HomeMy WebLinkAbout15 LURA with exhibits Timber Ridge 5-6-20MBOH-REV DRC-6/2016 Page 1
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After recording return to:
Montana Board of Housing
MultiFamily Program
P.O. Box 200528 Helena, MT 59620-0528
DECLARATION OF RESTRICTIVE COVENANTS
FOR LOW-INCOME HOUSING TAX CREDITS
THIS DECLARATION OF RESTRICTIVE COVENANTS (this "AGREEMENT"), dated as of
, by Timber Ridge Apartments LP, and their successors and assigns (the "Owner") is given
as a condition precedent to the allocation of low-income housing credits by the Montana Board of Housing,
an agency of the State of Montana (together with any successor to its rights, duties and obligations, the
"Board").
W I T N E S S E T H:
WHEREAS, the Owner is or will be the owner of a rental housing development located on lands in
the City of Bozeman, County of Gallatin , State of Montana, more particularly described in Exhibit A-1,
attached hereto and incorporated herein by reference (together with all existing and later constructed
buildings and improvements thereon, the "Project Land" or the “Project”), known as or to be known as
Timber Ridge Apartments; and
WHEREAS, the Board has been designated by the Governor of the State of Montana as the low-
income housing credit agency for the State of Montana to make allocations of low-income housing tax
credits (the "Credit") for the State and to carry out the provisions of Section 42 of the Internal Revenue
Code of 1986, as amended (the "Code"); and
WHEREAS, the Owner has applied to the Board for an allocation of Credit to the Project in an
amount not to exceed $ 633,375.00 and
WHEREAS, the Owner has represented and committed to the Board in the Owner's Low-Income
Housing Tax Credit Application (the "Application") that, for the duration of this Agreement: (i) the Owner
shall lease 100% (the “Low-Income Occupancy Percentage”) of the units in the Project (the "Low-Income
Units") to individuals or families whose income is 60 % or less of the area median income (including
adjustments for family size) (the “Income Restrictions” and those individuals or families meeting the
Income Restrictions, the "Low-Income Tenants") as determined in accordance with the Code; (ii) the Owner
shall target such percentage of the Low-Income Units to tenants whose income is at or below the percentages of area median income as set forth in Exhibit A-2, attached hereto and incorporated herein by
reference (the “Targeting Requirements”); and (iii) the Owner shall not charge Low-Income Tenants lease
or rent payments exceeding the percentages of area median income as set forth in Exhibit A-2, attached
hereto and incorporated herein by reference (the “Rent Restrictions”)(the Low-Income Occupancy
Percentage, the Income Restrictions, the Targeting Requirements and the Rent Restrictions together
referred to herein as the “Occupancy Restrictions”); and
WHEREAS, the Board has determined the Project supports an allocation of Credit in the amount
of $633,375.00; and
WHEREAS, the Project is eligible for a Credit allocation only if the Project will be subject to a
binding commitment to maintain the Project as low-income housing for the duration of the Owner’s
Commitment Period, as defined in subsection 5(a) hereof, including certain Occupancy Restrictions and
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Transfer restrictions as set forth in this Agreement (the “Transfer Restrictions”); and
WHEREAS, in the Application, the Owner committed to maintain the Project as low-income
housing for a period of 31 years beyond and in addition to the initial 15-year compliance period (the
“Commitment Period”); and
WHEREAS, as a condition of an allocation of the Credits as described herein, the applicable
Qualified Allocation Plan (“QAP”) requires the Owner waive and forfeit the right to request the Board to
find a qualified buyer (the “Qualified Contract Process”), who agrees to maintain the Low-Income Units
throughout the entire Commitment Period, and agrees that the Commitment Period may not be terminated
early through the Qualified Contract Process; and
WHEREAS, the Code requires as a condition precedent to the allocation of the Credit that the
Owner execute, deliver and record in the official land deed records of the county in which the Project is
located this Agreement in order to create certain covenants running with the Project Land for the purpose
of enforcing the Occupancy Restrictions, Transfer Restrictions and other requirements of Section 42 of the
Code by regulating and restricting the use, occupancy and transfer of the Project as set forth herein; and
WHEREAS, the Board further requires as a condition precedent to the allocation of the Credit that
the Owner execute, deliver and record in the official land deed records of the county in which the Project is
located this Agreement, in order to create certain covenants running with the Project Land that the Owner
and the Project shall be subject to applicable requirements, including without limitation operating and
replacement reserves, record-keeping, reporting, training, certification, audit, inspection and other
compliance and enforcement requirements and payment of related fees to the Board, as set forth in Section
42 of the Code, and the Board’s rules, guidelines and applicable QAP (such requirements and fees together
referred to as the “Compliance Provisions”); and
WHEREAS, the Board further requires as a condition precedent to the allocation of the Credit that the Owner execute, deliver and record in the official land deed records of the county in which the Project is
located this Agreement, in order to create certain covenants running with the Project Land (the
“Enforcement Provisions”) for the purpose of enforcing the Occupancy Restrictions, Transfer Restrictions,
Energy and Green Building Requirements (as specified in Exhibit A-3, attached hereto and incorporated
herein by this reference) and Compliance Requirements (the Occupancy Restrictions, Transfer Restrictions,
Energy and Green Building Requirements, Compliance Restrictions and Enforcement Provisions together
referred to herein as the “Covenants”); and
WHEREAS, the Owner, under this Agreement, intends, declares and covenants that all Covenants
set forth herein, including without limitation the regulatory and restrictive covenants governing the use,
occupancy and transfer of the Project, shall be and are covenants running with the Project Land for the term stated herein (including any applicable Tenant Protection Period during which the Tenant Protections shall
continue in effect, as set forth in subsection 5(d) hereof) and binding upon all subsequent owners of the
Project for such term and are not merely personal covenants of the Owner;
NOW, THEREFORE, in consideration of the promises and covenants hereinafter set forth, and of
other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Owner
agrees as follows:
Section 1. Definitions. Words and phrases used herein shall have the same meaning as set forth in
Section 42 of the Code, in regulations pertaining thereto promulgated by the Department of Treasury, the
Department of Housing and Urban Development or another authorized federal agency or in the Board’s
rules, guidelines or applicable QAP.
Section 2. Recording and Filing; Covenants To Run With the Project Land; Consent of Prior Lien
Holders.
(a) Upon execution and delivery, the Owner shall cause this Agreement and any amendments
thereto to be recorded and filed in the official public land deed records of the county in which the Project is
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located and shall pay all fees and charges incurred in connection therewith. Upon recording, the Owner
shall immediately transmit to the Board an executed original of the recorded Agreement and any
amendment showing the date of recording and recording references. The Owner acknowledges and agrees
that the Board will not issue a Carryover Commitment or the Internal Revenue Service Form 8609(s)
constituting the final allocation of the Credit to the Project until the Board has received the recorded
executed original of this Agreement.
(b) The Owner intends, declares and covenants, on behalf of itself and all future owners and
operators of the Project during the term of this Agreement, that this Agreement and the covenants and
restrictions set forth in this Agreement, including without limitation those regulating and restricting the
use, occupancy and transfer of the Project Land and the Project: (i) shall be and are covenants running with
the Project Land, encumbering the Project for the term of this Agreement, binding upon the Owner's
successors in title and all subsequent owners and operators of the Project, (ii) are not merely personal
covenants of the Owner, and (iii) shall bind the Owner (and the benefits shall inure to the Board and any past, present or prospective tenant of the Project) and its respective successors and assigns during the term
of this Agreement. The Owner hereby agrees that any and all requirements of the laws of the State of
Montana to be satisfied in order for the provisions of this Agreement to constitute deed restrictions and covenants running with the Project are and shall be deemed to be satisfied in full, or, in the alternate, that
an equitable servitude has been created to insure that these restrictions run with the land. For the longer
of the period the Credit is claimed or the term of this Agreement, each and every contract, deed or other
instrument hereafter executed conveying or providing for the conveyance of the Project or any portion
thereof shall expressly provide that such conveyance is subject to this Agreement; provided, however, the
covenants and restrictions contained herein shall survive and be effective regardless of whether such
contract, deed or other instrument hereafter executed conveying or providing for the conveyance of the
Project or any portion thereof provides that such conveyance is subject to this Agreement.
(c) The Owner covenants to obtain a written agreement of any prior recorded lienholder on
the Project Land or the Project, subordinating such lien to this Agreement, and the obtaining and
submission to the Board of such written subordination agreement shall be a condition precedent to the
issuance of Internal Revenue Service Form 8609(s) constituting the final allocation of the Credit to the
Project.
Section 3. Representations and Warranties of the Owner. The Owner hereby represents and
warrants as follows:
(a) The Owner: (i) is a Limited Partnership duly organized under the laws of the
State of [Montana]; (ii) is authorized to transact business in the State of Montana; (iii) has the power and
authority to own its properties and assets and to carry on its business as now being conducted and as
represented in its Application; and (iv) has the full legal right, power and authority to execute and deliver this Agreement.
(b) The execution, recording and performance of this Agreement by the Owner: (i) has been duly authorized by all necessary action; (ii) does not violate any provision of law, rule or regulation or any
order of any court or other agency or governmental body applicable to Owner, or Owner’s properties, assets
or liabilities; (iii) does not conflict with, violate or constitute a default under any provision of any indenture,
agreement, mortgage, mortgage note or other instrument to which the Owner is a party or by which it or
the Project is bound; and (iv) will not result in the creation or imposition of any prohibited encumbrance of
any nature.
(c) The Owner will, at the time of execution and delivery of this Agreement to the Board, have
(i) good and marketable title to the premises constituting the Project free and clear of any liens or
encumbrances (subject to encumbrances created pursuant to this Agreement or other permitted
encumbrances), or (ii) a lease of the Project Land effective for a period at least as long as the Owner’s Commitment Period specified in subsection 5(a) hereof.
(d) There is no action, suit, investigation or proceeding at law or in equity or by or before any
court, governmental instrumentality or other agency now pending or, to the knowledge of the Owner,
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threatened against or affecting it or any of its properties or rights which, if adversely determined, would
materially impair its right to carry on business substantially as now conducted, as represented in its
Application or as now contemplated by this Agreement, or that would materially adversely affect its
financial condition.
(e) The Project constitutes or upon placement in service will constitute a qualified low-income project as defined in Section 42 of the Code and applicable Regulations.
(f) Each unit in the Project contains or upon placement in service will contain complete
facilities for living, sleeping, eating, cooking and sanitation (unless the Project qualifies as a single-room
occupancy project or transitional housing for the homeless) which are to be used on other than a transient
basis.
(g) Each Low-Income Unit is or upon placement in service will be suitable for occupancy in accordance with Section 42(i)(3)(B)(ii) of the Code and applicable local health, safety and building codes.
Section 4. Owner’s Covenants and Agreements.
A. Occupancy Requirements. Owner covenants and agrees throughout the term of this Agreement
that:
(i) 20-50/40-60 Test. Either:
(1) at least 20% or more of the residential units in the Project are both rent-restricted and
occupied by individuals whose income is 50% or less of area median income; or
(2) at least 40% or more of the residential units in the Project are both rent-restricted and
occupied by individuals whose income is 60% or less of area median income.
(Check either (1) or (2) to indicate Owner’s applicable minimum set aside election)
(ii) Low-Income Occupancy Percentage; Income Restrictions. The Owner shall lease the Low-
Income Occupancy Percentage of the Low-Income Units in the Project to Low-Income Tenants who meet
the Income Restrictions and to Low-Income Tenants meeting the Income Restrictions, as determined in
accordance with the Section 42 of the Code.
(iii) Targeting Requirements. The Owner shall target Low-Income Occupancy Percentage of the
Low-Income Units to tenants who meet the Targeting Requirements as set forth in Exhibit A-2, attached
hereto and incorporated herein by reference.
(iv) Rent Restrictions. The Owner shall not charge Low-Income Tenants lease or rent payments
exceeding the Rent Restrictions set forth in Exhibit A-2, attached hereto and incorporated herein by reference.
(v) Changes in Targeting Requirements or Rent Restrictions. The Targeting Requirements or
Rent Restrictions of the Low-Income Units may only be changed if the Board, in its sole discretion,
determines that maintaining such Targeting Requirements or Rent Restrictions would cause undue
hardship for the Project and approves such changes in writing.
(vi) Eviction; Rent Increases. The Owner shall not (i) evict or terminate the tenancy of an existing tenant of any Low-Income Unit other than for good cause, or (ii) impose any increase in the gross rent with
respect to any Low-Income Unit not otherwise permitted under Section 42 of the Code.
(vii) General Public Tenants. All Low-Income Units shall be leased and rented or made available
to members of the general public who qualify as Low-Income Tenants (or otherwise qualify for occupancy
of the Low-Income Units) under the applicable election specified in subsection 4.A hereof.
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(viii) Fair Housing Act. The Owner agrees to comply fully with the requirements of the Fair
Housing Act as it may from time to time be amended.
(ix) Suitability for Occupancy. Each Low-Income Unit is and will remain suitable for occupancy
in accordance with Section 42(i)(3)(B)(ii) of the Code and applicable local health, safety and building codes.
(x) Section 8 Tenants. The Owner shall not refuse to lease any Low-Income Unit to a holder of a
voucher or certificate of eligibility under Section 8 of the United States Housing Act of 1937 because of the
status of the prospective tenant as such a holder.
B. Transfer Restrictions. Owner covenants and agrees throughout the term of this Agreement
that:
(i) Sale, Transfer or Exchange Subject to Covenants. Subject to the requirements of Section 42 of the Code, applicable Board requirements and this Agreement, the Owner may sell, transfer or exchange the
entire Project at any time, but the Owner shall notify the Board in writing and obtain the written agreement
of any buyer, transferee, successor or other person acquiring the Project or any interest therein that such acquisition is subject to the requirements of this Agreement and to the requirements of Section 42 of the
Code and applicable Regulations, including Owner training and certification requirements. This provision
shall not act to waive any other restrictions on the sale, transfer or exchange of the Project or any
low-income portion of the Project. The Owner agrees that the Board may void any sale, transfer or exchange
of the Project if the buyer, transferee, successor or other person acquiring the Project or any interest therein
fails to assume in writing the requirements of this Agreement and the requirements of Section 42 of the
Code. Notwithstanding the provisions of this subsection, no portion of a building to which this Agreement
applies may be sold to any person unless all of such building is sold to such person.
(ii) Notification of Transfer. The Owner shall notify the Board in writing of any sale, transfer or
exchange of the entire Project and shall provide the Board with the written agreement, in the form
prescribed by the Board, of the buyer, transferee, successor or other person to assume the requirements of
this Agreement and the requirements of Section 42 of the Code, including Owner training and certification
requirements.
(iii) No Demolition or Change in Use. The Owner shall not demolish any part of the Project or
substantially subtract from any real or personal property of the Project or permit the use of any residential
rental unit for any purpose other than rental housing in compliance with the covenants and restrictions
contained herein during the term of this Agreement unless otherwise required by law.
(iv) Project Restoration. If the Project, or any part thereof, shall be damaged or destroyed or shall
be condemned or acquired for public use, the Owner shall use its best efforts to repair and restore the Project to substantially the same condition as existed prior to the event causing such damage or destruction,
or to relieve the condemnation, and thereafter to operate the Project in accordance with the terms of this
Agreement.
C. Energy and Green Building Requirements.
(i) Conditions of Credit Allocation. The Owner shall comply with the Energy and Green Building
Requirements specified in Exhibit A-3, attached hereto and incorporated herein by this reference.
D. Compliance Requirements. Owner covenants and agrees throughout the term of this
Agreement that:
(i) Compliance with Applicable Requirements. The Owner shall be subject to and comply with all
applicable requirements, including without limitation operating and replacement reserves, record-keeping,
reporting, training, certification, audit, inspection and other compliance and enforcement requirements
and payment of related fees to the Board, as set forth in the Compliance Provisions.
Annual Compliance Certification. The Owner shall prepare and submit to the Board a certification
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of Section 42 program compliance in the form prescribed by the Board annually on or before the 25th of
the month following the assigned annual period.
(ii) Tenant Income Certification; Owner’s Compliance Certificate. The Owner shall, unless waived
by the [Board], annually obtain and maintain on file from each Low-Income Tenant residing in the Project
an updated copy of each tenant's executed Tenant Income Certification and Owner’s Certificate of Continuing Compliance in the form prescribed by the Board. The Owner must submit a copy of each
tenant's Tenant Income Certification to the Board. The determination of whether a tenant meets the
low-income requirements under Section 42 of Code, shall be made by the Owner at least annually on the
basis of the current income of such Low-Income Tenant.
(iii) Additional Records. The Owner shall retain the following information for each year for each
building in the Project for at least six years after the due date for filing the federal income tax return for
such year, and with respect to the first year of the 10-year credit period, for at least 6 years beyond the due
date for filing the federal income tax return for the last year of the 15- year compliance period for the
building: (a) the total number of residential rental units in a building (including the number of bedrooms
and the size in square feet of each residential rental unit); (b) the percentage of residential rental units in the building that are Low-Income Units; (c) the rent charged on each residential rental unit in the building
(including any utility allowances and mandatory fees); (d) Low-Income Unit vacancies in the building and
information showing when, and to whom, the next available units were rented; (e) the annual Tenant Income Certification of each Low-Income Tenant by unit, including annual certifications for each
continuous Low-Income Tenant; (f) documentation to support each Low-Income Tenant's income
certification, including a copy of verification of income from third parties or 6 consecutive pay stubs; (g) the
eligible basis and qualified basis of the building at the end of the first year of the credit period; and (h) the
character and use of any nonresidential portion of the building included in the eligible basis of each
building.
(iv) Additional Compliance Monitoring. If at any point following the execution of this Agreement,
Section 42 of the Code or Regulations implementing said Section require the Board to undertake additional
monitoring of the Owner’s or Project’s compliance with the Occupancy Restrictions or, alternatively, if the
Board chooses to undertake additional monitoring of the Owner’s or Project’s compliance with the Occupancy Restrictions, the Owner shall take any and all actions reasonably necessary and required by the
Board to substantiate the Owner's compliance with the Occupancy Restrictions and will pay a reasonable
fee to the Board for such monitoring activities performed by the Board.
(v) Inspection. At least once every three (3) years, or more frequently if determined necessary by
the Board, in its sole discretion, the Owner shall permit, during normal business hours and upon minimal
advance notice, any duly authorized representative of the Board to inspect any building in the Project and
to inspect any books and records of the Owner regarding the Project with respect to the incomes of Low-Income Tenants and rents charged to Low-Income Tenants (including utility allowances and
mandatory fees) which pertain to compliance with the Occupancy Restrictions.
(vi) Additional Compliance Substantiation. The Owner shall submit any other information,
documents or certifications requested by the Board which the Board deems reasonably necessary to
substantiate the Owner's continuing compliance with the Covenants and this Agreement.
(vii) Compliance with Covenants. The Owner shall comply with and shall not knowingly take or
permit any action or omission that would result in a violation of the requirements of Section 42 of the Code
and applicable Regulations, the Board’s rules, guidelines or applicable QAP, or of this Agreement. For
purposes of this Agreement, the “applicable QAP” means: (a) for purposes of any substantive issues relating to an allocation of Credits, or to the Development Evaluation Criteria, Scoring, Selection Criteria or
Selection Standard for such allocation, the particular year’s QAP under which the Application was
submitted, evaluated and allocated Credits; or (b) for purposes of Project changes, Reservation (Initial
Allocation), Carryover Commitment, 10% Cost Certification, Final Allocation, compliance requirements,
compliance audits, and any post-Award procedures, the QAP most recently adopted.
(viii) Reliance Upon Representations. The Owner’s representations and covenants set forth herein
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may be relied upon by the Board and all persons interested in the Project’s compliance under Section 42 of
the Code and the applicable Regulations.
E. Enforcement Provisions. Owner covenants and agrees throughout the term of this
Agreement that:
(i) Actions to Comply with Covenants. Owner shall take any lawful action (including amendment
of this Agreement, as may be necessary in the opinion of the Board) to comply fully with (a) the Code and
with all applicable rules, rulings, policies, procedures, regulations or other official statements promulgated
or proposed from time to time by the United States Department of the Treasury, the Internal Revenue
Service, the Department of Housing and Urban Development or any other authorized governmental agency
or instrumentality pertaining to the Owner's obligations under Section 42 of the Code and affecting the
Project; (b) this Agreement and the Covenants contained herein; or (c) the Board’s rules, guidelines or
applicable QAP.
(ii) Action for Specific Performance Authorized. In consideration for receiving an allocation of
Credits for the Project and for purposes of assuring compliance of the Project and the Owner with this Agreement, Section 42 of the Code and the applicable Regulations, and the Board’s rules, guidelines and
applicable QAP, the Owner hereby acknowledges and agrees that (a) the beneficiaries of the Owner's
obligations hereunder cannot be adequately compensated by monetary damages in the event of any default
hereunder, and (b) the Board or any individual who meets the income limitation applicable under this
Agreement or Section 42 (whether a prospective, present or former occupant) shall be entitled, for any
breach of the provisions hereof, and in addition to all other remedies provided by law or in equity, to enforce
specific performance by the Owner of its obligations under this Agreement in a Montana state court of
competent jurisdiction.
Section 5. Term of Agreement.
(a) Except as hereinafter provided, this Agreement and the Covenants and Restrictions specified
herein shall commence with and apply beginning on the first day on which any building which is part of the
Project is placed in service and shall terminate on the end of the Owner’s Commitment Period. The Owner has committed to maintaining and shall maintain the Project as Low-Income Housing subject to the terms
of this Agreement for and throughout the entire Commitment Period. For purposes of this Agreement,
“Commitment Period” or “Owner’s Commitment Period” means the period that includes the initial 15-year
compliance period and an additional period of 31 years beyond the initial 15-year compliance period.
(b) Except as specifically otherwise provided in subsection 5(c), this Agreement and the Covenants
and Restrictions specified herein shall remain binding and effective and the Owner shall comply therewith
for and during the entire Commitment Period specified above. By execution and recording of this Agreement, the Owner: (i) waives and forfeits the right to request that the Board locate a qualified buyer
pursuant to the Qualified Contract Process; (ii) agrees to maintain the Low-Income Units through the entire
Commitment Period; and (iii) agrees that the Commitment Period may not be terminated early through the Qualified Contract Process.
(c) The Occupancy Restrictions, Transfer Restrictions, Compliance Requirements and
Enforcement Provisions specified herein, other than the Tenant Protections specified in subsection 5(d),
shall terminate with respect to the Project or any Project building on the date the Project or any respective
Project building is acquired by foreclosure or instrument in lieu of foreclosure (unless the Secretary of the
Treasury determines that such acquisition is part of an arrangement to terminate the Occupancy
Restrictions.
(d) In the event of termination as provided by subsection 5(c) above, the Tenant Protections
specified in this subsection 5(d) shall remain binding and effective for a period of three years (the “Tenant
Protection Period”) following such termination. During the Tenant Protection Period, the Owner shall not
(i) evict or terminate the tenancy of an existing tenant of any Low-Income Unit other than for good cause,
or (ii) impose any increase in the gross rent with respect to any Low-Income Unit not otherwise permitted
under Section 42 of the Code (the “Tenant Protections”). The Tenant Protections that apply during the
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Tenant Protection Period also include the Compliance Requirements and Enforcement Provisions provided
hereunder with respect to compliance with and enforcement of the requirements of clauses (i) and (ii) of
this subsection 5(d).
Section 6. Miscellaneous.
(a) Severability. The invalidity of any clause, part or provision of this Agreement shall not
affect the validity of the remaining portions thereof.
(b) Notices. All notices to be given pursuant to this Agreement shall be in writing and shall be
deemed given when mailed by certified or registered mail, return receipt requested, to the parties hereto at
the addresses set forth below, or to such other address(es) as a party may from time to time designate in
writing.
To the Board: Montana Board of Housing
P. O. Box 200528
Helena, MT 59620-0528 Attn: LIHTC Program
To the Owner: Timber Ridge Apartments LP 283 W Front Street Suite 1
Missoula MT 59802
The Board and the Owner may, by written notice given hereunder, designate any further or different
address(es) to which subsequent notices, certificates or other communications shall be sent.
(c) Amendment. The Owner agrees that it will take all actions necessary to effect an
amendment of this Agreement as may be necessary to comply with the Code and any and all applicable
rules, regulations, policies, procedures, rulings or other official statements pertaining to the Credit.
(d) Release and Indemnification. The Owner hereby agrees to pay, indemnify and hold the Board harmless from any and all claims, losses, demands, suits, judgments, costs, expenses and fees,
including all reasonable attorneys' fees which may be incurred by the Board, arising from or relating to this
Agreement, allocation of the Credit or recapture of the Credit. The Owner agrees to release the Board from
and to indemnify the Board for any claim, loss, demand or judgment as a result of the allocation of Credits
to the Project or the recapture of the Credits by the Internal Revenue Service.
(e) Attorney Fees. The Owner hereby agrees to pay the Board’s reasonable attorneys’ fees and
costs incurred in enforcing this Agreement, whether the same shall be enforced by suit or otherwise. The
Owner also hereby agrees to pay the Board’s costs, fees and expenses, including all reasonable fees and
expenses of the Board's counsel, which may be incurred in connection with any amendment to this
Agreement, whether such amendment is at the request of the Owner or the Board.
(f) Priority, Subordination or Termination of Agreement. This Agreement shall apply
according to its terms and shall have priority over any subsequently recorded or any subordinated mortgage
or other instrument, except as otherwise provided in any subordination agreement executed by the Board.
In the event of termination as provided in subsection 5(c), the Restrictions and Covenants hereunder, other
than the Tenant Protections specified in subsection 5(d), shall terminate, but the Tenant Protections shall
thereafter remain valid and effective during the Tenant Protection Period specified in subsection 5(d) and
or Code Section 42(h)(6)(E).
(g) Governing Law. This Agreement shall be governed by the laws of the State of Montana and,
where applicable, the laws of the United States of America.
(h) Survival of Obligations. The obligations of the Owner as set forth herein and in the
Application shall survive the allocation of the Credit and shall not be deemed to terminate or merge with
the awarding or the allocation of Credits.
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(i) Agreement Controlling. The Owner shall not execute any other agreement with provisions
contradictory to, or in opposition to, the provisions of this Agreement, and, in any event, the requirements
of this Agreement are paramount and controlling as to the rights and obligations herein set forth and
supersede any other requirements in conflict herewith.
[Signature Page Follows:]
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IN WITNESS WHEREOF, the Owner has caused this Agreement to be signed by its duly authorized
representative, as of the day and year first written above.
OWNER
______________________________________
Name: ________________________________
Title: __________________________________
STATE OF )
) ss.
COUNTY OF )
On this day of , 20 , before me a notary public for the state of
________________________, personally appeared , the
______________________ for ______________________, the entity which is subscribed to the within instrument, and acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument, the entity upon behalf of which he/she acted executed the
instrument.
In witness whereof, I have hereunto set my hand and affixed my notarial seal on the day and year
first-above written.
________________________________
Notary Public for the State of _________
(Notarial Seal/Stamp Above)
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Exhibit A-1
(Legal Description of Project Land)
Lot 5A in Block 8 of Amended Plat of Lot 5, Block 8 of West Winds Major Subdivision Phase 2A & 2B,
City of Bozeman, Gallatin County, Montana, according to the official plat thereof on file and of record
in the office of the County Clerk and Recorder of Gallatin County, Montana. Exhibit A-2
(Conditions of Credit Allocation)
Low-Income Occupancy Percentage
100 Percent of the units rented to qualified Low-Income Tenants
Income Restrictions
Individuals or families whose income is 60% or less of the Area Median Income (including
adjustments for family size)
Targeting Requirements
3 Of the units will be income targeted to 49% or less of Area Median Income Tenants
Of the units will be income targeted to 50% or less of Area Median Income Tenants
23 Of the units will be income targeted to 55% or less of Area Median Income Tenants
4 Of the units will be income targeted to 60% or less of Area Median Income Tenants
Rent Restrictions
3 Of the units will have rents based on 40% of Area Median Income
23 Of the units will have rents based on 50% of Area Median Income
4 Of the units will have rents based on 60% of Area Median Income
Owner’s Commitment Period
_46 years
Any major changes to the original Application must be approved in writing by the Board as provided in
the applicable QAP.
EXHIBIT A-4 Amenities
This Project must have the following amenities:
Air Conditioning
Dishwasher
Disposal
Extra Storage outside of unit
Microwave
Patios or Balcones Washer/Dryer hookups and in unit
Community Room
Outdoor community area
MBOH-REV DRC-6/2016 Page 12
4823-6124-0966.2
EXHIBIT A-3
(Energy and Green Building Requirements)
See attached Architects letter and Green Initiatives Form