93566.1-CA Mixed-Finance Capital Advance Program Agreement & Certif

OMB Approval No. 2502-0470
(Exp. 08/31/2013)

Capital Advance Mixed-Finance
Program

U.S. Department of Housing and Urban Development
Office of Housing
Federal Housing Commissioner

Mixed-Finance Capital Advance Program
Agreement & Certification For Section 202 of the Housing
Act of 1959 or Section 811 of the National Affordable
Housing Act
(For use in Capital Advance Upon Completion Cases)
(Must be executed before executing the construction contract.)

This Agreement made this ____day of____________, 20___,
by and between(hereinafter called Owner), and the Secretary
of Housing and Urban Development (hereinafter called HUD).
Whereas, Owner has applied to HUD for a capital advance in
the amount of $____________ for the purpose of
constructing, rehabilitating or purchasing with or without
rehabilitation a housing project to be located at
and identified as Project No. ____________ pursuant to
Section 202 of the Housing Act of 1959 or Section 811 of
the National Affordable Housing Act. The project will
contain ____ Capital Advance-assisted units and ____ nonCapital Advance-assisted units.
Whereas, HUD has issued a commitment to disburse capital
advance funds upon completion of the project in an amount
not to exceed $____________, which amount, however, is
subject to reduction as provided in the Regulations
promulgated pursuant thereto limit the amount of capital
advance to the development cost of the Capital Advanceassisted units within the project.
Now Therefore this Agreement Witnesseth:
(1) That in consideration
of the agreement by HUD to
make said capital advance,
the Owner agrees to submit
to HUD prior to
disbursement of the capital
advance its Certificate of
Actual Cost, and, if
required, the Contractor's
Certificate of Actual Cost,

on forms prescribed by HUD,
and/or Contractor's
Subcontractor's and Owner's
Certifications. Owner
agrees that all
Certificates of Actual Cost
shall be certified to by an
independent Certified
Public Accountant or an
independent Public

Form HUD-93566.1-CA (9/2007)
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OMB Approval No. 2502-0470
(exp. 8/31/2013)
Accountant in form
acceptable to HUD. The
Owner further agrees that
if HUD, for cost
certification purposes
accepts estimates of cost
for any items the Owner
will, upon determination of
actual cost, submit in a
form satisfactory to HUD a
certification of such
actual costs which shall be
reduced by the net amount
(total receipts less
expenses of perfecting
claims) of settlement of
claims against bonding
companies or others, and if
the substitution of such
certified actual costs for
the estimates of cost which
were used at final
disbursement would have
required a reduction of the
mortgage, the reduction so
required shall be made
provided that the entire
amount, or any part thereof
may, with the consent of
HUD, be deposited in the
Reserve Fund for
Replacements.
(2) Owner and HUD agree
that, prior to
disbursement, the mortgage
note will comply with the
provisions of Section 202
of the Housing Act of l959
or Section 811 of the
National Affordable Housing
Act and the applicable
regulations.
(3) Owner certifies that no
financial interests or
family relationships exist

between Owner or any of its
officers, directors, or
stockholders with the
Architect or with the
General Contractor,
subcontractors, suppliers,
or equipment lessors.
(4) Owner agrees to notify
HUD, in writing prior to
disbursement, of any change
in relationship subsequent
to the execution of this
Agreement which results in
an identity of interest of
the Owner with the General
Contractor, or any
subcontractor, supplier, or
equipment lessor, in which
case the Owner's
certification of actual
cost will be accompanied by
the Contractor's
certification of actual
cost in form prescribed by
HUD and, if required by
HUD, certification of
actual cost by such
subcontractor, supplier, or
equipment lessor. It is
agreed that the absence of
such notice may be treated
by HUD as a representation
that no change in
relationship has occurred
which creates any identity
of interest.
(5) Owner agrees to
maintain and keep adequate
records of all costs
referred to in (1) above,
and to make such records
available for examination
by HUD upon request.

Form HUD-93566.1-CA (9/2007)
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OMB Approval No. 2502-0470
(exp. 8/31/2013)
(6)Owner agrees to include
in the construction
contract a requirement that
the Contractor shall
maintain adequate records
of all actual costs of
labor and materials and
necessary services, and
make such records,
documents, contracts and
accounts available for
review upon request by HUD.
(7) Owner agrees that it
will require in the general
contract and in all
agreements with
subcontractors a provision
that if there is or comes
into being any identity of
interest between the
General Contractor and any
Subcontractor, then (a)
such Subcontractor will
agree to submit to HUD
(unless specifically waived
by HUD) a certificate of
the actual cost of
providing the material
and/or services after
deduction of all kickbacks,
rebates, adjustments,
discounts, or any other
arrangements in the nature
thereof, and (b) such
Subcontractor will join in
the execution and
submission of the HUD form
for Contractor's,
Subcontractor's and Owner's
Certifications. The
Subcontractors'
certificates of actual cost
will be supported by the
certifications of an
independent Certified
Public Accountant or an

independent Public
Accountant in form
acceptable to HUD. For
purposes of determining
actual cost, no profit or
general overhead may be
included in the subcontract
unless HUD has in advance
approved in writing of the
subcontract and has
approved a specific dollar
amount or a specific
percentage for profit
and/or general overhead.
(8) Owner agrees that if
there comes into being any
identity of interest
between the General
Contractor and Architect,
the Architect will be
relieved immediately of
inspection duties and the
maximum Architect's fees
allowable for cost
certification purposes will
be $
for design
services only. No fee will
be allowed to the identity
of interest Architect for
supervision.
(9) Owner agrees that the
construction contract will
be on a lump-sum fee basis
or on a cost-plus fee basis
with a maximum upset price
and that for the purpose of
determining the actual cost
of the physical
improvements on the
mortgaged property, the
allowance for the
Contractor's fee shall not
exceed $____________ and
the general overhead
expense shall not exceed

Form HUD-93566.1-CA (9/2007)
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OMB Approval No. 2502-0470
(exp. 8/31/2013)
$____________, provided,
however, that in the event
more than 50 percent of the
actual cost of construction
is subcontracted with any
one contractor or
subcontractor, or more than
75 percent with three (3)
or less contractors or
subcontractors, the
Contractor's fee provided
for herein shall not be
allowed as an actual cost.
For the purpose of this
paragraph, it is further
agreed that (a) the terms
contractors or
subcontractors include
material suppliers and
equipment lessors, and (b)
any two or more contractors
or subcontractors having an
identity of interest or
common ownership shall be
considered as one
contractor or
subcontractor.

(10) The Owner agrees to
submit with this form
signed duplicate copies of
any collateral agreement(s)
and/or side deal
agreement(s) executed by
the Owner or any principals
of the Owner evidencing any
secured or unsecured
borrowing made in
association with the
construction of the
project. The Owner further
agrees to obtain the
approval of HUD before
entering into any such
agreement after executing
this form.
(11) The foregoing
agreements and
certifications by the Owner
are made and delivered for
the purpose of influencing
an official action of HUD
and are to be relied upon
as true and correct.

In Witness Whereof, the parties hereto have duly executed
this instrument the year first above written.
Attest:
(Owner)

By:

______________________________
(General Contractor)

By:

______________________________
Secretary of Housing and Urban
Development by and Through the
Federal Housing Commissioner

By (Authorized Agent)

_________________________
Form HUD-93566.1-CA (9/2007)
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OMB Approval No. 2502-0470
(exp. 8/31/2013)
Public reporting burden for this collection of information
is estimated to average 30 minutes per response, including
the time for reviewing instructions, searching existing
data sources, gathering and maintaining the data needed,
and completing and reviewing the collection of information.
HUD may not collect this information, and you are not
required to complete this form, unless it displays a
currently valid OMB control number.

Form HUD-93566.1-CA (9/2007)
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