HUD-9640 Housing Assitance Paymennts Full Mark to Market Renewal

Attachment 14

OMB Control #2502-0587
Exp. (09/30/2014)
“Public reporting burden for this collection of information is estimated to average .75 hours. This includes the time for collecting,
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U.S. Department of Housing and Urban Development
Office of Affordable Housing Preservation

Project-based Section 8
HOUSING ASSISTANCE PAYMENTS

INTERIM (FULL) MARK-TO-MARKET
RENEWAL CONTRACT

PREPARATION OF CONTRACT
Reference numbers in this form refer to notes at the end of the contract text.
These endnotes are instructions for preparation of the Mark-To-Market, Interim
Renewal Contract. The instructions are not part of the Renewal Contract

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TABLE OF SECTIONS

1 CONTRACT INFORMATION

1

PROJECT

1

TYPE OF RENEWAL

2

2 TERM AND FUNDING OF RENEWAL CONTRACT

2

3 DEFINITIONS

3

4 RENEWAL CONTRACT

4

a Parties

4

b Statutory authority

4

c Expiring Contract

4

d Purpose of Renewal Contract

4

e Contract units

5

5 EXPIRING CONTRACT – PROVISIONS RENEWED

5

6 CONTRACT RENT

6

a Initial contract rents

6

b Contract rent adjustments

6

7 OWNER WARRANTIES, REPRESENTATIONS AND
AGREEMENTS

6

8 OWNER TERMINATION NOTICE

8

9 HUD REQUIREMENTS

8

10 STATUTORY CHANGES DURING TERM

9

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11 PHA DEFAULT

9

12 EXCLUSION OF THIRD-PARTY RIGHTS

9

13 WRITTEN NOTICES

 11

SIGNATURES

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

Project-based Section 8

HOUSING ASSISTANCE PAYMENTS
INTERIM MARK-TO-MARKET RENEWAL CONTRACT1

1

CONTRACT INFORMATION2

PROJECT
Section 8 Project Number:
Section 8 Project Number of Expiring Contract:
FHA Project Number (if applicable):
Project Name:
Project Description:3

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TYPE OF RENEWAL
Check this box for a project renewed under Section 514(c) of MAHRA.

PARTIES TO RENEWAL CONTRACT
Name of Contract Administrator4

Address of Contract Administrator

Name of Owner5

Address of Owner

2

TERM AND FUNDING OF RENEWAL CONTRACT
a

6
The Renewal Contract begins on
and shall terminate upon
the date that is the earliest of: (i)
months from the date
specified in section 2a (insert number of months not to exceed 12
months); (ii) the last day of the month of closing under the
Restructuring Commitment; (iii) upon a final decision that results in
the discontinuance of the Restructuring process; or (iv) upon
determination that the Owner is in default under the Renewal
Contract and that such event of default is continuing beyond any
notice and cure periods under HUD requirements, if any.

b

Execution of the Renewal Contract by the Contract Administrator is
an obligation by HUD of $
,7 an amount sufficient to provide
8
housing assistance payments for approximately
months of
the Renewal Contract term.

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c

3

HUD will provide additional funding for the remainder of the
Renewal Contract term subject to the availability of sufficient
appropriations. When such appropriations are available, HUD will
obligate additional funding and provide the Owner written
notification of (i) the amount of such additional funding, and (ii) the
approximate period of time within the Renewal Contract term to
which it will be applied.

DEFINITIONS
ACC. Annual contributions contract.
Contract units. The units in the Project that are identified in Exhibit A by
size and applicable contract rents.
Contract rent. The total monthly rent to owner for a contract unit,
including the tenant rent (the portion of rent to owner paid by the assisted
family).
HAP contract. A housing assistance payments contract between the
Contract Administrator and the Owner.
HUD. The United States Department of Housing and Urban Development.
HUD requirements. HUD regulations and other requirements, including
changes in HUD regulations and other requirements during the term of the
Renewal Contract.
MAHRA. The Multifamily Assisted Housing Reform and Affordability Act of
1997 (Title V of Public Law No.105-65, October 27, 1997, 111 Stat. 1384),
as amended.
PHA. Public housing agency (as defined and qualified in accordance with
the United States Housing Act of 1937. 42 U.S.C. 1437 et seq.).
Project. The housing designated in section 1 of the Renewal Contract.
Section 8. Section 8 of the United States Housing Act of 1937 (42 U.S.C.
1437f).
Renewal Contract. This contract, including applicable provisions of the
Expiring Contract (as determined in accordance with section 5 of the
Renewal Contract).

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4

RENEWAL CONTRACT
a

b

Parties
(1)

The Renewal Contract is a housing assistance payments
contract (“HAP Contract”) between the Contract
Administrator and the Owner of the Project (see section 1).

(2)

If HUD is the Contract Administrator, HUD may assign the
Renewal Contract to a public housing agency (“PHA”) for the
purpose of PHA administration of the Renewal Contract, as
Contract Administrator, in accordance with the Renewal
Contract (during the term of the annual contributions contract
(“ACC”) between HUD and the PHA). Notwithstanding such
assignment, HUD shall remain a party to the provisions of
the Renewal Contract that specify HUD’s role pursuant to
the Renewal Contract, including such provisions of section 9
(HUD requirements), section 10 (statutory changes during
term) and section 11 (PHA default), of the Renewal Contract.

Statutory authority
The Renewal Contract is entered pursuant to section 8 of the
United States Housing Act of 1937 (42 U.S.C. 1437f), and section
514(c) of the MAHRA.

c

Expiring Contract
Previously, the Contract Administrator and the Owner had entered
into a HAP Contract ("Expiring Contract") to make Section 8
housing assistance payments to the Owner for eligible families
living in the Project. The term of the Expiring Contract will expire or
terminate by mutual consent of the parties prior to the beginning of
the term of the Renewal Contract. Notwithstanding any provision of
the Expiring Contract regarding the duration of that contract, the
parties agree that the term of the Expiring Contract will be deemed
to terminate prior to the beginning of the term of the Renewal
Contract.

d

Purpose of Renewal Contract
(1)

The purpose of the Renewal Contract is to renew the
Expiring Contract for an additional term sufficient to facilitate
the implementation of a mortgage restructuring and rental
assistance sufficiency plan, as determined by HUD. The
Renewal Contract constitutes a binding commitment for

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purposes of section 579(b) of MAHRA. During the term of
the Renewal Contract, the Contract Administrator shall make
housing assistance payments to the Owner in accordance
with the provisions of the Renewal Contract.
(2)

e

Housing assistance payments shall only be paid to the
Owner for contract units occupied by eligible families leasing
decent, safe and sanitary units from the Owner in
accordance with statutory requirements, and with all HUD
regulations and other requirements. If the Contract
Administrator determines that the Owner has failed to
maintain one or more contract units in decent, safe and
sanitary condition, and has abated housing assistance
payments to the owner for such units, the Contract
Administrator may use amounts otherwise payable to the
Owner pursuant to the Renewal Contract for the purpose of
relocating or rehousing assisted residents in other housing.

Contract units
The Renewal Contract applies to the Contract units.

5

EXPIRING CONTRACT – PROVISIONS RENEWED
a

Except as specifically modified by the Renewal Contract, all
provisions of the Expiring Contract are renewed (to the extent such
provisions are consistent with statutory requirements in effect at the
beginning of the Renewal Contract term).

b

Any and all provisions of the Expiring Contract concerning any of
the following subjects are not renewed, and shall not be applicable
during the renewal term:
(1)

Identification of contract units by size and applicable contract
rents;

(2)

The amount of the monthly contract rents;

(3)

Contract rent adjustments;

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c
6

(4)

Project account (sometimes called “HAP reserve” or “project
reserve”) as previously established and maintained by HUD
pursuant to former Section 8(c)(6) of the United States
Housing Act of 1937 (currently Section 8(c)(5) of the Act, 42
U.S.C. 1437f(c)(5)). Section 8(c)(5) does not apply to the
Renewal Contract, or to payment of housing assistance
payments during the Renewal Contract term; and

(5)

The submission of monthly accounting reports to HUD (if
required by the Expiring Contract).

The Renewal Contract includes those provisions of the Expiring
Contract that are renewed in accordance with this section 5.

CONTRACT RENT
a

Initial contract rents
At the beginning of the Renewal Contract term, the contract rent for
each bedroom size (number of bedrooms) shall be the initial
contract rent amount listed in Exhibit A, which is attached to and, by
this reference, is hereby made a part of the Renewal Contract.

b

Contract rent adjustments
There shall be no contract rent adjustments during the term of the
Renewal Contract.

7

OWNER WARRANTIES, REPRESENTATIONS AND AGREEMENTS
a

The Owner warrants that it has the legal right to execute the
Renewal Contract and to lease dwelling units covered by the
contract.

b

The Owner warrants that the rental units to be leased by the Owner
under the Renewal Contract are in decent, safe and sanitary
condition (as defined and determined in accordance with HUD
regulations and procedures), and shall be maintained in such
condition during the term of the Renewal Contract.

c

The Owner, in full compliance with the requirements of Section
514(b) of MAHRA and Section 401.500 of the Final Rule for the
Multifamily Housing Mortgage and Housing Assistance
Restructuring Program (the “Mark-to-Market Program”) issued on
March 22, 2000 (65 FR 15452), warrants that it has provided, or will
cause to be provided, the requisite written notice of the Owner's

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intention to participate in the Mark-to-Market Program to: (i) the
tenants residing in the Project; (ii) the chief official of the affected
unit of local government having jurisdiction over the Project; and (iii)
the current mortgagee on the Project's Loan(s).
d

The Owner agrees to undertake all reasonable efforts to obtain any
and all consents of third parties (e.g., the current mortgagee on the
Project's Loan(s), the Owner's and, if applicable, the Purchaser's
partners/investors that may be required in order to enable the
Owner and, if applicable, the purchaser to execute a Restructuring
Commitment and perform the related obligations in accordance with
the Mark-to-Market Program’s requirements.

e

Except as identified on Exhibit B, which is attached to and made a
part of this Renewal Contract, the Owner warrants that neither it nor
any of its principals or affiliates is subject to, or received any notice
of, any debarment, suspension or other administrative proceeding
or investigation initiated by HUD, or any other federal or state
government agency, with respect to such party or the Project.

f

Except as identified on Exhibit B, the Owner warrants that neither it
nor any of its principals or affiliates has engaged in any material
adverse actions or omissions with regard to the Project, or with
regard to any other project(s) subject to a HUD-held or HUDinsured loan and/or receiving HUD assistance, which causes, or
may cause, the Owner, and/or such principals or affiliates to be in
default (monetary or technical) under, or in violation of, any HUD
regulatory agreement, Section 8 Housing Assistance Payments
Contract or other applicable HUD requirements.

g

Except as identified on Exhibit B, the Owner warrants that it has not
received any notice from HUD or any other governmental authority
that any unit(s) within the Project fail to comply with HUD's Section
8 Uniform Physical Condition Standards and/or local housing
codes.

h

The Owner agrees to proceed in good faith and in a diligent manner
to enter into a Restructuring Commitment with HUD and to
consummate closing under the Restructuring Commitment on or
before the expiration date of the Renewal Contract. In connection
with such obligation, the Owner agrees to, among other things: (A)
promptly submit to the relevant participating administrative entity
and its contractors and agents (hereinafter, collectively, the “PAE”)
all documents and information that may be requested by or on
behalf of HUD relating to the Owner and/or the Project and to the
extent any such documents or information are not in the Owner's
Interim Mark-To-Market Renewal Contract

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possession or control, the Owner hereby agrees that the Owner will
undertake all reasonable efforts to obtain such documents and
deliver them to the PAE within ten (10) calendar days of request by
HUD; (B) promptly provide the PAE (and its contractors and
agents) with access to the Project; (C) attend such meetings as the
PAE (and its contractors and agents) may deem reasonably
necessary in connection with the Owner's participation in the Markto-Market Program; and (D) undertake all reasonable efforts to
obtain third-party financing if refinancing of the first mortgage is
found necessary under Section CFR 401.460(e).

8

9

i

Upon the request of HUD, the Owner agrees that it shall provide
HUD with evidence satisfactory to HUD relating to each of the
foregoing certifications.

j

The Owner agrees to provide written notice to the Contract
Administrator immediately upon a change in circumstances making
any of the above-stated representations or warranties untrue or
incomplete.

OWNER TERMINATION NOTICE
a

Before termination of the Renewal Contract, the Owner shall
provide written notice to the Contract Administrator and each
assisted family in accordance with HUD requirements.

b

If the Owner fails to provide such notice in accordance with the law
and HUD requirements, the Owner may not increase the tenant
rent payment for any assisted family until such time as the Owner
has provided such notice for the required period.

HUD REQUIREMENTS
The Renewal Contract shall be construed and administered in accordance
with all statutory requirements, and with all HUD regulations and other
requirements, including changes in HUD regulations and other
requirements during the term of the Renewal Contract. However, any
changes in HUD requirements that are inconsistent with the provisions of
the Renewal Contract, including the provisions of section 6 (contract rent),
shall not be applicable.

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10

STATUTORY CHANGES DURING TERM
If any statutory change during the term of the Renewal Contract is
inconsistent with section 6, and if HUD determines, and so notifies the
Contract Administrator and the Owner, that the Contract Administrator is
unable to carry out the provisions of section 6 because of such statutory
change, then the Contract Administrator or the Owner may terminate the
Renewal Contract upon notice to the other party.

11

12

PHA DEFAULT
a

This section 11 of the Renewal Contract applies if the Contract
Administrator is a PHA acting as Contract Administrator pursuant to
an annual contributions contract (“ACC”) between the PHA and
HUD. This includes a case where HUD has assigned the Renewal
Contract to a PHA Contract Administrator, for the purpose of PHA
administration of the Renewal Contract.

b

If HUD determines that the PHA has committed a material and
substantial breach of the PHA’s obligation, as Contract
Administrator, to make housing assistance payments to the Owner
in accordance with the provisions of the Renewal Contract, and that
the Owner is not in default of its obligations under the Renewal
Contract, HUD shall take any action HUD determines necessary for
the continuation of housing assistance payments to the Owner in
accordance with the Renewal Contract.

EXCLUSION OF THIRD-PARTY RIGHTS
a

The Contract Administrator does not assume any responsibility for
injury to, or any liability to, any person injured as a result of the
Owner's action or failure to act in connection with the Contract
Administrator’s implementation of the Renewal Contract, or as a
result of any other action or failure to act by the Owner.

b

The Owner is not the agent of the Contract Administrator or HUD,
and the Renewal Contract does not create or affect any relationship
between the Contract Administrator or HUD and any lender to the
Owner or any suppliers, employees, contractors or subcontractors
used by the Owner in connection with implementation of the
Renewal Contract.

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c

13

If the Contract Administrator is a PHA acting as Contract
Administrator pursuant to an annual contributions contract (“ACC”)
between the PHA and HUD, the Contract Administrator is not the
agent of HUD, and the Renewal Contract does not create any
relationship between HUD and any suppliers, employees,
contractors or subcontractors used by the Contract Administrator to
carry out functions or responsibilities in connection with contract
administration under the ACC.

WRITTEN NOTICES
a

Any notice by the Contract Administrator or the Owner to the other
party pursuant to the Renewal Contract shall be given in writing.

b

A party shall give notice at the other party’s address specified in
section 1 of the Renewal Contract, or at such other address as the
other party has designated by a contract notice. A party gives a
notice to the other party by taking steps reasonably required to
deliver the notice in ordinary course of business. A party receives
notice when the notice is duly delivered at the party’s designated
address.

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SIGNATURES
Contract administrator (HUD or PHA)
Name of Contract Administrator

By:
Signature of authorized representative

Name and official title
Date ___________________________

U.S. Department of Housing and Urban Development
By:
Signature of authorized representative
Name and official title
Date ________________________

Owner
Name of Owner

By:
Signature of authorized representative

Name and title
Date ____________________________
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EXHIBIT A
IDENTIFICATION OF UNITS ("CONTRACT UNITS")
BY SIZE AND APPLICABLE CONTRACT RENTS
Section 8 Contract Number:
FHA Project Number (if applicable):
Effective Date of the Rent Increase (if applicable):

Number
Number
of Contract Units of Bedrooms

Contract
Rent

Utility
Allowance

Gross
Rent

Comments:

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EXHIBIT B1
Any notice of, any debarment, suspension or other administrative proceeding or
investigation initiated by HUD, or any other federal or state government agency,
with respect to such party or the Project:
1.
2.

Any material adverse actions or omissions with regard to the Project:
1.
2.
Violations of section 8 uniform physical condition standards and/or local housing
codes:
1.
2.

1

Owner must provide information prior to execution. Insert the word “None” where applicable –
i.e., where there are no notices, violations, acts or omissions.

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INSTRUCTIONS FOR PREPARATION OF RENEWAL CONTRACT
The following instructions are not part of the Renewal Contract.
Endnote numbers are keyed to references in the text of the Renewal Contract.
1

This form of Renewal Contract shall only be used for Interim Mark-To-Market
renewals of an expiring Section 8 project-based HAP contract in accordance with
HUD requirements, and Sections 514(c) of MAHRA.
Section 2 of the Renewal Contract specifies the contract term.
2

To prepare the Renewal Contract for execution by the parties, fill out all
contract information in section 1 and section 2.
3

Enter a description of the housing that will be covered by the Renewal
Contract. The description must clearly identify the Project by providing the
Project’s name, street address, city, county, state and zip code, block and lot
number (if known), and any other information necessary to clearly designate the
covered Project.
If necessary, attach an exhibit with a site plan, legal description or other
descriptive information. Enter a reference to the attached exhibit.
4

Enter the name of the Contract Administrator that executes the Renewal
Contract. If HUD is the Contract Administrator, enter “United States of America –
Department of Housing and Urban Development (HUD)”. If the Contract
Administrator is a public housing agency (“PHA”), enter the full legal name of the
PHA.
5

Enter the full legal name of the Owner. For example: “ABC Corporation, Inc., a
Maryland corporation.”
6

The Renewal Contract must be entered before expiration of the Expiring
Contract. Enter the date of the first day after expiration of the term of the
Expiring Contract.
7

Enter the amount of funding obligated.

8

Enter a whole number of months.

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form HUD-9640
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OMB Control #2502-0587
Exp. (10/31/2012)
“Public reporting burden for this collection of information is estimated to average 1
hour. This includes the time for collecting, reviewing, and reporting the data. The
information is being collected for obtaining a signature on legally binding documents and
will be used to enforce contractual obligations. Response to this request for
information is required in order to receive the benefits to be derived. This agency may
not collect this information, and you are not required to complete this form unless it
displays a currently valid OMB control number. No confidentiality is assured.”
Privacy Act Notice: The United States Department of Housing and Urban Development,
Federal Housing Administration, is authorized to solicit the information requested in the
form by virtue of Title 12, United States Code, Section 1701 et seq., and regulations
promulgated thereunder at Title 12, Code of Federal Regulations. While no assurance of
confidentiality is pledged to respondents, HUD generally discloses this data only in
response to a Freedom of Information Act request.

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form HUD-9640
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