N.J. Admin. Code § Tit. 5, ch. 80, subch. 26, app I
FORM OF HAS MUNICIPAL AGREEMENT CONTRACT FOR THE PROVISION OF HOUSING AFFORDABILITY CONTROL SERVICES
THIS AGREEMENT, entered into as of this the ... day of ......., 20..., by and between the STATE OF NEW JERSEY (the "State"), acting by and through its Commissioner of The Department of Community Affairs, who has offices at 101 South Broad Street in the City of Trenton, County of Mercer and State of New Jersey, ("Department"), and ...... a municipality and instrumentality of the State, acting by and through its ......., who has offices at ...... (the "Municipality").
WITNESSETH
WHEREAS, under authorization of the New Jersey Fair Housing Act (N.J.S.A. 52:27D-301, et seq., hereinafter the "Act") the Municipality is implementing a program to provide affordable housing units to low and moderate-income households desiring to live within the Municipality;
WHEREAS, at Title 5, Chapter 80, Subchapter 26 of the New Jersey Administrative Code, the State has promulgated affordability controls in regulations designed to implement the Act, by assuring that low and moderate-income units that are created under the Act are occupied by low and moderate-income households for an appropriate period of time (the "Rules");
WHEREAS, Section 5:80-26.14 of the Rules provides that affordability controls are to be administered by an administrative agent acting on behalf of a municipality, and provides further that a municipality may select the Department's Housing Affordability Service ("HAS") to administer such controls; and
WHEREAS, the Municipality has selected HAS to be the administrative agent for the purposes of providing affordability control services for all affordable housing constructed and to be constructed within the Municipality,
NOW THEREFORE, the State and the Municipality hereby agree to the following terms and conditions:
This Agreement shall become effective as of the ... day of ......., 20..., and shall have a term of three (3) years, terminating at the close of State business on the ... day of ......., 20..., subject to the termination and renewal provisions set forth in Section 5, below.
This Agreement shall define and govern all terms between the parties with respect to affordability controls for affordable housing units provided under the Act, and shall supersede all prior agreements or documents related thereto.
This Agreement shall not apply to units funded under:
| a. | The Federal Low-Income Housing Tax Credit program under Section 42 of |
| the Internal Revenue Code; | |
| b. | The Federal HOME program, 24 C.F.R. § 92.252(e), § 92.254(a)(4); |
| c. | The HUD 202 program, 24 C.F.R. Part 891; |
| d. | The HUD 811 program, 24 C.F.R. Part 890; |
| e. | The HUD HOPE VI program; |
| f. | Federal Home Loan Bank, Affordable Housing Program, 12 C.F.R. Part 60; |
| or | |
| g. | Or any other program excluded under the Rules. |
The State and the Municipality acknowledge that under the Rules the State is acting hereunder primarily as an agent of the Municipality. Anything herein to the contrary notwithstanding, however, the Municipality hereby delegates to the State, and the State hereby accepts, primary responsibility for enforcing substantive provisions of the Act and the Rules.
| a. | The Agreement may be terminated by either party, by giving six (6) |
| months advanced written notice to the other, to the address and in the | |
| form as set forth in Section 15, below, provided however, that no such | |
| termination may take effect unless and until an alternate | |
| administrative agent has been selected by the Municipality and approved | |
| by all required governmental authorities. | |
| b. | Unless terminated, this Agreement shall automatically be renewed for |
| two (2) successive terms of three (3) years each. |
| a. | For the term hereof, and without exception, this Agreement shall govern |
| the provision of affordability control services for all projects | |
| located within the Municipality that fall under the jurisdiction of the | |
| Act. | |
| b. | Individual projects for which affordability control services are to be |
| provided hereunder shall each be evidenced by a contract amendment | |
| ("Project Amendment") that has been executed by the State, by the | |
| Municipality and by the project developer. All such Project Amendments | |
| shall be in the specific form set forth as Exhibit A, hereto. | |
| c. | The annexing of a fully executed original of a Project Amendment to |
| HAS' original of this Agreement shall be a condition precedent to the | |
| provision of any affordability control services to the related project. |
The State shall perform all of the duties and responsibilities of an administrative agent as are set forth in the Rules, including those set forth in Sections 5:80-26.14, 26.16 and 26.18 thereof, as such Rules may from time to time be amended.
The Municipality shall:
| a. | Provide to the State the name, title and telephone number of the |
| municipal official who shall be responsible for liaison with the State | |
| on all matters related to this Agreement; | |
| b. | Use its best efforts to ensure that applicable local ordinances are not |
| in conflict with either the Rules or the provisions of this Agreement; | |
| c. | Ensure that all restricted units are identified as affordable within |
| the tax assessor's office and any municipal utility authority (MUA). | |
| The municipality and MUA shall promptly notify the administrative agent | |
| of a change in billing address, payment delinquency of two billing | |
| cycles, transfer of title, or institution of a writ of foreclosure on | |
| all affordable units. | |
| d. | Provide all reasonable and necessary assistance to the State in support |
| of efforts to enforce provisions of the Act, the Rules, deed covenants, | |
| mortgages court decisions or other authorities governing the | |
| affordability control services to be provided under the Agreement. |
All notices and other written communications between the State and the Municipality shall be to the addresses and personnel specified below:
if to the State:
New Jersey Department of Community Affairs
DHCR--Housing Affordability Service
PO Box 806
Trenton, NJ 08625-0806
if to the Municipality:
...
...
...
Attn: .............
The failure of either party to insist upon strict performance of any provision of this Agreement in any one or more instances shall not constitute a consent to waiver of or excuse for any other different or subsequent breach of the same of other provision, nor as a result shall either part relinquish any rights which it may have under this Agreement. No terms or provisions hereof shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the waiving party.
Exhibit B, the general provisions required to be included in this Agreement by the Office of the Attorney General, ".......", is hereby incorporated into and made a part of this Agreement.
Should a conflict or inconsistency exist between the terms of this Agreement and Exhibits A, and B, incorporated herein by reference, said conflict or inconsistency shall be resolved by giving precedence to the Agreement and Exhibits in the following order:
This written Agreement, together with its Exhibits, constitutes the sole agreement between the parties with respect to the matters covered therein, and no other written or oral communication exists which shall bind the parties with respect thereto, provide however that this Agreement may be modified by written amendments clearly identified as such and signed by both the State and the Municipality.
Should any provision of this Agreement be deemed or held to be invalid, ineffective or unenforceable, under present or future laws, the remainder of the provisions shall remain in full force and effect.
IN WITNESS WHEREOF, the State and the Municipality have executed this Agreement in triplicate as of the date first above written.
| THE STATE OF NEW JERSEY |
| DEPARTMENT OF COMMUNITY AFFAIRS |
| BY: ....................................................... |
| xxxxxxxxxxxxx |
| Title |
| THE MUNICIPALITY OF ....................................... |
| BY: ....................................................... |
| xxxxxxxxxxxxx |
| Title |
ACKNOWLEDGEMENTS
On this the ... day of ......., 20... before me came ......., to me known and known to me to be the ...... of the Department of Community Affairs of the State of New Jersey, who states that (s)he has signed said Agreement on behalf of said State for the purposes stated therein.
| ....................................... |
| NOTARY PUBLIC |
On this the ... day of ......., 20... before me came ...... known and known to me to be ...... of ......., the municipality identified as such in the foregoing Agreement, who states that (s)he is duly authorized to execute said Agreement on behalf of said Municipality, and that (s)he has so executed the foregoing Agreement for the purposes stated therein.
| ....................................... |
| NOTARY PUBLIC |
N.J. Admin. Code Tit. 5, ch. 80, subch. 26, app I
See: 36 New Jersey Register 3655(a), 36 New Jersey Register 5713(a).