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Memorandum of Understanding 1

MEMORANDUM OF UNDERSTANDING

THIS MEMORANDUM OF UNDERSTANDING (the “MOU”) is made this _____ day

of ______________, 20___ (the “Effective Date”), by and between the NEW HAMPSHIRE

HOUSING FINANCE AUTHORITY, a body corporate and politic, with a principal place of

business at 32 Constitution Drive, Bedford, New Hampshire 03110 (“NHHFA”), THE NEW

HAMPSHIRE DEPARTMENT OF HEALTH AND HUMAN SERVICES, with a principal

place of business at 105 Pleasant Street, Concord, New Hampshire 03301 (“DHHS”) and

____________________, a ___________________ with a principal place of business at

______________________________(“Developer”).

W I T N E S S E T H

WHEREAS, NHHFA is a state credit agency responsible for the award of Low Income

Housing Tax Credits pursuant to Section 42 of the Internal Revenue Code in the State of New

Hampshire;

WHEREAS, DHHS seeks to promote respect, recovery, and full community inclusion for

adults, including older adults, who experience a serious mental illness;

CHOOSE ONE-CHOOSE FIRST OPTION IF DEVELOPER IS GOING TO PLEDGE

EXISTING UNITS AND NEW UNITS, OR JUST EXISTING UNITS; CHOOSE SECOND

OPTION IF DEVELOPER IS GOING TO PLEDGE JUST NEW UNITS.

□ WHEREAS, the Developer is in the process of applying to NHHFA for low income

housing tax credits to develop a ____ unit, low income, residential, apartment complex located in

__________________, New Hampshire (the “Project”), but in addition also is the owner of

other, numerous low income, residential apartment units in New Hampshire;

[OR]

□ WHEREAS, Developer is in the process of applying to NHHFA for low income

housing tax credits to develop a ____ unit, low income, residential, apartment complex, located

in ________________, New Hampshire (the “Project”).

WHEREAS, NHHFA, DHHS and the Developer recognize that access to safe and

affordable housing is a significant challenge for individuals with a serious mental illness;

Memorandum of Understanding 2

WHEREAS, NHHFA and DHHS entered into an Inter-Agency Partnership Agreement

dated May 5, 2014 (the “Partnership Agreement”), a copy of which is available upon request,

whereby NHHFA and DHHS established the 811 PRA Program (the “the Program”) for persons

with a serious mental disabilities who are transitioning from institutional settings into

community based living;

WHEREAS, pursuant to Section HFA 109.07 A of the New Hampshire Qualified

Allocation Plan for the Low Income Housing Tax Credit Program (the “QAP”), NHHFA is

willing to award developers points in connection with their current application for Low Income

Housing Tax Credits if they agree to make housing units available, by participation in the

Program, which is for persons with serious mental illness (“SMI”), as said term is used in the

Settlement Agreement in the case of Amanda D., et. al., and others similarly situated vs.

Margaret W. Hassan, Governor et., al., Civ. No. 1:12-cv-53-SM.

CHOOSE ONE-CHOOSE FIRST OPTION IF DEVELOPER IS PLEDGING

EXISTING UNITS AND NEW UNITS; CHOOSE SECOND OPTION IF DEVELOPER IS

PLEDGING ONLY EXISTING UNITS; CHOOSE THIRD OPTION IF DEVELOPER IS

PLEDGING ONLY NEW UNITS

□ WHEREAS, the Developer is willing to make a number of its existing units available

to provide housing for individuals with SMI and is willing to commit at least ten percent (10%)

or up to twenty-fiver percent (25%) of the total units or 2 units, whichever is greater, in the

Project to the Program, which will be available to provide housing for individuals with SMI.

[OR]

□ WHEREAS, the Developer is willing to make a number of its existing units available

to provide housing for individuals with SMI.

[OR]

□ WHEREAS, the Developer is willing to commit at least ten percent (10%) or up to

25% of the total units in the Project or 2 units, whichever is greater, which will be available to

provide housing for individuals with SMI.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of

which is hereby acknowledged, the parties hereto agree as follows:

1. Dedication of Units.

CHOOSE ONE-CHOOSE FIRST OPTION IF DEVELOPER IS PLEDGING EXISTING

UNITS AND NEW UNITS; CHOOSE SECOND OPTION IF DEVELOPER IS PLEDGING

ONLY EXISTING UNITS; CHOOSE THIRD OPTION IF DEVELOPER IS PLEDGING

ONLY NEW UNITS

Memorandum of Understanding 3

□ 1.1 In the event that Developer receives Low Income Housing Tax Credits

from NHHFA for the Project , Developer hereby designates: (i) the number of existing units set

forth on Exhibit A and at the locations/projects set forth on Exhibit A as available to provide

housing for individuals with SMI; and (ii) agrees to designate at least ten percent (10%) or up to

twenty-five percent (25%) of the units or 2 units, whichever is greater, in the Project as available

to provide housing for individuals with SMI ((i) and (ii), collectively the “811 Units”).

[OR]

□ 1.1 In the event that Developer receives Low Income Housing Tax Credits

from NHHFA for the Project, Developer hereby designates the number of existing units set forth

on Exhibit A and at the locations/projects set forth on Exhibit A as available to provide housing

for individuals with SMI (the “811 Units”).

[OR]

□ 1.1 In the event that Developer receives Low Income Housing Tax Credits

from NHHFA for the Project, Developer hereby agrees to designate at least ten percent (10%) or

up to twenty-five percent (25%) of the units or 2 units, whichever is greater, as available to

provide housing for individuals with SMI (the “811 Units).

1.2 The 811 Units must be qualifying units under the Section 811 Program,

therefore, the units must have funding through any of the following: Federal Low-Income

Housing Tax Credits; Federal HOME Funds; other State, Federal or Local funding sources

designated by NHHFA, in its sole discretion, as qualifying for the Section 811PRA Program;

also, the project must include 5 or more units under a single ownership entity, and it must be

non-age restricted.

1.3 In exchange for the Developer dedicating the 811 Units to use for

individuals with SMI, NHHFA will award Developer the points set forth on Exhibit A.

1.4 Designation of the 811 Units shall be subject to final approval by NHHFA

and compliance with applicable laws, rules, agreements and regulations, including, but not

limited to compliance with the Partnership Agreement and the Section 811 Program; said

compliance and designation of units to be in NHHFA’s sole and absolute discretion.

1.5 The Developer shall not be able to re-commit the 811 Units to receive

points for any project other than the Project until this MOU is no longer in effect.

2. Procedure.

2.1 When DHHS receives a referral to place an individual with SMI in community

based housing, DHHS (or its subcontractor(s)) shall conduct an initial screening of the individual

to ascertain whether the individual meets the criteria of the 811 PRA Program.

Memorandum of Understanding 4

2.2 When DHHS determines that it has an individual who is a candidate to take part

in the 811PRA Program, it will ascertain, in conjunction with the individual, the geographic

region or municipality where the individual would prefer to reside.

2.3 If the Developer has a vacant unit in a building with committed 811 units, the

Developer will inform NHHFA of this vacancy and all such vacancies until they have occupied

811 units equaling the total of 811 units committed at the property.

2.4 If the Developer has vacant 811 Units in the geographic area or municipality

which is preferable to the individual, DHHS (or its subcontractor) will send an application from

the individual to the Developer for the vacant unit.

2.5 If an 811 Unit is vacant, DHHS and the Developer will determine if:

.1 renting the unit to the individual would violate the particular project’s Tenant

Selection Plan as previously approved by NHHFA;

.2 the individual satisfies the remainder of the Developer’s tenant screening

criteria, including, income limits, earnings and other previously articulated and NHHFA

approved criteria.

.3 renting to the individual will not cause the project or the 811 Unit to be in non-

compliance with Section 42 of the Internal Revenue Code.

.4 the individual has the resources to pay the rent on the 811 Unit. Said resources

to pay the rent on the 811 Unit may come from a variety of sources, including, but not limited to,

vouchers issued pursuant to the Section 811 Program, or other forms of rental support or the

individual’s earnings.

2.6 If the individual cannot satisfy the criteria set forth in Section 2.5, above, the

Developer will not be required to rent the 811 Unit to the individual.

2.7 If the individual satisfies the criteria set forth in Section 2.4, above, the Developer

will make the 811 Unit available to the individual, who will be required to: (i) execute the

Developer’s lease, previously approved by NHHFA; and (ii) comply with the rules and

regulations for the project in which the 811 Unit is located.

2.8 While residing in the 811 Unit, the individual may avail himself/herself of the

supportive services offered pursuant to the 811 Program, or any other similar program, but

participation in any program shall be voluntary on the part of the individual and shall not be

mandatory as a condition to participation in the Section 811 Program.

2.9 DHHS shall prepare for NHHFA, on an annual basis, a report as to: (i) how many

times the Developer was contacted by DHHS as to the availability of 811 Units; (ii) how many

individuals were placed in Developer’s 811 Units; (iii) the reasons (if any) why individuals with

SMI were not able to be placed in any available 811 Units owned by Developer; and (iv) such

Memorandum of Understanding 5

other information as reasonably requested by NHHFA, so as to allow NHHFA to ascertain

whether the Developer is in compliance with the terms of this MOU.

3. Consents; Certification.

3.1 By executing this MOU the Developer warrants and represents that it has received

any and all consents and approvals necessary for the Developer to enter into this MOU and carry

out the provisions of this MOU, including, but not limited to, any consent required by any of

Developer’s equity investors, general partners, limited partners, members, investment members,

lenders or other financing sources.

3.2 On an annual basis, or more often, if reasonably requested by NHHFA, the

Developer will certify to NHHFA and DHHS, on the form set forth as Exhibit C, hereto, that it is

in compliance with the terms and conditions of this MOU and the rules and regulations of the

811PRA Program.

4. Breach and Remedies for Breach.

4.1 The Developer shall not be in breach of this MOU in the event that it does not

have an 811 Unit available at the time DHHS contacts the Developer and informs them that they

have an individual in need of a unit.

4.2 In the event that the Developer breaches or is in default of any term or condition

of this MOU or knowingly misrepresents the status of the availability of an 811 Unit, the

Developer will be considered to be involved in or have tax credit or authority financed projects

which have non-compliance issues as contemplated by Section 109.07, A, 14 of the QAP,

subjecting the Developer to the loss of up to twenty (20) points on its next application for Low

Income Housing Tax Credits.

4.3 In addition to the rights and remedies set forth in Section 4.2, in the event that

Developer breaches or is in default of any term or condition of the this MOU or knowingly

misrepresents the status of the availability of an 811 Unit, NHHFA and/or DHHS shall have any

and all remedies available to them at law, equity or otherwise.

5. Term.

The term of this MOU shall be five (5) years, commencing on the Effective Date and

terminating on the fifth (5

) anniversary thereof.

6. Rental Assistance Component.

6.1 In addition, a component of the Section 811 Program provides rental assistance

for individuals with SMI. This rental assistance component provides subsidized rental assistance

to the tenant in the form of assistance attached to the unit through a Rental Assistance Contract

(RAC) between the Developer and NHHFA, the administrator of the Program. The Developer

Memorandum of Understanding 6

agrees to participate in the Section 811 PRA Program by entering into a RAC with NHHFA for

the committed units set forth in Exhibit A.

7. Notices.

All notices, reports, consents and receipts shall be in writing and shall be deemed duly

given on (a) the date of personal or overnight courier delivery; (b) the date of transmission by

facsimile or other electronic transmission service, provided a confirmation copy is also sent no

later than the next business day by postage paid, return receipt requested first-class mail; or (c)

three (3) business days after the date of deposit in the United States mail, by postage paid, return

receipt requested first-class mail, addressed as follows:

To NHHFA:

New Hampshire Housing Finance Authority

P.O. Box 5087

Manchester, New Hampshire 03108

Attn: Christine Lavallee

Email Address: clavallee@nhhfa.org

Facsimile: 603-310-9307

To DHHS:

New Hampshire Department of Health and Human Services

Bureau of Mental Health Services

105 Pleasant Street

Concord, New Hampshire 03301

Attn: Jamie Kelly

Email Address: Jamie.Kelly@dhhs.state.nh.us

Facsimile: 603-271-5040

To Developer:

_________________________________

Attn: ____________________________

Email Address:____________________

Facsimile:________________________

8. Miscellaneous.

8.1 This MOU may not be assigned, in whole or in part, by any party hereto.

8.2 This MOU shall be governed by and interpreted pursuant to the laws of the State

of New Hampshire, notwithstanding conflicts of law principles. Any action or proceeding

Memorandum of Understanding 7

arising from this MOU shall be maintained in a State or Federal court located in the State of New

Hampshire and the parties hereto consent to such venue and jurisdiction for all purposes.

8.3 This MOU may be executed in one or more counterparts, each of which shall be

deemed an original, but all of which together shall constitute one and the same instrument.

8.4 Paragraph and section headings are inserted herein for convenience of reference

only and in no way are to be construed to define, limit or affect the construction or interpretation

of the terms of this MOU.

8.5 No amendment, modification or supplement to this MOU shall be binding unless

executed in writing and signed by all the parties thereto.

8.6 All parties hereto, warrant and represent that they have taken any and all

corporate or other action necessary to enter into this MOU, and further warrant and represent that

the persons executing this MOU are duly authorized to execute this MOU and once executed by

said persons shall be valid, binding and enforceable obligations of the party.

8.7 No waiver of any provision of this MOU shall be binding unless set forth

expressly in writing and signed by an authorized representative of the waiving party. The waiver

by any party hereto of a breach of any provision of this MOU shall not operate or be construed as

a waiver of any preceding or succeeding breach of the same or any other term or provision of this

MOU which shall remain in full force and effect.

8.8 In the event that the Developer employs a management agent to provide

management services to any 811 Unit covered by this MOU, the Developer shall provide the

management agent a copy of this MOU and ensure that the management agent will comply with

and is aware of the terms and conditions hereof.

8.9 In the event any provision of this MOU shall be considered illegal or invalid for

any reason, said illegality or invalidity shall not affect the remaining provisions, hereof, but such

provisions shall be fully severable, and this MOU shall be construed and enforced as if such

illegal or invalid provisions had never been inserted therein.

IN WITNESS WHEREOF, the parties hereto have executed this MOU the date and time

first above written.

Memorandum of Understanding 8

NHHFA:

NEW HAMPSHIRE HOUSING

FINANCE AUTHORITY

________________________ By:_________________________________

Witness Name:

Title:

DHHS:

NEW HAMPSHIRE DEPARTMENT OF

HEALTH AND HUMAN SERVICES

________________________ By:_________________________________

Witness Name:

Title:

DEVELOPER:

_________________________________

__________________________ By:_________________________________

Witness Name:

Title:

Memorandum of Understanding 9

EXHIBIT A

811 Units

I. UNITS IN EXISTING PROJECTS/BUILDINGS

Number of Units Committed: _________*

Location of Units:

PROJECT NAME: ADDRESS NUMBER OF

UNITS IN

PROJECT TO

BE 811 UNITS

Number of Points Awarded: _________

* It is the intention of this MOU that the 811 Units shall be floating units and be made available

on a “next unit available” basis. For example if Developer commits three (3), units at a

particular project, and receives a request from DHHS to place an individual with SMI, if the

Developer has a one (1) bedroom unit available they must accept the individual for placement in

the unit (subject to the terms and conditions of this MOU). Once the Developer has three (3)

units occupied by 811 tenants at that particular project, the Developer can refuse to take another

individual 811 tenant under this MOU. Once a unit (or units) at said project is vacated by an 811

tenant, the project will again have a unit (or units) available for placement with an 811 tenant.

Memorandum of Understanding 10

II. UNITS AT NEW PROJECT

Number of New Units Committed: _________

At the Project**

Number of Points Awarded: Five (5)

** Must be at least ten percent (10%) but can be up to twenty-five percent (25%) or 2 units,

whichever is greater, of the total units at the Project.

Memorandum of Understanding 11

EXHIBIT B

Certification of Compliance

The undersigned hereby represents and warrants to NEW HAMPSHIRE HOUSING

FINANCE AUTHORITY (“NHHFA”) and NEW HAMPSHIRE DEPARTMENT OF HEALTH

AND HUMAN SERVICES (“DHHS”) that it is in compliance with the terms and conditions of

that certain Memorandum of Understanding by and between NHHFA, DHHS and the

undersigned, dated ____________________, 20___ (the “MOU”).

The undersigned agrees and understands that if there is any false statement contained

herein or if the undersigned is in default of the terms and conditions set forth in the MOU, that

NHHFA and DHHS shall have any and all rights available to them pursuant to the terms of the

MOU.

IN WITNESS WHEREOF, the undersigned has executed this Certificate of

Compliance as of the ______ day of _______________________, 20____.

_______________________________

_____________________________ By:_______________________________

Witness Name:

Title:

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