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Subrecipient Agreement; Boulder Broomfield HOME Consortium, City of Longmont; distributuion of HOME funds (5) 5/16/2018 Contract Tracking>Thank You OFFICE OF T4E CITY ATTORNEY MAY 18 2018 STANDARD TO: Contract Routing Cover Sheet Please print and attach to your document You can view the status of your contract using the Contract Tracking Status Page. Routing Number 20180516-4245 Originating Dept Housing Contact Person Cori Marin Phone Number 13034414134 Project Manager / Contract Kate Mas!nga!e E-mail masingalek@bouldercolorado.gov Administrator Counter Parties City of Longmont, Colorado Contract Title / Type Subreci lent Agreement with the Boulder Broomfield Regional HOME Consortium Number Description Please find attached a Subrecipient Agreement with the Boulder Broomfield Regional HOME Consortium for the City of Longmont and theirFall River Project. This has been previously reviewed by Erin Poe. Special Instructions Once Executed, please email and interoffice the original to the attention of Kate Masingale. Thank you! Amount $1,426,940..055y— xpense Type INCOMING • Dept. Head Signature _ �✓1/ < - — T� _—_ ___v_` NOTE; Originating Departmen•. Identify w` a Check mark all areas document needs to be routed. • Purchasing • Budget • Sales Tax • CAO X GIS • City Manager X • Central Recordsh - iV r i `7 r`3 w r : https://work.bouldercolorado.gov/ContractTrack!ng/servlet/Controller 1/1 SUBRECIPIENT AGREEMENT BETWEEN THE BOULDER BROOMFIELD REGIONAL HOME CONSORTIUM AND THE CITY OF LONGMONT This Subrecipient Agreement ("Agreement') is made this 9�-day of �0� 2018 by and between the City of Boulder, as the Lead Agency for the Boulder Broomfield Regional . onsortium (hereinafter the "Consortium"), and the City of Longmont, Colorado(hereinafter the "Subrecipient'). RECITALS: WHEREAS, the United States Government, through the National Affordable Housing Act of 1930, has established the HOME Investment Partnerships Act Program ("HOME" or "HOME Program" or "the Act'), and WHEREAS, the City and County of Broomfield, Boulder County, the Subrecipient and the City of Boulder entered into a HOME Consortium Intergovernmental Agreement dated June 27, 2006 (the "Intergovernmental Agreement'), by which the parties thereto agreed to participate in the Consortium for the purpose of implementing a regional HOME Program under the federal HOME Investment Partnerships Act Program; and WHEREAS, the Intergovernmental Agreement was subsequently amended to include additional incorporated cities and towns by name into the Intergovernmental Agreement; and WHEREAS, the Intergovernmental Agreement designated the City of Boulder as the Lead Agency to act in a representative capacity for all of the parties thereto; and WHEREAS, Section 216 (2) of the Act, 42 U.S.C. 12746, provides that a consortium of geographically contiguous or overlapping geographical areas within which separate legal governmental subdivisions operate can be considered to be a single unit of general local government for the purposes of receiving an allocation and participating in the HOME Program; and WHEREAS, in June 2006 the Consortium submitted its Intergovernmental Agreement to the U.S. Department of Housing and Urban Development(hereinafter"HUD")for this purpose; and WHEREAS, in its application for HOME funds the Consortium declared its intent to provide HOME funds to the Subrecipient for its use in continuing its affordable housing program; and WHEREAS, the Subrecipient has heretofore expressed its intent to assume responsibility from the Consortium for its affordable housing program with HOME funds and in accordance with HOME regulations; and WHEREAS, on March 30, 2007, HUD notified the Consortium that HUD had approved its request to participate as a consortium in the HOME program; and WHEREAS, on July 22, 2015, October 12, 2016, and November 8, 2017 the Consortium executed a HOME Grant Agreement with HUD to govern expenditure of HOME funds by the Consortium. NOW, THEREFORE, in consideration of the matters set forth above and below, the parties agree as follows. Section 1. Definitions.Whenever used in this Agreement: A. The term "Grant Agreement' means the agreement between the Consortium and HUD executed by the Consortium on July 22, 2015, October 12, 2016, and November 8, 2017 in connection with the HOME Program (the"Program"). 1 B. The terms "grant" and "grant funds" mean the assistance provided under this Subrecipient Agreement. C. The term "matching funds" means the permanent contribution to housing assisted in the HOME Program. Section 2. Purpose of Subrecipient Agreement. The purpose of this Agreement is to set forth the terms and conditions under which the Consortium shall grant HOME funds to the Subrecipient for its affordable housing projects. This Agreement sets forth rights and responsibilities of both parties in connection with the Subrecipient's program. In this Agreement, the Subrecipient assumes full responsibility for adherence to all applicable laws, assurances, regulations, and guidelines associated with the Program. Section 3 Applicable Laws, Assurances, Regulations, Guidelines. The financial assistance which is the subject of this Agreement is authorized by Title II of the Cranston- Gonzalez National Affordable Housing Act of 1990, as amended, 42 U.S.C. 12701 et seq. Section 4. Compliance with Federal. State and Local Laws. The Subrecipient shall comply with all applicable laws and regulations of the United States, State of Colorado, and the City including, without limitation, all rules, regulations, and guidelines of the U.S. Department of Housing and Urban Development, except for the environmental responsibilities and review process under Executive Order 12372, which are the responsibility of the City. The Subrecipient shall comply with all applicable provisions of 24 CFR 92, Subpart H entitled "Other Federal Requirements" which is found attached to this Agreement as Exhibit A. The Subrecipient shall comply with applicable uniform administrative requirements, as described in 24 CFR §92.505. In addition, if a project(other than a tenant-based rental assistance project) contains five or more HOME Assisted Units, the Subrecipient shall comply with the City's Affirmative Marketing Strategy. Subrecipient shall comply with income limits and other requirements contained 24 CFR § 92.252 and 24 CFR § 92.254 for rental housing and homeownership projects, respectively. Section 5. Grant Award. Subject to the terms of the Grant Agreement and this Agreement, the Consortium agrees to provide up to $1,448,386.71 in 2015, 2016, and 2017 HOME funds (CFDA # 14.239) to the Subrecipient for activities identified as the responsibility of the Subrecipient. The Subrecipient agrees that $21,446.66 of these funds will be relinquished back to the City of Boulder for the Regional Affordable Housing Program coordinator position, leaving total funds awarded at $1,426,940.05 and pursuant to this Agreement shall be used for the following purposes: Fall River- Longmont Housing Development Corporation—New Construction Project 1,417,062.65 2017 Longmont Administrative Funding 9,877.40 Total Award 1,426,940.05 The Subrecipient may change the listed purposes and allocated amounts without amending this Agreement provided that the changes qualify as "Minor Changes" as defined in Section G of the Citizen Participation Plan adopted by the Consortium and approved by HUD as part of the 2015-2019 Consolidated Plan. 2 A description of each of the projects listed above, including the tasks to be performed, a schedule for completing the tasks and a budget, is attached as Exhibit B. If the Subrecipient provides the grant funds to for-profit owners or developers, nonprofit owners or developers, subrecipients, homeowners, homebuyers, tenants receiving Tenant Based Rental Assistance, or contractors, the Subrecipient must have a written agreement with the recipient which meets the requirements of 24 C.F.R. §92.504. Funds must be fully expended within two years of the Agreement being signed. Section 6. Matching Funds. The Subrecipient agrees to provide matching funds in an amount equal to no less than 25 percent of the total HOME funds drawn down for all project costs except administration. The match obligation may be met with any of the following specific sources. Cash or cash equivalents from a non-federal source; :1 Value of waived taxes, fees or charges associated with HOME projects; C Value of donated land or real property; E Cost of infrastructure improvements associated with HOME projects; E A percentage of the proceeds of single- or multi-family housing bonds issued by state, state instrumentality, or local government; 11 Value of donated materials, equipment, labor, and professional services; Sweat equity. The Subrecipient acknowledges and agrees that the Consortium shall not be responsible for providing the Subrecipient with any funds to meet the Subrecipient's matching requirements. Section 7. Eligible Costs. The following costs are eligible under HOME Program regulations at 24 CFR 92 and will be funded with 2015, 2016, and 2017 HOME funds under this Agreement: A. Administrative Costs: The Subrecipient shall use its administration grant to pay for administrative and planning costs. Administrative costs include the costs associated with accounting for the use of grant funds, preparing reports for submission to the Consortium, compliance with the Program, similar costs related to administering the grant after the award, and staff salaries associated with these administrative costs, Section 8. Disbursements. The Subrecipient understands and agrees that a request for disbursement of HOME funds pursuant to this Agreement shall not be made until such funds are needed to pay eligible costs related to a project. Subrecipient understands and agrees that funding in the full amount of this Agreement is contingent upon the Consortium receiving said HOME funds, and should the entitlement funds be discontinued or reduced for any reason, Subrecipient understands and agrees that funding under this Agreement could cease or be reduced without advance notice. The Subrecipient shall: A. Maintain adequate documentation to demonstrate the eligibility of persons benefiting from HOME funds; 3 B. Maintain records that show the eligible costs and operating costs of the program; C. Use required forms to show participant eligibility, which must be maintained in Subrecipient file; D. Submit proper documentation of eligible expenses for match to the Consortium on an annual basis; E. Submit quarterly reports to the Consortium; F. Maintain files and records as required which relate to the overall administration of the Program; and G. Provide information for the Consolidated Annual Performance and Evaluation Report (CAPER) within required timeframes. Program Income received by the Subrecipient shall be retained by the Subrecipient for additional eligible activities. Program income must be disbursed before the Subrecipient requests funds from the Consortium. Section 9. Notices. Any notice, demand, request, or other communication that either party may desire or may be required to give to the other party hereunder shall be given in writing at the addresses set forth below by any of the following means: (a) personal service; (b) electronic communication whether by telegram, telecopier, or email, together with confirmation of transmission; or(c)first-class United States mail, postage prepaid. TO THE CONSORTIUM: Community Investment Program Manager Division of Housing City of Boulder PO Bax 791 1300 Canyon Blvd. Boulder, Colorado 80306 TO THE SUBRECIPIENT: Housing and Community Investment Manager Civic Center Complex 350 Kimbark Street Longmont, CO 80501 Section 10. Default. A default shall consist of any use of grant funds for a purpose other than as authorized herein, failure of the Subrecipient to provide the projects in the minimum amounts and for the minimum time period in accordance with the requirements set forth in Exhibit B, noncompliance with the Act or provisions of Exhibit A, or any other material breach of the Agreement. Upon due notice to the Subrecipient of the occurrence of any such default and the provision by the Consortium of a reasonable opportunity to respond, the Consortium may take one or more of the following actions. If it is the decision of the Consortium to require the repayment to the Consortium of any grant funds provided to the Subrecipient, the Subrecipient agrees to promptly pay back to the Consortium all such funds up to the amount of grant funds provided to them by the Consortium (hereafter called 'Recapture"). A. Direct the Subrecipient to submit progress schedules for completing approved activities; B. Issue a Letter of warning advising the Subrecipient of the default, establishing a date by which corrective actions must be completed and putting the Subrecipient on notice that more serious actions will be taken if the default is not corrected or is repeated; C. Direct the Subrecipient to establish and maintain a management plan that assigns responsibilities for carrying out remedial actions; D. Direct the Subrecipient to suspend, discontinue, or not incur costs for the affected activity; E. Reduce or recapture the grant authorized herein; 4 F. Direct the Subrecipient to reimburse the Consortium for costs inappropriately charged to the Consortium; and G. Other appropriate action including, but not limited to, any remedial action legally available. No delay or omission by the Consortium in exercising any right or remedy available to it under this Agreement shall impair any such right or remedy or constitute a waiver or acquiescence in any Subrecipient default. Section 11, Reversion of Assets. Upon expiration or termination of this Agreement the Subrecipient shall transfer to the Consortium any HOME funds on hand at that time and any accounts receivable attributable to the use of HOME funds. Any real property acquired or improved in whole or in part with HOME funds must continue to be used for the purpose for which it was acquired or improved. Any changes in its use must be approved by the Consortium in writing. Section 12. Procurement. All procurement transactions for supplies, equipment and services will be conducted in a manner to provide, to the maximum extent practicable, open and free competition. Subrecipient will comply with all bidding and purchasing regulations of all applicable local and federal laws and requirements. Section 13. Monitoring. The Consortium will monitor and evaluate this Agreement with the Subrecipient. The Agreement will be monitored for compliance with the rules, regulations, requirements and guidelines which the Consortium has promulgated or may promulgate. The terms of this Agreement will also be subject to monitoring and evaluation by HUD. Section 14. Other Applicable Laws. All projects undertaken pursuant to this Agreement shall be subject to all applicable State statutes, home rule charter provisions, assessment, planning, zoning, sanitary and building laws, ordinances and regulations. Section 15. Nondiscrimination. Subrecipient will comply with all applicable State and Federal laws, rules, and regulations involving non- discrimination on the basis of race, color, religion, national origin, age, handicap, or sex. Section 16. Severability. Invalidation of any one or more of the provisions of this Agreement shall in no way affect any of the other provisions thereof, which shall remain in full force and effect. Section 17. Indemnification. The Consortium and Subrecipient assume responsibility for the actions and omissions of its agents and its employees in the performance or failure to perform work under this Agreement. It is agreed that such liability for actions or omissions of its own agents and employees is not intended to increase the amounts set forth in the Colorado Governmental Immunity Act, now existing, or as may be amended. By agreeing to this provision, the parties do not waive nor intend to waive the limitations on liability which are provided to the parties under the Colorado Governmental Immunity Act§ 24-10-101 et seq., C.R.S., as amended. 5 Section 18. Miscellaneous Provisions. A. Assignment. The Subrecipient shall not assign this Agreement without the written consent of the Consortium, which it may withhold at its sole discretion. The Subrecipient may, however, enter into agreements with its own subrecipients if necessary to complete the projects noted in Section 5 without the written consent of the Consortium or the Lead Agency. B. Termination, This Agreement may be terminated by either party if it has been materially breached by the other party and proper notification is tendered. Consortium may, at any time, terminate this Agreement, in whole or in part, for its own convenience. Consortium shall pay Subrecipient for work satisfactorily completed, to the date of termination; the Consortium shall determine the portion of work completed. Notification of intent to terminate this Agreement shall be given in writing thirty(30) days prior to the date of termination. C. No Third Party Beneficiaries. It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement and all rights of action relating to such enforcement, shall be strictly reserved to the Consortium and the Subrecipient. Nothing contained in this Agreement shall give or allow any claim or right of action whatsoever by any other third person. It is the express intention of the Consortium and the Subrecipient that any such party or entity, other than the Consortium or the Subrecipient, receiving services or benefits under this Agreement shall be deemed an incidental beneficiary only. D. Waiver. The waiver of any breach of a term, provision, or requirement of this Agreement shall not be construed or deemed as waiver of any subsequent breach of such term, provision, or requirement, or of any other term, provision, or requirement. E. Amendments. This Agreement is intended as the complete integration of all understandings between the parties. No prior or contemporaneous addition, deletion, or other amendment hereto shall have any force or effect whatsoever, unless embodied herein in writing. No subsequent notation, renewal, addition, deletion, or other amendment hereto shall have any force or effect unless embodied in a writing executed and approved by the Consortium pursuant to Consortium rules. F. Authority to Sign. The parties warrant that the individuals executing this Agreement are properly authorized to bind them to this Agreement. G. All of the Subrecipient's financial obligations under this Agreement are contingent upon appropriation, budgeting, and availability of specific funds to discharge those obligations. Nothing in this Agreement constitutes a debt, a direct or indirect multiple fiscal year financial obligation, a pledge of the Subrecipient's credit, or a payment guarantee by the Subrecipient to the Consortium. H. Term of Agreement. This Agreement shall expire when the last HOME period of affordability governing the projects undertaken with the grant funds has expired. I. Eligibility of Subrecipient. The Subrecipient represents and warrants that it and its principals are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency. In witness whereof, the parties hereto have hereunto set their hands and seals on the day and year first above written. [SIGNATURE PAGE FOLLOWS] 6 City of Boulder, as lead agency for the Boulder County/Broomfield County HOME Consortium Byv -S �^ ATTEST: Jane S. Brautigam City ofiu er Ilerk City Manager Approved as to form and legality: Boulder City Attorney �r LO Subrecipient: City of Longmont Attest: Q Brian ey City Clerk OR Mayor Approved as to Form: Approved as to Insurance Provisions: Dep ity ii A/ttor ey' Risk Manager Proofread Approved as to Form and Content: I Kat Fedle / Housing a d Co munity Investment Manager 7 Exhibit A SUBPART H—OTHER FEDERAL REQUIREMENTS §92.350 Other Federal Requirements a. The Federal requirements set forth in 24 CFR part 5, subpart A, are applicable to participants in the HOME program. The requirements of this subpart include: nondiscrimination and equal opportunity; disclosure requirements; debarred, suspended or ineligible contractors; and drug-free workplace. b. The nondiscrimination requirements at section 282 of the Act are applicable. These requirements are waived in connection with the use of HOME funds on lands set aside under the Hawaiian Homes Commission Act, 1920 (42 Stat.108). §92.351 Affirmative Marketing; Minority Outreach Program a.Affirmative marketing. 1. Each participating jurisdiction must adopt affirmative marketing procedures and requirements for rental and homebuyer projects containing 5 or more HOME- assisted housing units. Affirmative marketing steps consist of actions to provide information and otherwise attract eligible persons in the housing market area to the available housing without regard to race, color, national origin, sex, religion, familial status or disability. (The affirmative marketing procedures do not apply to families with Section 8 tenant-based rental housing assistance or families with tenant- based rental assistance provided with HOME funds.) 2. The affirmative marketing requirements and procedures adopted must include: i. 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); ii. 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 of commercial media, use of community contacts, use of the Equal Housing Opportunity logotype or slogan, and display of fair housing poster); iii. 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); iv. 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 v. A description of how the participating jurisdiction will annually assess the success of affirmative marketing actions and what corrective actions will be taken where affirmative marketing requirements are not met. 3. A State that distributes HOME funds to units of general local government must require each unit of general local government to adapt affirmative marketing procedures and requirements that meet the requirement in paragraphs (a) and (b) of this section. 8 b. Minority outreach. 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. § 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. The jurisdiction (e.g., the participating jurisdiction or State recipient) or insular area 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. No funds may be committed to a HOME activity or project before the completion of the environmental review and approval of the request for release of funds and related certification, except as authorized by 24 CFR part 58. 2. A State participating jurisdiction must also assume responsibility for approval of requests for release of HOME funds submitted by State recipients. 3. HUD will perform the environmental review, in accordance with 24 CFR part 50, for a competitively awarded application for HOME funds submitted to HUD by an entity that is not a 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. b. Temporary relocation. The following policies cover residential tenants who will not be required to move permanently but who must relocate temporarilyfor 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 rentlutility costs. 2. Appropriate advisory services, including reasonable advance written notice of: i. The date and approximate duration of the temporary relocation; 9 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 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 passible, 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 B. Before the date described in paragraph (c)(2)(1)(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 buildinglcomplex 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: 10 i. The tenant's monthly rent before such agreement and estimated average monthly utility costs; or fl.The total tenant payment, as determined under 24 CFR 5.613, 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: L 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 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. Thejurisdiction 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 not subject to 11 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. Residential antidisplacement and relocation assistance plan. The participating jurisdiction shall comply with the requirements of 24 CFR part 42, subpart C. 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. § 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 any project costs in § 92.206, including construction or nonconstruction costs, of housing with 12 or more HOME-assisted units. When HOME funds are only used to assist homebuyers to acquire single-family housing, and not for any other project costs, the wage provisions apply to the construction of the housing if there is a written agreement with the owner or developer of the housing that HOME funds will be used to assist homebuyers to buy the housing and the construction contract covers 12 or more housing units to be purchased with HOME assistance. The wage provisions apply to any construction contract that includes a total of 12 or more HOME-assisted units, whether one or more than one project is covered by the construction contract. Once they are determined to be applicable, the wage provisions must be contained in the construction contract so as to cover all laborers and mechanics employed in the development of the entire project, including portions other than the assisted units. Arranging multiple construction contracts within a single project for the purpose of avoiding the wage provisions is not permitted. 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 12 the services for which the individual volunteered and who is not otherwise employed at any time in the construction work. See 24 CFR part 70. 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. § 92.355 Lead-based paint Housing assisted with HOME funds is subject to the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-4846), the Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 U.S,C. 4851- 4856), and implementing regulations at part 35, subparts A, B, J, K, M and R of this title. [64 FR 50224, Sept. 15, 1999] §92.356 Conflict of Interest a.Applicability. 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 24 CFR 84.42, respectively, apply. In all cases not governed by 24 CFR 85.36 and 24 CFR 84.42, the provisions of this section apply. 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 or State recipient'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; 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 13 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. f. Owners and Developers. 1. No owner, developer or sponsor of a project assisted with HOME funds (or officer, employee, agent or consultant of the owner, developer or sponsor)whether private, for profit or non-profit (including a community housing development organization (CHDO) when acting as an owner, developer or sponsor) may occupy a HOME-assisted affordable housing unit in a project. This provision does not apply to an individual who receives HOME funds to acquire or rehabilitate his or her principal residence or to an employee or agent of the owner or developer of a rental housing project who occupies a housing unit as the project manager or maintenance worker. 2. Exceptions. Upon written request of a housing owner or developer, the participating jurisdiction (or State recipient, if authorized by the State participating jurisdiction) may grant an exception to the provisions of paragraph (f)(1) of this section on a case-by-case basis when it determines that the exception will serve to further the purposes of the HOME program and the effective and efficient administration of the owner's or developer's HOME-assisted project. In determining whether to grant a requested exception, the participating jurisdiction shall consider the following factors: i. Whether the person receiving the benefit is a member of a group or class of low-income persons intended to be the beneficiaries of the assisted housing, 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; ii. Whether the person has withdrawn from his or her functions or responsibilities, or the decision making process with respect to the specific assisted housing in question; iii.Whether the tenant protection requirements of§ 92.253 are being observed; iv. Whether the affirmative marketing requirements of§ 92.351 are being observed and followed; and v. Any other factor relevant to the participating jurisdiction's determination, including the timing of the requested exception. 14 §92.357 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 HUD'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. b.Applicability. Executive Order 12372 applies to applications submitted with respect to HOME funds being competitively reallocated under subpart J of this part to units of general local government. §92.358 Consultant Activities No person providing consultant services in an employer-employee type relationship shall receive more than a reasonable rate of compensation for personal services paid with HOME funds. In no event, however, shall such compensation exceed the limits in effect under the provisions of any applicable statute (e.g., annual HUD appropriations acts which have set the limit at the equivalent of the daily rate paid for Level IV of the Executive Schedule, see the Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1997, Pub. L. 104-204 (September 26, 1996)). Such services shall be evidenced by written agreements between the parties which detail the responsibilities, standards, and compensation. Consultant services provided under an independent contractor relationship are not subject to the compensation limitation of Level IV of the Executive Schedule. 15 co B 3 3 \ � (N � } ] i § { \ & { _ § ( UJ 2 / § 0 CL E cc ] a \ 0 64 g \ 2 r- 0 0 E { E \ \ { f ; | 0 t ; !J ( ] j Z § CLI a a /