period
The Property and Rental Units will be reserved for seniors who meet the income requirements
in accordance with 24 CFR Part 92.252, commencing upon the recordation of Amendment No. 1 to the
1995 Regulatory Agreement and taking effect thereon and continuing until the expiration of the
affordability period as provided in said Amendment No. 1 without regard to the term of the HOME
Grant or to transfer of ownership (hereinafter referred to as the "Affordability Period"). A breach of
the Affordability Requirements (as set forth in Section 13) shall be deemed an event of default under
this HOME Grant Agreement.
If applicable, compliance with the HUD Documents (defined as the HUD Note, Deed of Trust
and Regulatory Agreement) during the term thereof shall be deemed compliance with the requirements
of Sections 4 to 6, inclusive, and Sections 8 and 9 of this HOME Grant Agreement and, in the event of
a conflict, the HUD requirements shall control. In the event of any conflict between the HOME
Program requirements and the requirements of the HUD Documents, the matter shall be submitted to
HUD for determination.
Section 7. Uniform Administrative Requirements
As a nonprofit organization and a recipient of HOME Program funds, the Participant certifies
and warrants that it meets the requirements ofOMB Circular No. A-122 and OMB circular No. A-11O,
Attachment B; Attachment F; Attachment H, Paragraph 2; and Attachment O. The Agency shall
monitor the activities of Participant in order to ensure the continued compliance with these provisions
and any other provisions applicable under the HOME Program regulations.
Section 8. Proiect Requirements
The parties hereby agree as follows:
8.1 Maximum Per-Unit Subsidy Amount. The amount of HOME Grant Funds that the
Participant may invest on a per-unit basis in affordable housing does not exceed limits established by
HUD for this type ofproject.
8.2 Property Standards. The Improvements upon completion shall, at a minimum, meet
Federal (Housing Authority) Section 8 Housing Quality Standards ("HQS") and local housing codes
and ordinances for the term of the Affordability Period and the property maintenance provisions of the
HOME Regulatory Agreement for the Property. The Participant hereby agrees that the Agency or its
designee shall be permitted regular access to the Property in order to physically inspect the Rental
Units and ensure compliance with the terms of this HOME Grant Agreement. Such inspections shall
occur at least annually.
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8.3 rRESERVED-NO TEXTl
8.4 Recertification of Occupancy and Rent Requirements. The Participant shall re-examine
the income of each tenant household occupying the Rental Units at least annually and shall provide
documentation to the Agency to ensure continued compliance with the provisions of the HOME
Regulatory Agreement. The monthly rent for a particular Rental Unit may be recalculated by the
Participant based upon increases (or decreases) in the household income of the household since the
time of the previous Recertification of Tenant Eligibility Report to the Agency. Any increase in rent
for a Rental Unit shall be subject to the provisions of outstanding leases. The Participant may increase
rent for each Rental Unit not more frequently than once per year and the Participant shall provide
tenants of those Rental Units where an increase of rent is proposed not less than sixty (60) days prior
written notice before implementing an increase in rent.
8.5 Increases in Tenant Income. The Rental Units shall qualify as affordable housing units
despite a temporary household income noncompliance by tenant occupants if the noncompliance is
caused by increases in the incomes of existing tenants of Rental Units following the Completion Date
of the Improvements by such tenant and if actions satisfactory to the Agency are being taken by the
Participant to ensure that all vacancies of Rental Units occupied after the time that non-compliance
may occur under this Section 8.5 are rented to new households in accordance with Section 8.4 until
the noncompliance is corrected.
8.6 Tenant Protection.
(i) Lease. For the Rental Units, the initial term of the lease between each tenant
and the Participant must be for not less than one year, unless by mutual agreement between the tenant
and the Participant, with the prior written approval of the Agency.
The lease shall provide that the maximum occupancy of the Rental Units shall be
appropriate for the unit (maximum of two persons for one bedroom apartment).
(ii) Prohibited Lease Terms. The lease may not contain any of the following
provIsIOns:
(a) an agreement by the tenant to be sued, to admit guilt or to a judgment in
favor of the Participant in a lawsuit brought in connection with the lease.
(b) an agreement by the tenant that the Participant 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 Rental Unit after the tenant has moved out of the
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Rental Unit. The Participant may dispose of this personal property III accordance with State of
California law.
(c) an agreement by the tenant not to hold the Participant or the Participant's
agency legally responsible for any action or failure to act, whether intentional or negligent.
(d) an agreement of the tenant that the Participant may institute a lawsuit
without notice to the tenant.
(e) an agreement of the tenant that the Participant 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.
(f) an agreement by the tenant to waive any right to a trial by jury.
(g) an 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.
(h) an agreement by the tenant to pay attorneys' 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 ifthe tenant loses.
8.7 Termination of Tenancv. The Participant may not terminate the tenancy or refuse
to renew the lease of a tenant for any Rental Unit except for serious or repeated violation of the terms
and conditions of the lease, for violation of applicable federal, state, or local law, or for other good
cause. Any termination or refusal to renew must be preceded by not less than 60 days written notice to
tenants specifying the grounds for such action.
Section 9. Other Requirements
9.1 Maintenance and Replacement. The Participant must maintain the Property in
compliance with all applicable housing quality standards and local code requirements, including, but
not limited, to the San Bernardino Municipal Code.
9.2 Tenant Selection. The Participant must adopt written tenant selection policies and
criteria for the Rental Units that:
(i) are consistent with the purpose of providing housing for very low-income
semors;
(ii) are reasonably related to HOME Program eligibility and the applicants' ability
to perform the obligations of the lease;
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(iii) give reasonable consideration to the housing needs of families that would have a
federal preference under section 960.211 of Title II of the Cranston-Gonzalez National Affordable
Housing Act of 1992;
(iv) provide for the selection of tenants from a written waiting list in the
chronological order of their application, insofar as is practicable, and the prompt written notification,
to any rejected applicant setting forth the grounds for any rejection; and
(v) provide that a preference be given to residents or occupants of the City of San
Bernardino with respect to the occupancy of the Rental Units.
9.3 rRESERVED-NO TEXTl
9.4 Compliance. The Participant must carry out each activity in compliance with all
Federal laws and regulations described in 24 CFR Part 92 and outlined hereinafter, except that the
Participant does not assume the Agency's responsibilities for environmental review in 24 CFR Part
92.352 or the intergovernmental review process in 24 CFR Part 92.359. These Federal laws and
regulations must be complied with as follows:
(i) Equal Opportunity. No person shall 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 all
laws and regulations listed in 24 CFR Part 92.350(a).
(ii) Fair Housing. In accordance with the certification made with its housing
strategy, each participating jurisdiction receiving HOME Program funds, must affirmatively further
fair housing. Actions described in Section 570.904(c) of Title II of the Cranston-Gonzalez National
Affordable Housing Act will satisfy this requirement.
(iii) Displacement. Relocation, and Acquisition. Consistent with the other goals and
objectives of 24 CFR Part 92, and if applicable, the Participant must ensure that it has taken all
reasonable steps to minimize the displacement of persons as a result of undertaking the Improvements,
if applicable. To the extent feasible, tenants must be provided a reasonable opportunity to lease and
occupy a suitable, decent, safe, sanitary, and affordable dwelling unit upon the Improvements being
completed. The Participant agrees to minimize displacement in accordance with 24 CFR Part 92.353.
The Participant agrees and is obligated under the HOME regulations to insure that tenants displaced
are afforded due process and relocation benefits.
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(iv) Labor. Any contract executed by the Participant for the rehabilitation or
construction of the Property, which consists of more than 12 or more rental units using HOME Grant
funds, must contain a provision requiring that 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. 2761-5), will be
paid to all laborers and mechanics employed in the development or rehabilitation of the Rental Units,
and such contracts must also be subject to overtime provisions, as applicable, of the Contract Work
Hours and Safety Standards Act (40 U.S.c. 327-332). The Agency will require certification as to
compliance with the provisions of24 CFR Part 92.354.
(v) Lead-based Paint. It is understood that the rehabilitation or improvement of the
Rental Units is subject to 24 CFR Part 35.
(vi) Conflict of Interest. The Participant shall comply with all requirements set forth
regarding conflict of interest provisions as they apply in 24 CFR Part 92.356.
(vii) Debarment and Suspension. As required in 24 CFR Part 92.357, the Participant
will comply with all debarment and suspension certifications.
(viii) Flood Insurance. Under the Flood Disaster Protection Act of 1973, HOME
Program funds may not be used with respect to the acquisition or rehabilitation of a project located in
an area identified by the Federal Emergency Management Agency (FEMA) as having special flood
hazards, unless: (A) the community in which the area is situated is participating in the National Flood
Insurance Program, or less than a year has passed since FEMA notification regarding such hazards;
and (B) flood insurance is obtained as a condition of approval of the commitment; and (C) the
Agency is responsible for assuring that flood insurance under the National Flood Insurance Program is
obtained and maintained.
Section 10. Reauests for Disbursements of HOME Grant Funds
10.1 The Participant, in its sole discretion, shall be responsible for the selection of the
contractors to undertake and cause the Improvements to the Rental Units or the Property.
10.2 The Participant may not request disbursement of HOME Grant funds until the funds are
needed for payment of the Improvements. The amount of each request must be limited to the amount
requested through approved invoicing reflecting the completed work related to the Improvements.
Section 11. Records and Reports
11.1 The Agency will require that the Participant maintain and supply the Agency, upon
written request, the following records and reports for the Affordability Period in order to assist the
Agency in meeting its record keeping and reporting requirements:
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(i) Improvements conducted on the Property and all corresponding invoices and
documentation;
(ii) Property management, maintenance and operation costs, including the Reserve
Fund and related records;
(iii) Files on the annual review and certification of all applicable tenant income;
(iv) Terms and conditions of all signed leasehold agreements between tenants and
Participant; and
(v) Any legal reports and records required by City Attorney's Office or the Agency,
as requested.
11.2 The Agency, will review the Property annually for the Affordability Period for:
(i) recertification of tenant income; (ii) review of rent and utility allowances; (iii)
on-site inspections for compliance with Section 8 Housing Quality Standards; and (iv) review of
Participant compliance with this HOME Grant Agreement.
Section 12. Indemnification
The Participant shall indemnify and hold harmless the Agency and the City and the officials,
officers, attorneys, employees and agents of the City and the Agency from and against any and all
claims or liability arising from Participant's actions under this HOME Grant Agreement or from the
conduct of the Participant's business or from any activity, work or things done, permitted or suffered
by the Participant and shall further indemnify and hold harmless the Agency and the City and their
officials, officers, attorneys, employees and agents from and against any and all claims arising from
any breach or default in the performance of any obligation of the Participant under the terms of this
HOME Grant Agreement arising from any negligent or wrongful act or omission of the Participant or
the Participant's agents, contractors, employees or invitees and from and against all costs, attorneys'
fees, expenses and liability incurred in the defense of any such claim or any action or proceeding
brought thereon. The Participant's agreement to indemnify and hold the Agency and the City harmless
shall extend to any claims or liabilities, including but not limited to claims pertaining to environmental
conditions, alleged construction defects, or other matters, that may arise as a result of the Participant's
ownership, management and operation of the Property. For the purposes hereof, "attorneys' fees"
means and includes the salaries and benefits of lawyers employed by the Office of the City Attorney of
the City of San Bernardino who provide legal services to the Agency in connection with any such
enforcement proceedings. Notwithstanding the foregoing, during the term of the HUD Documents, the
11
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Agency and City shall not exercise any of the remedies set forth in Section 12 without the prior written
approval ofHUD, if applicable.
Section 13. Breach and Termination
(a) rRESERVED-NO TEXT]
(b) Defaults and Breach - General. Failure or delay by either party to perform any material
term or provision of this HOME Grant Agreement shall constitute a default under this HOME Grant
Agreement; provided, however, that if the party who is otherwise claimed to be in default by the other
party commences to cure, correct or remedy the alleged default within thirty (30) calendar days after
receipt of written notice specifying such default and shall diligently complete such cure, correction or
remedy, such party shall not be deemed to be in default hereunder.
The party, which may claim that a default has occurred, shall give written notice of
default to the party in default, specifying the alleged default. Delay in giving such notice shall not
constitute a waiver of any default nor shall it change the time of default; provided, however, the
injured party shall have no right to exercise any remedy for a default hereunder without delivering the
written default notice as specified herein.
Any failure to delay by a party in asserting any of its rights and remedies as to any
default shall not operate as a waiver of any default or of any rights or remedies associated with a
default. Except with respect to rights and remedies expressly declared to be exclusive in this Home
Grant Agreement, the rights and remedies of the parties are cumulative and the exercise by either party
of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different
times, of any other rights or remedies for the same default or any other default by the other party.
In the event that a default of either party may remain uncured for more than thirty (30)
calendar days following written notice, as provided above, a "breach" shall be deemed to have
occurred. In the event of a breach, the party who is not in default shall be entitled to terminate this
HOME Grant Agreement and seek any appropriate remedy or damages by initiating legal proceedings,
if necessary.
(c) In the event that either party brings an action to enforce any condition or covenant,
representation or warranty arising out of this HOME Grant Agreement, the prevailing party in such
action shall be entitled to recover from the other party reasonable attorneys' fees to be fixed by the
court in which a judgment is entered, as well as the costs of such suit. For the purposes of this Section
l4( c), the words "reasonable attorneys' fees" in the case of the Agency include the salaries, costs, and
overhead oflawyers employed in the Office of the City Attorney of the City of San Bernardino.
12
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Section 14. Enforcement of this Al!reement
14.1 The Agency shall have the right, by prior written notice to the Participant, to enforce all
of the provisions of this HOME Grant Agreement. Should any such violation be brought to the
attention of the Agency regarding the Property, the Agency shall have the right, by prior written notice
to Participant, to suspend or terminate this HOME Grant Agreement and may avail itself of all
remedies under this HOME Grant Agreement and the HOME Regulatory Agreement.
14.2 The Agency at its discretion may terminate this HOME Grant Agreement, in whole or
in part, by giving Participant written notice in accordance with 24 CFR Part 85.44.
Section 15. Monitorinl!
The Agency is responsible for managing the day-to-day operations of its HOME Program
including monitoring the performance of all entities receiving HOME funds from the Agency to ensure
compliance with the requirements of 24 CFR Part 92, and for taking appropriate action when
performance problems arise.
Section 16. HUD Provisions
16.1 Notwithstanding anything herein to the contrary, in the event the Secretary of the U.S.
Department of Housing and Urban Development (hereinafter "Secretary") should take title to the
Property through foreclosure, deed-in-lieu of foreclosure, or otherwise, all covenants, conditions and
restrictions set forth in this HOME Grant Agreement shall cease and terminate and be of no further
force or effect.
16.2 Notwithstanding anything herein to the contrary, in the event any provision in this
HOME Grant Agreement tends to contradict, modify or in any way change the terms of Amendment
No. 1 to the 1995 Regulatory Agreement encumbering the Property described therein entered into
between the Secretary and the Participant, the terms of Amendment No.1 to the 1995 Regulatory
Agreement shall prevail and govern; or if any provision of this HOME Grant Agreement in any way
tends to limit the Secretary in his administration of the Housing Act of 1959, as amended, or the
regulations pursuant thereto, this HOME Grant Agreement shall be deemed amended so as to comply
with the Act, the regulations and the aforementioned Amendment No. 1 to the 1995 Regulatory
Agreement, if applicable.
16.3 Notwithstanding any statement in this HOME Grant Agreement to the contrary, no
amendment to this HOME Grant Agreement shall be effected without the prior written approval of the
Secretary, his successor or assigns during the term of the HUD Mortgage Documents, if applicable.
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16.4 If applicable, during the term of the HUD Mortgage Documents any payments due to
the Agency pursuant to the terms of this HOME Grant Agreement shall be made only from residual
receipts as defined in the applicable Regulatory Agreement and with the prior written approval of
HUD.
IN WITNESS HEREOF, the Agency and Participant have executed this HOME Grant
Agreement as of the date first hereinabove set forth.
Date 7/1 /,-:>
/
PARTICIPANT
Highland Lutheran Senior Housing, Inc.
a California Nonprofit Corporation
Date 'l'{;bf ')h);-
By:
Title:
Approved as to Form and Legal Content
ti:"LtCJ
14
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CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
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@ 1999 National Notary Association. 9350 De Soto Ave., P.O. Box 2402 . Chatsworth, CA 91313-2402' www.NationaINotary_org
Prod. No. 5907
Reorder: Call Toll-Free 1-800-876-6827
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
County of San Bernardino
r
ss.
State of California
On August 16, 2005, before me, Wasana Chantha, Notary Public, personally appeared
Gary Van Osdel.
0' personally known to me
D proved to me on the basis of satisfactory
evidence
~------------~
.~' WASANA CHANTHA
_ ./1""",\ Commission # 1380487 z
"i :p~,,""' '~',,' ,~I Notary Public - California j;
z '\i~...:1 Son Ilernordino County -
'{~~::. My Comm. Expires Oct18. 2006
to be the person whose name is subscribed to
the within instrument and acknowledged to
me that he executed the same in his
authorized capacity, and that by his signature
on the instrument the person, or the entity
upon behalf of which the person acted,
execut d the instrument.
'\
Place Notary Seal Above
hand and official seal.
Signature of Notary Public
Though the information below is not required by law. it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: 2005 HOME Grant Agreement by and between
Redevelopment Agency of the City of San Bernardino and
Highland Lutheran Senior Housing, Inc.
Document Date: August 15, 2005
Number of Pages: 24
Signer(s) Other Than Names Above: None
Capacity(ies) Claimed by Signer
Signer's Name: Gary Van Osdel
D Individual
D Corporation Officer - Title(s):
D Attorney in Fact
0' Other: Executive Director
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
Signer is Representing: Redevelopment Agency of the
City of San Bernardino
EXHIBIT "A"
Legal Description of the Parcel
PARCEL 1 OF PARCEL MAP NO. 13863, IN THE CITY OF SAN BERNARDINO, COUNTY
OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 164
OF PARCEL MAPS, PAGES 6 AND 7, RECORDS OF SAID COUNTY.
Amendment No.1 to the 1995 Regulatory Agreement
This Amendment No. 1 to the hereinafter described Regulatory Agreement is dated as of this
15th day of August, 2005, and is by and among the Redevelopment Agency of the City of San
Bernardino (the "Agency"), Highland Lutheran Senior Housing, Inc. (the "Borrower"), and First
Trust of California, National Association, as trustee under the Bonds as herein described (the
"Trustee").
Whereas, the Agency has provided certain proceeds to the Borrower from the issuance of the
Bonds as defined in that certain "Regulatory Agreement and Declaration of Restrictive Covenants"
dated as of July 1, 1995, by and among the Agency, the Borrower and the Trustee (the "Regulatory
Agreement"), entered into for the purpose of assuring compliance with certain rental income rates
as required for the issuance of the Bonds; and
Whereas, the Agency has provided an additional grant equal to $250,000 to the Borrower
from HOME funds for which the Borrower in its role as the Participant has executed a "2005
HOME Grant Agreement" with the Agency which necessitates an amendment to the Regulatory
Agreement to extend the period for which the restrictions and covenants of the Regulatory
Agreement shall remain in full force and effect for the rental of the units to very low income tenants
and which further requires an additional twenty percent (20%) of the units be set aside for tenants
whose gross adjusted income does not exceed eighty percent (80%) of the area median income all
as more particularly set forth hereinafter.
NOW, THEREFORE, the Borrower, the Agency, and the Trustee, each in consideration of
the restrictions, covenants and agreements of the others as set forth herein, mutually represent,
covenant and agree as follows:
Section 1. The Regulatory Agreement is hereby amended by the replacement of Section
2(a) as set forth therein with the following language:
"The term of the Occupancy Restrictions commenced on the first day on which 10% of the
units in the Project were first occupied and shall end on the later of (i) the date which is 30
years after the date on which at least 50% of the units in the Project were first occupied, (ii)
15 years after the first day on which none of the Bonds or any other tax-exempt private
activity bonds issued with respect to the Project are outstanding, or (iii) 15 years after the
termination date for any assistance provided with respect to the Project under Section 8, or
such other date as to which an opinion of Bond Counsel is delivered to the trustee to the
effect that termination of the Occupancy Restrictions on such date will not adversely affect
the exclusion of interest on the Bonds from gross income for federal income tax purposes."
Section 2. The Regulatory Agreement is further amended by the insertion of the following
language at the end of Section 4(a) thererof:
"In addition to the requirement herein for the Project to be occupied by Qualifying Tenants
and Very Low Income Tenants, an additional 20% of the units in the Project shall be
occupied (or treated as occupied as provided herein) or held vacant and available for
occupancy by tenants who are an individual or family whose combined adjusted income
(computed in the manner prescribed in Section 1.167(k)-3(b)(3) of the Treasury regulations
as in effect on the date of issuance of the Bonds and treating all occupants as a single
family) does not exceed 80% of the area median gross income, with adjustments for smaller
and larger families as set forth in Exhibit A to this Regulatory Agreement, and such units
will be of comparable quality and will be a range of sizes and number of bedrooms
comparable to those units which are available to other tenants."
Section 3. The Regulatory Agreement shall also secure the performance of the other
covenants, conditions and agreements as contained in that 2005 HOME Grant Agreement as entered
into by the Borrower in its role as the Participant pursuant to said 2005 HOME Grant Agreement.
The Agency shall be entitled to enforce all applicable provisions of the 2005 HOME Grant
Agreement, which are not inconsistent with the terms and provisions of the Regulatory Agreement.
IN WITNESS WHEREOF, the parties have caused this Amendment No. I to the Regulatory
Agreement to be signed by their respective duly authorized representatives, as of the day and year
first written above.
Highland Lutheran Senior Housing, Inc.
a California Nonprofit Corporation
Br1~~-
T e:_~~~
ATTEST:
RedevelopmenJ,Agency of the City
/'
of San Be91ardino .../ /'
(/ // / /
By: ,VJ;: t<i;/ 2 /~t:: -"'"I /
ExepUtive Director
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"By: ~
secret) f)t fV7 D/Nc./VV
EXHIBIT "C"
City of San Bernardino
Economic Development Agency
HOME
CERTIFICATION/ANNUAL RECERTIFICATION OF TENANT ELIGIBILITY
Rental Unit:
Street Address:
City:
Bedroom Size:
Unit No.:
Zip Code:
IJWe, the undersigned, being first duly sworn, state that IJwe have read and answered fully and
truthfully each of the following questions for all persons who are to occupy the unit in the above
apartment development for which application is made, all of whom are listed below:
HOUSEHOLD Age Ethnicity Social Security # Place of
Employment
Name of Members Relationship
Date of Occupancy of Rental Unit by Tenant:
Date of Lease Signed for Rental Unit by Tenant:
Certification Date (Earlier of Date of Occupancy or Date Lease Signed):
Anticipated Annual Income
The anticipated total annual income from all sources of each person listed in above for the twelve
month period beginning on the Certification Date listed above, including income described in (a)
below, but excluding all income described in (b) below, is $
(a) The amount set forth above includes all of the following mcome (unless such income IS
described in (b) below):
(i) all wages and salaries, overtime pay, commissions, fees, tips and bonuses before payroll
deductions;
(ii) net income from the operation of a business or profession or from the rental of real or
personal property (without deducting expenditures for business expansion or amortization
of capital indebtedness or any allowance for depreciation of capital assets);
(iii) interest and dividends (including income from assets as set forth in item (b) below);
lof4
(iv) full amount of periodic payments received from Social Security, annUItIes, insurance
policies, retirement funds, pensions, disability or death benefits and other similar types of
periodic reports;
(v) payments in lieu of earnings, such as unemployment and disability compensation,
worker's compensation, and severance pay;
(vi) the maximum amount of public assistance available to the above persons;
(vii) periodic and determinable allowances, such as alimony and child support payments and
regular contributions and gifts received from persons not residing in the dwelling;
(viii) all regular pay, special pay and allowances of a member of the Armed Forces (whether or
not living in the dwelling) who is the head of the household or spouse; and
(ix) any earned income tax credit to the extent it exceeds income tax liability.
(b) The following income is excluded from the amount set forth above:
(i) casual, sporadic, or irregular gifts;
(ii) amounts that are specifically for or in reimbursement of medical expenses;
(iii) lump sum additions to family assets, such as inheritances, insurance payments (including
payments under health and accident insurance and worker's compensation), capital gains
and settlement for personal or property losses;
(iv) amounts of educational scholarships paid directly to student or educational institution,
and amounts paid by the government to a veteran for use in meeting the costs of tuition,
fees, books and equipment, but in either case only to the extent used for such purposes;
(v) hazardous duty pay to a member of the household in the armed forces who is away from
home and exposed to hostile fire;
(vi) relocation payments under Title II of the Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970;
(vii) income from employment of children (including foster children) under the age of 18
years;
(viii) foster child care payments;
(ix) the value of coupon allotments under the Food Stamp Act of 1977;
(x) payments to volunteers under the Domestic Volunteer Service Act of 1973;
20f4
(xi) payments received under the Alaska Native Claims Settlement Act;
(xii) income derived from certain submarginal land of the United States that is held in trust for
certain Indian tribes;
(xiii) payments on allowances made under the Department of Health and Human Services'
Low-Income Home Energy Assistance Program; and
(xiv) payments received from the Job Partnership Training Act
Net Family Assets
If any of the persons described in Members of the Household (or any person whose income or
contributions were included in Anticipated Annual Income has any savings, stocks, bonds, equity in
real property or other form of capital investment (excluding interest in Indian trust lands), provide:
(a)
the total value of all such assets owned by all such persons: $
, and
(b) the amount of income expected to be derived from such assets in the 12-month period
commencing this date: $
Students
(a) Will all of the persons listed in Members of Household above be or have they been fulltime
students during five calendar months of this calendar year at an educational institution (other
than a correspondence school) with regular faculty and students? 0 Yes 0 No
(b) If yes, is any such person (other than non-resident aliens) married and eligible to file a joint
federal income tax return? 0 Yes 0 No
The above information is full, true, and complete to the best of my knowledge. I have no objections
to inquiries being made for the purpose of verifying the statements made herein.
I acknowledge that all of the above information is relevant to the status under federal law of the
HOME funds used in the acquisition and rehabilitation of the Project for which application is being
made. I consent to the disclosure of such information to the Economic Development Agency of the
City of San Bernardino, County, State and Federal Department of Housing and Urban Development
or agent acting on their behalf and any authorized agent of the Treasury Department or Internal
Revenue Service.
Date:
Signature:
(Signature Must be Notarized)
30f4
FOR COMPLETION BY
ONLY:
A. Calculation of Eligible Income
(1) Enter amount entered for entire household in Anticipated Annual Income: $
(2) If the amount entered in (a) of Net Family Assets above is greater than $5,000, enter:
(i) the product of the amount entered in (a) of Net Family Assets above multiplied by
the current passbook savings rate as determined by HUD $
(ii) the amount entered in (b) of Net Family Assets above: $
(iii) enter the greater of line (i) or line (ii): $
(3) TOTAL ELIGIBLE INCOME [Line A (1) plus line A (2) (iii)] $
B. Enter Number of family members listed in item 1 above:
C. The amount entered in A (3) (Total Eligible Income) is
$
o Less than $ of median income for the area in which the Project is located, which is the
maximum income at which a household may be determined to be a Qualifying Tenant as
that term is defined in the Grant Agreement and Declaration of Restrictive covenants (the
"Regulatory Agreement") ("Qualifying Tenant").
o More than the above-mentioned amount.
D. Number of apartment units assigned:
E. Monthly Rent:
$
F. This apartment unit (was/was not) last occupied for a period of thirty one (31) consecutive days
by a person or persons whose adjusted income, as certified in the above manner, was equal to or
less than the amount at which a person would have qualified as a Qualifying Tenant under the
terms of the Regulatory Agreement.
G. Applicant:
o Qualifies as a Qualifying Tenant, household income is at or below 50% of the area median
Income
o Qualifies as a Qualifying Tenant, household income is at or below 60% of the area median
Income
o Qualifies as a Qualifying Tenant, household income is at or below 80% of the area median
Income
o Does Not Qualify as a Qualifying Tenant
40f4
EXHIBIT "D"
HOME Rent Schedule
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