If the Section 106 process is supplemented by a Memorandum of Understanding or an executed AP (either a PA project or program), such an agreement will be legally binding on the Agency under Section 110(l) of the NHPA (54 U.S.C§ 306114). Such agreements „govern the company and all its parts.“ As such, they must be drafted with care and clarity so that everyone understands what they are asking for and the Agency is able to fully comply with all the legal obligations it has accepted. PAs are generally divided into two types: „project PAs“ and „program PAs“. There are cases where the completion of the procedure provided for in Article 106 before the final decision concerning a particular entity is not feasible. The regulation allows an organization to pursue a „PA project“ (36 CFR § 800.14 (b) (3)) instead of a memorandum of understanding in certain circumstances. The most common situation where a PA project may be appropriate is when the federal agency cannot fully determine how a particular business may affect historic real estate or the location of a historic property and its importance and character before approving the business. For example, the Agency may be required by law to make a final decision on a business within a time frame that simply does not meet the standard procedure set out in section 106, especially if the company`s potential impact area includes large areas of land or if the company may consist of several activities that could adversely affect historic real estate. If you intend to develop a PA program before meeting with the advisory parties for the first time, the federal agency should do the following: If a construction application is submitted to council, we will review the application to see if the development would have a significant impact on the area and the community. When CHPA participates in the consultation process, it should be the last signatory to sign the agreement. The federal agency must first sign the agreement and obtain the signature of the SHPO/THPO and the invited signatories, who will assume responsibility for the agreement before it is sent to the ACHP for execution. Once the CEAP is signed, the agreement is in effect and the Agency can then distribute it for the signatures of the invited signatories who have no responsibility under the agreement and the corresponding parties.
While CHPA prefers to receive the original document, in some situations it may indicate that an electronically sent PDF or a paper copy sent by mail with the other signatures is sufficient. The Agency should cooperate with the contact person of the NDMP staff with regard to the form and the submission of the signature copy. Once THE ACHP, the Agency and shpo/THPO have signed the agreement, it will be executed. CHPA will retain a copy of the signed agreement for its records. The process of executing APs is the same as the process of executing MOAs. Guest Signatory: In accordance with 36 CFR § 800.6 (c) (2), a Guest Signatory has the authority to modify and terminate the Agreement at the time of signature. The official of the Agency may invite other parties to sign the agreement, e.B. an Indian tribe or NHO that attaches religious and cultural importance to the historic property (outside tribal lands) affected by the obligation, or any party that assumes responsibility under the agreement. The refusal of a invited signatory to sign the agreement shall not prevent the execution of the agreement; However, an agreement may not impose any obligation or liability on a party that has not signed it. If an Indian tribe or NHO is asked to be a guest signatory to an agreement for which the obligation does not take place on tribal lands or interfere with historic property, the THPO or a representative designated by the tribe or the NHO may sign the agreement on behalf of the tribe or NHO. CHPA notes and agrees that some tribes may refuse to sign agreement documents in principle, but may participate in the development of the agreement.
Such decisions are within the rights of Native American tribes, and CHPA recommends that authorities understand and accept these decisions. Take, for example, a situation where land is leased to a long-established institutional tenant with a 999-year lease, with no possibility of termination, and where the obligations to be guaranteed by the agreement are the payment of a contribution in instalments at the beginning and then on the fifth anniversary. If the authority understands the terms of the lease and is happy that the tenant is good for the contribution, it seems of little use to insist that even a reluctant landlord sign up. If the tenant were to assign or sublet, the new resident would be bound as the person who draws the property from the contract tenant. However, if the lease allowed for breaks, there would be a much clearer argument for the planning authority to have the landlord responsible to ensure that future tenants would also be caught. ACHP: When THE CPHA participates in the consultation on the development of the agreement, it also signs the Memorandum of Understanding or the PA as a signatory. When CHPA participates in the consultation, the Executive Director of CHPA is generally the person signing the agreement on behalf of CHPA. In certain situations, the President of the CHPA may sign the agreement for the CHPA. There may be only a limited opportunity to negotiate site-specific issues needed to mitigate the impact of development, such as improvements.
B road. However, planning commitments should only be requested by a local planning authority if they are necessary to make development acceptable from a planning point of view. Where local planning authorities require affordable housing commitments or infrastructure contributions, the guidelines state that local planning authorities must be flexible in their requirements and may take into account information on profitability. Ashfords has extensive experience drafting and negotiating section 106 agreements on behalf of developers, local planning authorities, affordable housing providers, landowners and mortgagees. You must inform us if you are about to start working so that we can then charge the required contribution fee. Once the contribution is received, we will monitor the Commission`s use of that money to ensure that it is being used for the right purposes. Please note that the monitoring fee is payable at the time of signing the legal agreement on the S106. SHPO/THPO: The SHPO/THPO or its agent is usually the person who signs the agreement on behalf of the SHPO office or THPO office. If the relevant obligation of an agreement is made on or affects historic property on tribal lands and no THPO is designated in accordance with Section 101(d)(2) of the NHPA (54 U.S.C. § 302702), a representative designated by the tribe will sign the agreement in addition to the SHPO as a signatory.
Applicants are often asked to become signatories because of the responsibilities assigned to them under the agreement. In some cases, an agency may be able to attach the terms of its assistance or authorization to an applicant in order to force the applicant to take certain steps under a section 106 agreement, even if the applicant refuses to sign the agreement. .