HAMC HOME INVESTMENT DEVELOPER AGREEMENT.PDF

A DEVELOPER AGREEMENT BETWEEN
MARICOPA COUNTY
ADMINISTERED BY ITS
HUMAN SERVICES DEPARTMENT
AND
THE HOUSING AUTHORITY OF MARICOPA COUNTY
Contract Amount: $450,000
Contract Start Date: December 13, 2017
Funding Completion Date: December 1, 2019
Contract Number: C-22-18-027-3-00/
CFDA Number: 14.239, HOME Investment Partnerships Program
DUNS Number: 124257895
In this HOME Agreement (“Agreement”), the words “we,” “us,” “our,” and “County” refer to the
County of Maricopa, a political subdivision of the State of Arizona, and the words “you,” “your,”
“Developer,” and “HAMC” refer to the Housing Authority of Maricopa County, established
pursuant to Title 36, Chapter 12, Article 1 of the Arizona Revised Statutes. The parties to this
Agreement may collectively be referred to as the “parties” or individually as a “party”.
Recitals
WHEREAS, the County is a recipient of HOME Investment Partnerships Program (“HOME”)
funds from the United States Department of Housing and Urban Development (“HUD”) as a lead
agency for the Maricopa HOME Consortium; and
WHEREAS, the Housing Authority of Maricopa County (“HAMC”) applied to the County for
HOME funds; and
WHEREAS, the County wishes to engage HAMC to assist us in providing affordable housing and
related services to very-low-income and low-income persons located within the Urban County
communities to include in the County of Maricopa, Arizona.
WHEREAS, the Parties are authorized to enter into this Agreement pursuant to A.R.S. §11-952.
Now therefore, in consideration of the reciprocal promises contained in this Agreement, and for
other valuable and good consideration, which the parties acknowledge the receipt and sufficiency
of, the parties agree to the following Terms & Conditions.
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Terms and Conditions
Statement of Work: In accordance with 24 CFR § 92 and this Agreement, you agree to complete,
or cause to be completed, the project described in Exhibit A, Attachment 5: Project Description
and all Attachments to Exhibit A (“Work”), which outline the tasks you will perform,
requirements you or your contractors, consultants and agents will meet, a schedule for completing
the tasks, and the budget you will follow.
1. Project. The Work you are responsible to complete under this Agreement can only be
modified by an Amendment signed by both parties as defined herein. In performing the
Work under this Agreement, you will be required to execute a Promissory Note, secured
by a Deed of Trust, and a Declaration of Covenants, Conditions and Restrictions prior to
distribution of funds. You will hold right, title, and interest in the property that is the site
of the Project.
As described in Exhibit A: Statement of Work and all Attachments to Exhibit A, the
HOME funding you will receive under this Agreement will be used for rehabilitation of
twenty (20) HOME assisted units, within a forty-eight (48) unit duplex housing cluster
located at 9209 Calle Tomi, Guadalupe, AZ 85283, known as the Father Fidelis Kuban
Project. You will perform the Work in accordance with applicable regulations set forth in
24 CFR § 92.
You will furnish all labor, materials, services, supervision, tools, equipment, licenses, and
permits necessary to complete the Work.
2. Work. You shall provide, or arrange for the provision of, all such services as are necessary
for the Project and construction of the Project as more fully described in Exhibit A, but
including without limitation the following services (collectively the "Statement of Work"):
2.1 HAMC shall commit funds to a specific local project in performance of and in
accordance with the terms of this Agreement by June 30, 2018. For the purposes of
this paragraph, “commit” shall have the same meaning as 24 CFR 92.2(2)(i). If
HAMC fails to commit the funds prior to June 30, 2018, funds may no longer be
available and may be reallocated by the County.
2.2 HAMC shall expend HOME funds in performance of and in accordance with the
terms of this Agreement by December 1, 2019. If HAMC fails to expend HOME
funds in performance of and in accordance with the terms of this Agreement, the
funds will no longer be available.
2.3 HAMC shall comply with all underwriting and subsidy layering guidelines,
rehabilitation standards, and affordability requirements.
2.4 HAMC shall complete timely environmental reviews.
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2.5 Management and Ownership Services. HAMC shall complete all management
services including, without limitation, the services listed on Exhibit A,
Attachment 1 (the "Management and Ownership Services").
2.6 Construction Services. HAMC shall complete all construction services listed on
Exhibit A, Attachment 2 (the "Construction Services").
2.7 Social Services. HAMC shall provide social services for the residents of the Project.
Specifically, you shall use your best efforts, subject to appropriate funding, to
perform such services or engage a local third party to perform the services described
on Exhibit A, Attachment 3 (“Social Services”).
2.8 HAMC shall require all subcontractors working on the Project, including the
General Contractor, Architect and Engineer and all their subcontractors,
(collectively, the “Subcontractors”) to comply with Section 3 of the Housing and
Urban Development Act of 1968, as amended, 12 U.S.C. § 1701(u), further set forth
in this Agreement. All such requirements shall be set forth in a rider (the "Rider")
which will be attached to all covered subcontracts. See Exhibit A, Attachment 4.
2.9 HAMC shall require all subcontractors working on the Project, including the
General Contractor, Architect and Engineer and all their subcontractors,
(collectively, the “Subcontractors”) to comply with The Labor Standards
Regulations set forth in 24 CFR, Part 570.603; the Davis-Bacon Act as amended;
the provisions of Contract Work Hours and Safety Standards Act; the Copeland
“Anti-Kickback” Act (40 U.S.C. § 276a-276a-5; 40 USC § 327 and 40 USC § 276c)
and all other applicable Federal, state and local laws and regulations pertaining to
labor standards insofar as those acts apply to the performance of this Agreement.
HAMC shall maintain documentation that demonstrates compliance with hour and
wage requirements of this part. Such documentation shall be made available to the
County for review upon request.
3. Term. The term of this Agreement is from November 8, 2017 until project completion.
The Father Fidelis Kuban Project of HAMC funded by this Agreement must remain
affordable for a period of seventeen (17) years (“Period of Affordability”). The Period of
Affordability will begin on the date that the Completion Report is entered in HUD’s
Integrated and Disbursement System (IDIS) and will end seventeen (17) years from that
completion date. Throughout the Period of Affordability, twenty (20) County HOME
assisted units must meet the requirements set forth in this Agreement including, but not
limited to the requirements set forth in 24 CFR § 92.252. If the housing does not meet the
affordability requirements for the specified time period, all HOME funds must be repaid
to the County.
4. Contract Amount. Subject to your compliance with this Agreement and the availability
of funds, we will provide you with HOME funds not in excess of $450,000 (“Contract
Amount”) as a loan at a two percent (2%) interest annually, for a term of seventeen (17)
years. The loan shall be paid in annual payments within sixty (60) days of the close of the
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fiscal year beginning the year after project completion in IDIS. Loan terms may be subject
to a final underwriting after the County has received the closing documents from the Rental
Assistance Development (“RAD”) conversion. The performance and completion of the
Work must be in accordance with the budget outlined in Exhibit A, Attachment 6:
Budget and HOME Maximum Per-Unit Subsidy as set forth in Exhibit A, Attachment 8:
HOME Subsidy Program Limits. The terms of the loan are outlined in this Agreement
and will be secured by Exhibit B: Declaration of Covenants, Conditions and
Restrictions. Failure to meet the obligations of this Agreement will result in a repayment
of the HOME funds granted to you. This loan shall be non-recourse to HAMC.
5. Eligible Activities. In the completion of the Work, you will be responsible for ensuring
that only approved HOME eligible activities are performed in accordance with 24 CFR §
92 and this Agreement.
6. Payment.
6.1 Subject to the provisions of this Agreement and the requirements of 24 CFR § 92,
we will reimburse you for your eligible costs in performing the Work. HAMC will
receive the Contract Amount as a reimbursement of eligible expenses under HOME
program regulations. 24 CFR Sections 92.205 through 92.215 outline expenses and
activities that are generally eligible for reimbursement under the HOME program
however, for the purposes of this Agreement, the parties agree that eligible
expenses subject to reimbursement will only be rehabilitation, and development
fees.
6.2 You will not request the disbursement of funds until the funds are needed for
payment of eligible costs and expenses and the amount of the disbursement request
must be limited to the amount needed for payment of eligible costs. The amount of
each request must be limited to the amount needed and set forth in this Agreement.
Unless an amendment to the Agreement is signed by the parties, we will not pay
you any amount of money above the sum listed in Section 4 of the Agreement.
6.3 Claims. To receive reimbursement of eligible expenses, you must submit to us a
properly executed claim. A properly executed claim must include all of the
following: (i) an accurate payment request form, (ii) a completed matching
contribution form as outlined in the Agreement, and (iii) supporting documentation
for the claim. For more information on the payment procedures and the necessary
forms for a properly executed claim see Exhibit C: Payment Procedures and all
Exhibit C Attachments. The supporting documentation necessary will vary
depending on the nature of each expense, but examples of appropriate
documentation include, but are not limited to: canceled checks, invoices,
statements, unconditional lien releases with payment to subcontractors and receipts.
We will review each claim upon receipt to ensure your compliance with applicable
law and this Agreement. The approval of payment for a claim is at our reasonable
discretion. A claim that is not properly executed will not be approved for payment.
If a claim is approved, we will disburse payment in the manner, amount, increment,
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and timeframe determined at our reasonable discretion.
6.4 Program Income. All program income must be returned to the County. Program
income is defined as all gross income received by HAMC directly generated from
the use of funds provided by this Agreement or matching contributions. When
program income is generated by housing that is only partially assisted with HOME
funds or matching funds, the income shall be prorated to reflect the percentage of
HOME fund used. For this Agreement, program income will only be generated if
the property ceases to function as an affordable HOME assisted property through
sale or otherwise during the period of affordability, the seventeenth (17th)
anniversary of the date the completion report is entered into IDIS. HOME Program
Income must be returned to the County within thirty (30) business days of receipt.
Program Income includes, but is not limited to: [1] proceeds from the disposition
by sale or long-term lease of real property acquired, rehabilitated or constructed
with HOME funds or matching contributions, [2] gross income from the use or
rental of real property, owned by HAMC that was acquired, rehabilitated, or
constructed with HOME funds or match contributions, less cost incidental to
generation of the income; [3] payments of principal and interest on loans made
using HOME funds or match contributions; [4] Proceeds from the sale of loans
made with HOME funds or matching contributions; [5] Proceeds from the sale of
obligations secured by loans made with HOME funds or matching contributions;
[6] Interest earned on program income pending its disposition; and [7] Any other
interest or return on the investment permitted under 24 CFR 92.205(b) of HOME
funds or matching contributions. (Program income does not include gross income
from the use, rental or sale of real property received by the project owner,
developer, or sponsor, unless the funds are repaid to the County under the terms of
Exhibit B: Declaration of Covenants, Conditions and Restrictions.
6.5 Matching. The funds provided under this Agreement are subject to the matching
contribution required under 24 CFR § 92.218. You will provide qualified matching
funds in the amounts shown in Exhibit A, Attachment 6. Your matching funds
will be in a type determined at our sole discretion, that is acceptable under 24 CFR
§ 92.220. You will maintain throughout the Term of this Agreement a matching
contribution log form (See Exhibit C, Attachment 2: Match Log Form) that you
will make available to us, at our request.
6.6 Availability of Funds. Our reimbursement of your eligible costs is contingent upon
the availability of funds. If any action is taken by HUD, any State agency, federal
department or any other agency or instrumentality to suspend, decrease or terminate
its fiscal obligation under, or in connection with this Agreement, the County may
amend, suspend, decrease or terminate its obligations under or in connection with
this Agreement. In the event of termination, the County shall be liable for payment
only for services rendered prior to the effective date of the termination, provided
that such services performed are in accordance with the provisions of this
Agreement. The County shall give written notice of the effective date of any
suspension, amendment, or termination under this Section at least thirty (30)
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calendar days in advance of such suspension, amendment, or termination.
6.7 Liability. We are not liable to you for any purchases or contracts that you enter into
in anticipation of receiving payments under this Agreement.
6.8 Termination or Expiration. Upon the termination or expiration of this Agreement,
you will be entitled only to payment for the Work performed up to the date of the
termination or expiration, as well as any authorized expenses already incurred up
to that date. In accordance with this Section, we will make final payment within
thirty (30) days of our receipt of your approved, final, properly executed claim.
7. Construction Standards.
7.1 General. You will perform all rehabilitation work under this Agreement in
accordance with the County’s rehabilitation standards and the most current building
codes and ordinances adopted by Maricopa County including, but not limited to:
 2012 International Building Code with Local Additions and Addenda
 2012 International Residential Code
 2012 International Plumbing Code
 2012 International Mechanical Code
 2012 International Fuel Gas Code
 2012 International Green Construction Code (Optional)
 2012 International Energy Conservation Code (Optional)
 2012 International Existing Building Code
 2011 National Electric Code
 2010 ADA Standards
7.2 You will also ensure that the Work complies with the standards set forth in 24 CFR
§ 92, including without limitation, 24 CFR § 92.251 and the lead-based paint
requirements of 24 CFR § 92.355 and those set forth in part 35, subparts A, B, J,
K, M and R of Title 24. The Property must comply with 24 CFR § 92.251
throughout the Period of Affordability. You warrant to us that all materials and
equipment (including appliances) acquired under this Agreement will be new and
of good quality. You also warrant that any new construction performed in
conjunction with the Work will conform to the following: (i) Section 504 of the
Rehabilitation Act of 1973 (24 CFR § 8); (ii) the Fair Housing Act, as amended (24
CFR § 100); (iii) the requirements of the Model Energy Code published by the
International Code Council; and (iv) all applicable County of Maricopa building
codes. For each housing unit in any way assisted under this Agreement, you will
certify that the unit meets all property standards, described in Section 7 throughout
the Period of Affordability.
7.3 Inspections. The project must meet the property standards in § 92.251, upon
completion and must maintain the housing compliance and in accordance with 24
CFR § 92, including without limitation § 92.251 as required by 24 CFR § 92.504
during the Period of Affordability.
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8. Affordability.
8.1 General. You will ensure that all housing assisted under this Agreement meets the
affordability requirements of 24 CFR § 92, including without limitation, 24 CFR §
92.252, as applicable, as described in Exhibit D: Affordability Requirements. In
accordance with 24 CFR § 92.503, you will repay to us any HOME funds provided
to you that is invested in housing that does not meet the affordability requirements
or is invested in a project that is terminated before completion. Failure to comply
with the affordability requirements is a material breach of this Agreement and will
require you to repay us all funds invested in the non-compliant housing unit(s)
during the affordability period.
8.2 Surviving Provision. Section 8 of this Agreement survives pending completion of
final audits and then terminates at the conclusion of the Period of Affordability for
each housing unit assisted in conjunction with the Work.
8.3 Recaptured Funds. All funds provided are subject to recapture if the housing
assisted in conjunction with the Work no longer meets the affordability
requirements. All recaptured funds will be forwarded to us in accordance with 24
CFR § 92, including without limitation, 24 CFR § 92.503.
9. Records and Reports.
9.1 General. Pursuant to 24 CFR § 92, including without limitation, 24 CFR § 92.508
and this Agreement, you will maintain all applicable records and reports related to
the Work for six (6) years after all HOME program requirements are satisfied. You
will accurately maintain and annually provide records demonstrating that:
a. You are the entity that holds right, title, and leasehold interest in the HOME
properties purchased under this Agreement.
b. Participating residents served under this Agreement meet the income
requirements of 92.252 and other criteria required by Federal law;
c. No unlawful discrimination is occurring in the solicitation or selection
process of low-income persons or groups; and
d. The financial condition of the rental project is viable (financial statements).
9.2 Project Completion Report. A Project Completion Report is required to be
submitted to the County upon and final inspection which includes approved
Uniform Property Conditions Standards Inspection (UPCS) for each County
HOME unit (see Exhibit C, Attachment 4 and Exhibit E). Within six (6) months
of final completion of the Project you will have to demonstrate to the County that
each HOME property meets the UPCS at the time of initial occupancy and
throughout the affordability period.
9.3 Reports. You will submit to us a quarterly Contract Performance Report and Match
log.
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9.4 Reporting Obligation. Your obligation to file reports continues throughout the
Period of Affordability; even if you are paid the total Contract Amount for the Work
prior to the expiration of Period of Affordability, you will still submit the required
reports in accordance with Section 9 of this Agreement. Your submission of a late
report or your failure to deliver a report to us is a failure of your obligations under
this Agreement. You will provide to us copies of the reports when they are due to
us under this Agreement or at any time upon our request.
9.5 Record Retention.
a. This provision applies to all financial and programmatic records, supporting
document, statistical records and other records of the HAMC that are related
to this Agreement.
b. HAMC shall retain all records relevant to this Agreement as prescribed by
24 CFR § 92.508 for a minimum of six (6) years after expiration of the
period of affordability or until after the resolution of any audit questions
which could be more than six (6) years, whichever is longer, and the
Department, federal and State auditors and any other persons duly
authorized by the Department shall have full access to, and the right to
examine, copy and make use of any and all of the records.
9.6 Financial Records. You will maintain all financial records and accounting systems
required by applicable federal regulation or directive. In addition, you will provide
annual audited financial statements or required single audit reports as applicable.
You agree that we and HUD may monitor, audit, and inspect your records and
accounting systems at any time in accordance with Section 10 of this Agreement.
9.7 Changes to Reporting Requirements. We reserve the right to change the
reporting requirements required under this Agreement as is reasonably necessary
to come into compliance with applicable HOME program regulations. You agree
to come into compliance with such reasonable changes upon receipt of notice from
us or as soon as reasonably possible thereafter.
9.8 Surviving Provision. Section 9 of this Agreement survives the expiration or
termination of this Agreement and the conclusion of the Period of Affordability for
each housing unit assisted in conjunction with the Work for a period of one year.
10. Inspections and Audits. In order to determine compliance with this Agreement, you agree
to allow the County and HUD, as well as representatives of both agencies, to perform
random inspections and audits upon seven (7) days written notice to you. Inspections and
audits under this Agreement require that you make your offices, program, and related
records available to us during normal business hours. Provided, however, County and HUD
will make reasonable efforts not to disrupt the daily operation of HAMC. Records related
to the performance of your Work under this Agreement may be inspected including, but
not limited to, the records outlined in Section 9 of this Agreement. You agree that you will
cooperate during any inspection or audit. The location of the audit will be chosen by the
agency performing the audit. Nothing herein will be construed to require access to
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privileged or confidential information as set forth in federal or state law.
11. Indemnification.
Each Party (as "indemnitor") agrees to indemnify, defend, and hold harmless the other
Party (as "indemnitee") from and against any and all claims, losses, liability, costs, or
expenses (including reasonable attorney's fees) (hereinafter collectively referred to as
"claims") arising out of the negligent performance of this Agreement, but only to the extent
that such claims which result in vicarious/derivative liability to the indemnitee are caused
by the act, omission, negligence, misconduct, or other fault of the indemnitor, its officers,
officials, agents, employees, or volunteers.
12. Audits and Reviews.
As a recipient of HOME funds we are subject to audit and review to determine compliance
with applicable laws and regulations. You shall, at your own expense, file with the Human
Services Department, Housing and Community Development Division by March 30th, of
each year either audited financial statements prepared in accordance with federal single
audit requirements; or, financial statements prepared in accordance with generally accepted
accounting principles audited by an independent certified public accountant. As a recipient
of our HOME funds, you are also subject to the federal audit requirements of the Single
Audit Act of 1984, as amended (Pub. L. No. 98-502) (codified at 31 U.S.C. §§ 7501, et
seq.). You shall comply with 2 CFR § 200 et seq., as applicable, and 24 CFR §§ 44, 84,
85, 92 and 570 as applicable. Upon completion, such audits shall be made available for
public inspection. Audits shall be submitted within the twelve (12) months following the
close of the fiscal year. Corrective action on such matters listed in the report(s) shall be
taken within six (6) months of the date of receipt of the reports. The Department shall
consider sanctions as described in 2 CFR § 200 et seq., if you do not comply with the audit
requirements.
13. Audit Disallowances.
13.1 HAMC shall, upon written notice thereof, reimburse the County for any payments
made under this Agreement that are disallowed by a federal, State or County audit
in the amount of the disallowance, as well as court costs and attorneys’ fees the
County spends to pursue legal action relating to a disallowance. Court costs and
attorneys’ fees incurred will be specifically identified as applicable to the
recovery of the disallowed costs in question.
13.2 If the County determines that a cost for which payment has been made is a
disallowed cost, the Department will notify you in writing of the disallowance and
the required course of action, which shall be at the option of the Department,
either to adjust any future claim submitted by HAMC by the amount of the
disallowance or to require immediate repayment of the disallowed amount by
HAMC issuing a check payable to the County.
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14. Suspension and Termination.
14.1 Termination for Convenience. Except as provided in 24 CFR § 85.43, either party
may terminate this agreement for convenience at any time, as set forth at 24 CFR §
85.44, by giving sixty (60) days written notice to the other party of such
termination. Both Parties shall agree upon the termination conditions including the
effective date of the termination. The party initiating the termination shall notify
the other party in writing stating the reasons for such termination. In the event of a
termination in accordance with 24 CFR § 85.44, the party seeking termination shall
give the other 60 business-days prior written notice. The notice shall be given by
personal delivery or by registered or certified mail, postage prepaid and return-
receipt requested.
14.2 Termination or Suspension for cause. In accordance with 24 CFR § 85.43, we
may suspend or terminate HOME funds and seek the return of unexpended funds
(less just compensation for work satisfactorily competed that to date, has not been
paid), or the reimbursement of funds improperly expended, or the recovery of funds
improperly acquired if you materially fail to comply with any term of this
Agreement or if you fail to maintain a good faith effort to carry out the purpose of
this Agreement. Instances of a material failure under this Agreement will include,
but are not limited to:
a. Failure to comply with any of the federal, state or local rules, regulations or
provisions referred to, in the Agreement or the statutes, regulations,
executive orders and HUD guidelines, policies or directives as may become
applicable at any time;
b. Failure, for any reason, to fulfill in a timely and proper manner the
obligations described in this Agreement;
c. Ineffective or improper use of funds provided under this Agreement;
d. Improper disposition of resale or recapture proceeds;
e. Improper disposition of program income;
f. Noncompliance with applicable financial record requirements, accounting
principles, or standards,
g. Noncompliance with recordkeeping, records retention or reporting
requirements.
h. Submission of reports that are incorrect or incomplete in any material
respect;
i. You become insolvent or are a party to any voluntary bankruptcy or
receivership proceeding, you make an assignment for a creditor, or there is
any similar action that affects your capability to perform under the
Agreement;
j. You are the subject of a petition for involuntary bankruptcy not removed
within (sixty) 60 days; or
k. Conducting business in an illegal manner.
l. The County has the right to terminate this Agreement upon twenty-four (24)
hour notice when the County deems the health or welfare of the service
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recipients are endangered or your non-compliance jeopardizes funding
source financial participation.
m. Notwithstanding anything to the contrary contained herein, prior to County
taking any action pursuant to this Section 16.2, County shall provide written
notice of HAMC’s material failure under this Agreement to AHP Housing
Fund 106, LLC (the “Investor Member”) at the address provided in Section
49. The Investor Member shall have the right to cure such material failure
within 15 days after receipt of written notice by County.
14.3 Disposition of Funds upon Suspension/Termination: Notwithstanding the
suspension or termination of this Agreement, or the final determination of the
proper disposition of funds, you shall, without intent to limit or with restrictions,
be subject to the following:
a. Revocation of all awards of funding and any approvals related to the Project
described in the Special Provision or Work Statement. Thereby, any
entitlements to compensation after suspension or termination of this
Agreement are similarly revoked and unavailable.
b. Continued liability or responsibility associated with the Special Provision
or Work Statement.
c. Acknowledge that suspension or termination of this Agreement does not
affect or terminate any rights against HAMC at the time of suspension or
termination, or that may accrue later. Nothing herein shall be construed to
limit or terminate any right or remedy available under contract or rule.
Wavier of a breach or default of any term, covenant, or condition of this Agreement
or any federal, state, or local law, rule, or regulation shall not operate as a waiver
of any subsequent breach of the same or any other term, covenant, condition, law,
rule, or regulation.
15. Arizona Law.
15.1 A.R.S. § 38-511. We may terminate this Agreement pursuant to A.R.S. § 38-511,
within three (3) years after the execution of this Agreement, without penalty or
further obligation, if any person significantly involved in initiating, securing,
drafting, or creating the Agreement for us becomes an agent or employee for you.
Such termination is effective when you receive written notice of the termination.
15.2 A.R.S. § 42-17106. Pursuant to A.R.S. § 42-17106, we are a governmental agency
which relies upon the appropriation of funds by our governing body to satisfy our
obligations. We represent that we intend to pay all monies due under this
Agreement if such funds have been legally appropriated. If we reasonably
determine that we do not have the funds to meet our obligations under this
Agreement, we will have the right to terminate the Agreement without penalty on
the last day of the fiscal period for which funds were legally available. In the event
of such termination, we agree to provide written notice to you of our intent to
terminate thirty (30) days prior to the termination date.
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15.3 A.R.R §11-952. We agree that this Agreement constitutes an intergovernmental
agreement as defined by A.R.S. §11-951 et seq. and is subject to the terms and
conditions of A.R.S. 11-952.
16. Remedies.
Each party may exercise all available legal and equitable rights and remedies on account
of any breach or default of this Agreement, including, without limitation, an action for
specific performance of this Agreement or the non-defaulting party may terminate the
Agreement and the termination will be effective immediately upon notice to the defaulting
party or as provided under this Agreement or applicable law. Neither party will be liable
for incidental, special, or consequential damages in terminating this Agreement.
17. Reversion of Assets. Upon the expiration or termination of this Agreement, you must remit
to us any HOME funds on hand at the time and any accounts receivable attributable to the
use of HOME funds.
18. Anticipatory Repudiation. Whenever we in good faith have reason to question your intent
to perform, we may demand that you give a written assurance of your intent to perform. In
the event that the demand is made and you do not give us written assurance within forty-
five (45) days after receipt of the demand, we may treat this failure as an anticipatory
repudiation of the Agreement and a material failure of this Agreement.
19. Religious Organizations/Activities. You may use HOME funds as described in 24 CFR
§ 92.257. In the performance of the Work, you may not engage in inherently religious
activities, such as worship, religious instruction or proselytization. If you conduct such
activities, the activities must be offered separately, in time or location, from the assistance
funded under this Agreement, and participation must be voluntary for the beneficiaries of
the assistance provided. You will not, in providing program assistance, discriminate against
a program beneficiary or prospective program beneficiary on the basis of religion or
religious belief. You may not use HOME funds for the acquisition, construction or
rehabilitation of structures to the extent that those structures are used for inherently
religious activities. You may use HOME funds for the acquisition and construction or
rehabilitation of structures only to the extent that those structures are used for conducting
eligible activities under the HOME program. Where a structure is used for both eligible
and inherently religious activities, you may not use HOME funds in amounts that exceed
the cost of those portions of the acquisition and construction or rehabilitation that are
attributable to eligible activities in accordance with the cost accounting requirements
applicable to HOME funds in 24 CFR § 92.
20. Independent Contractor. Both parties agree that in performing your respective duties and
responsibilities under this Agreement, you are an independent contractor and all persons
employed by you, either directly or indirectly, are your employees, not our employees.
Accordingly, you are responsible for payment of all applicable taxes arising out of your
activities under this Agreement, including without limitation, federal and state income tax
withholding, Social Security tax, unemployment insurance taxes, and any other taxes or
business license fees as required. Your employees will not be regarded as our employees
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or agents for any purpose, including the payment of unemployment or workers’
compensation.
21. Compliance with Federal, State, and Local Law. As a recipient of HOME funds, you
will comply with and stay fully informed of all Federal, State, and local laws and
regulations applicable to the Agreement and the Work, including, but not limited to, the
specific laws enumerated in this Section 22, and you agree to comply with the same at your
own expense. You bear full responsibility for training, safety, and providing necessary
equipment to your employees to achieve compliance. Upon our request, you will
demonstrate to us to our satisfaction any programs, procedures, and other activities used to
ensure compliance. You will comply with all Federal laws and regulations under 24 CFR
§ 92 as applicable to the Work and this Agreement including specifically, but not limited
to, those set forth in 24 CFR § 92 Subpart G and Subpart H.
22. Marketing and Outreach. If the Work contains five (5) or more County HOME assisted
housing units, you will follow the Affirmative Marketing and Minority and Women’s
Business Enterprise policies in Exhibit F: Attachment 1 and 2, as further described in 24
CFR § 92.351.
23. General Federal Requirements. All federal requirements in 24 CFR § 5, Subpart A and
the nondiscrimination requirements of Section 282 of the HOME Investment Partnership
Act as set forth in 24 CFR § 92.350.
24. U.R.A. and Real Property Acquisition. A displaced person (defined in paragraph (c)(2)
of 24 CFR § 92.353) must be provided relocation assistance at the levels described in, and
in accordance with the requirements of The Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970 (42 U.S.C. 4201-4655) and the implementing
regulations at 49 CFR § 24 and 24 CFR § 92.353.
25. Labor Requirements. If more than eleven (11) units are developed in this contract, all
labor requirements set forth in 24 CFR § 92.354, and if applicable, all construction
contracts will contain all required wage provisions, including but not limited to, those
required under: the Davis-Bacon Act (40 U.S.C. 276a-5), as amended; the Contract Work
Hours and Safety Standards Act (40 U.S.C. 327-333), as amended; the Copeland “Anti-
kickback” Act of 1986, as amended; the Fair Labor Standards Act of 1938, as amended;
and the provisions of 24 CFR § 24 regarding Government-wide Debarment and
Suspension, as amended. You warrant that you shall pay all its employees who are
performing work or providing services under this Agreement not less than the minimum
wage specified under Section 206(a)(1) of the Fair Labor Standards Act of 1938, as amended
(29 U.S.C. §§ 201, et seq. ) by law, regulation or Executive Order 13658.
26. 2 CFR § 200. The requirements applicable to for-profit agencies receiving HOME funding
and the following requirements of 2 CFR § 200 and 24 CFR § 84, as applicable: §§ 84.2,
84.5, 84.13 - 84.16, 84.21, 84.22, 84.26 - 84.28, 84.30, 84.31, 84.34 - 84.37, 84.40 - 84.48,
84.51, 84.60 - 84.62, 84.72, and 84.73. (OMB Circulars may be obtained from: Executive
Office of the President, Publication Service, 725 17th Street, N.W. Suite G-2200,
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Washington, DC 20503; telephone (202) 395-7332; and
http://www.whitehouse.gov/omb/circulars_default.)
27. Drug-Free Workplace. We have adopted a policy establishing a drug-free workplace for
ourselves and those doing business with us to ensure the safety and health of all persons
working on our contracts and projects. You will require a drug-free workplace for all of
your employees and subcontractors working under this Agreement. Specifically, you will
notify all of your employees working under this Agreement in writing that they are
prohibited from the manufacture, distribution, dispensation, possession, or unlawful use of
a controlled substance in the workplace. You agree to prohibit the use of intoxicating
substances by all of your employees and you will use best efforts to ensure that your
employees do not use or possess illegal drugs while in the course of performing their duties.
For more information, see Exhibit G: Contractor Certifications.
28. Immigration Reform & Control Act of 1986 and A.R.S. §44-4401. You will comply
with the Immigration Reform and Control Act of 1986 (IRCA) in your performance under
this Agreement and will permit us and our agents to inspect applicable personnel records
to verify such compliance. You will ensure and keep appropriate records to demonstrate
that all individuals employed under the terms of this Agreement have a legal right to live
and work in the United States.
A. The Parties warrant that they are in compliance with A.R.S. Section 41-4401 and
further acknowledge that:
i. Any contractor or subcontractor who is contracted by a Party to perform
work on the subject of this Agreement shall warrant their compliance with
all federal immigration laws and regulations that relate to their employees
and their compliance with the E-Verify program under A.R.S. Section 23-
214(A), and shall keep a record of the verification for the duration of the
employee’s employment or at least three years, whichever is longer.
ii. Any breach of the warranty shall be deemed a material breach of the
Agreement, and is subject to penalties up to and including termination of
the contract.
iii. The Parties retain the legal right to inspect the papers of any contractor
or subcontractor employee who works on the project to ensure that
the contractor or subcontractor is complying with the warranty above and
to require that the contractor make all papers and employment records of
any employee available during normal working hours in order to facilitate
such an inspection.
29. Nothing in this Agreement shall make any contractor or subcontractor an agent or
employee of the Parties to this Agreement.
30. Nondiscrimination. In order to preserve human dignity and respect cultural diversity, you
will take all actions necessary to ensure that all applicants, tenants, employees, clients, and
potential clients are treated fairly, courteously, and without bias. You will comply with all
applicable Federal, State, and local laws related to nondiscrimination, fair housing, equal
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opportunity and equal employment opportunity in your work under this Agreement,
including without limitation: Title VII of the U.S. Civil Rights Act of 1964, as amended,
section 504 of the Federal Rehabilitation Act, and the Americans with Disabilities Act (42
U.S.C. § 12101 et seq.).
31. A.R.S. § 41-4401 and A.R.S. § 23-214(A). Under A.R.S. § 41-4401, you warrant to us
that you and each of your subcontractors will comply with, and are contractually obligated
to comply with, all federal immigration laws and regulations that relate to your employees,
and A.R.S. § 23-214(A) (“Immigration Warranty”). A breach of the Immigration Warranty
constitutes a material breach of this Agreement and will subject you to penalties up to and
including termination of this Agreement at our sole discretion. We retain the right to inspect
the papers of your employees and the employees of any subcontractor who works under
this Agreement to ensure that you and the subcontractor are in compliance with the
Immigration Warranty. We may, in our sole discretion, conduct random verifications of
the employment records of you and any subcontractor to ensure compliance with the
Immigration Warranty. You will assist us in conducting any inspection or random
verification. Neither you nor any subcontractor will be deemed to have materially breached
the Immigration Warranty if you or the subcontractor establishes that you/it has complied
with both the employment verification provisions prescribed by Sections 274A and 274B
of the Federal Immigration and Nationality Act, and the E-Verify requirements prescribed
by A.R.S. § 23-214(A). See Exhibit G: Contractor Certifications.
32. A.R.S. § 35-391 et seq. and § 35-393 et seq. You certify that you are in compliance with
A.R.S. § 35-391 et seq. and A.R.S. § 35-393 et seq. as they apply to doing business with
or having a material interest in a company that does business with Sudan and Iran,
respectively. Your certification will remain in effect throughout the Term of this
Agreement. If we determine that you submitted a false certification or representation, or
are otherwise not in compliance with this provision, we reserve the right in our sole
discretion to impose any and all remedies provided by law including immediate termination
of this Agreement. You are responsible to us for all costs necessary to verify compliance.
33. State Sponsors of Terrorism Prohibited. Per A.R.S. § 35-392, you will not be in violation
of Section 6(j) of the Federal Export Administration Act and subsequently prohibited by
the State of Arizona from selling goods or services to us.
34. You shall procure all permits, insurance, licenses for, and pay the charges and fees
necessary and incidental to, the lawful conduct of his/her business, and as necessary
complete any required certification requirements, required by any and all governmental or
non-governmental entities as mandated to maintain compliance with and in good standing
for all permits and/or licenses. You shall keep fully informed of existing and future trade
or industry requirements, Federal, State and Local laws, ordinances, and regulations which
in any manner affect the fulfillment of a Contract and shall comply with the same. You
shall immediately notify both Office of Procurement Services and the using agency of any
and all changes concerning permits, insurance or licenses.
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35. HAMC and its Subcontractors furnishing finished products, materials or articles of
merchandise that will require installation or attachment as part of the Contract, shall
possess any licenses required. You and your General Contractor and its Subcontractors are
not relieved of its obligation to possess the required licenses by a subcontracting of the
labor portion of the Contract.
36. Clean Air Act. If the total face value of this Agreement exceeds $100,000, then YOU agree
to comply with all regulations, standards and orders issued pursuant to the Clean Air Act of
1970, as amended (42 U.S.C. §§ 7401, et seq.), to the extent any are applicable by reason of
performance of this Agreement.
37. Environmental and Intergovernmental Review. Completion of the Environmental
Review Record (ERR) is mandatory before taking any physical action on a site or entering
into choice limiting contracts. Only exempt activities such as administration may be taken
and reimbursed by the County prior to receiving a written release of HOME funds to you.
Exempt activities described in 24 CFR § 58.34(a)(1)-(11) are activities that generally have
no physical impact on the environment. If federal funds are involved in an activity, neither
federal nor non-federal funds may be expended or committed by contract (conditional or
not) for property acquisition, rehabilitation, conversion, lease, repair or construction
activities, until HUD and/or County provides written authorization based on approval of
an ERR. You agree not to commit or incur any expenditure for HOME activities until this
environmental review process has been completed. Should it be determined that you
incurred expenses in violation of the NEPA requirements, you will be responsible for the
full costs for such expenditures and repayment of any related reimbursements. You shall
provide all necessary assistance to the County in completing this environmental review
process.
Although you must complete the Environmental Review Record (ERR) for the County’s
review, you do not assume the environmental certification responsibilities as described in
24 CFR § 92.352, or responsibilities for initiating the intergovernmental review process of
Executive Order 12372 as described at 24 CFR § 92.357.
Release Of Funds (ROF) - No funds may be encumbered prior to the completion of the
Environmental Review. The Environmental Review Record (ERR) must be completed
before any funds are obligated. Funding is also conditioned upon the completion of the
ERR of every activity site by address. The responsibility for certifying the appropriate ERR
and ROF shall rest with the County. It is the responsibility of the Developer to refrain from
making any commitments and expenditures on a site until a Release of Funds has been
issued by the County. Failure to meet these conditions will mean that requested funds will
not be disbursed.
38. Project Requirements. You agree that you will comply with the project requirements in
24 CFR § 92 Subpart F, as applicable, in performing the Work under this Agreement.
39. Relationship. This Agreement does not create a joint venture, legal partnership or any
other cooperative or joint arrangement between you and us.
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40. Authority. The Parties represent and warrant to each other that they each have full power
to enter into and perform this Agreement in accordance with its terms and conditions, and
that the individual executing this Agreement is authorized to do so. This Agreement
constitutes a binding obligation of each party.
41. Successors and Assignment. You will not assign or otherwise transfer, in whole or in part,
this Agreement or any of your rights or duties under the Agreement without first obtaining
our written consent, which shall not be unreasonably withheld. Any assignment or transfer
of this Agreement by you without our consent will be null and void. All attempts by you
to assign any part of this Agreement without our consent will give us the right, at our
option, to terminate the Agreement. No granting of consent to any assignment will relieve
you from any of your obligations and liabilities under this Agreement. The terms,
covenants and conditions of this Agreement will inure to the benefit of, and be binding
upon, the parties hereto and their respective permitted successors and assigns.
42. No Waiver. Any delay or failure to exercise any right or option in this Agreement does not
constitute a waiver of either party’s rights under this Agreement. Any failure or delay to
exercise a right does not release a party of any of the warranties or other obligations of the
Agreement. No right of this Agreement can be waived unless done so in writing by the
waiving party. The County’s acceptance of performance that is not in strict compliance
with the terms herein does not constitute waiver of strict compliance of future compliance.
43. Entire Agreement and Amendments. This Agreement, along with its Exhibits and
Attachments, represents all the terms and conditions agreed on by the parties with respect
to its subject matter. The Agreement replaces and supersedes any previous agreements,
representations, understandings, and negotiations of the parties, oral or written, with
respect to the subject matter of this Agreement. Amendments to the Agreement will only
be done by a written instrument signed by the Parties. You must receive prior written
approval from the County for all program amendments involving changes in the scope of
the work, completion dates of project phases, location of approved activities, or budget.
You will document any changes or Amendments to this Agreement in your records as a
part of the requirements set forth in this Agreement. Your request for an amendment must
be made to the Assistant Director, Housing and Community Development and must be
made on the HOME Amendment Request Form attached to this Agreement as Exhibit A,
Attachment 7.
44. Further Documents and Acts. Both parties agree to execute and deliver all such
documents and perform all such acts as reasonably may be requested by the other party in
order to conduct the activities described herein and to enforce the applicable affordability
requirements, including, but not limited to, any documents required by us to secure the
funding provided under this Agreement, such as a promissory note, deed of trust, use
restrictions or other legal documents. The parties agree that, if applicable, the affordability
requirements of 24 CFR § 92.252 will be enforced by deed restrictions the form of which
is attached as Exhibit B: Declaration of Covenants, Conditions and Restrictions. You
agree and acknowledge that the County reserves the right to amend the form document
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(attached to this Agreement as Exhibit B) in order to come into compliance with applicable
laws and regulations and/or protect our financial interests prior to execution of the form
documents.
45. Acknowledgements and Use of Name. You will acknowledge the contribution of the
County of Maricopa HOME Program in all Project promoting publications during the Term
of this Agreement.
46. Certifications. You will comply with all certification requirements as described and
executed in Exhibit G: Contractor Certifications.
47. Notice. All notices to be given pursuant to this Agreement will be delivered to the addresses
listed in this Section. Notice will be personally delivered, sent via certified or registered
mail (postage prepaid), sent via overnight courier, or via fax. Notices that you send to us
will be addressed to:
Notices that you send to us will be addressed to:
Housing and Community Development, Assistant Director
234 N. Central Ave., Third Floor,
Phoenix, AZ 85004
Attention: Rachel Milne
Phone Number: 602-506-1528
Notices that we send to you will be addressed to:
HAMC
Gloria Munoz, Executive Director
8910 N. 78th Ave.
Peoria, AZ 85345
Phone Number: 602-744-4500
Receipt of any notice or communication under this Agreement means actual receipt, or two
(2) business days after the notice or communication is deposited with the U.S. post office
for delivery to the appropriate above listed address, whichever occurs first.
48. Subcontracting. You may not subcontract any part of your Work under this Agreement
without our express written permission. If you receive authorization to subcontract, it is
agreed that all subcontractors performing work under this Agreement will comply with its
provisions. Further, all agreements between you and your subcontractors will provide that
the terms and conditions of this Agreement be incorporated therein.
49. No Third Party Beneficiaries. This Agreement is intended for the exclusive benefit of the
parties. Nothing set forth in this Agreement is intended to create, or will create, any
benefits, rights, or responsibilities in any third parties.
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50. Federal Excise Taxes. We are exempt from paying certain Federal Excise Taxes and will
furnish an exemption certificate to you upon request. We are not exempt from State and
local sales and use taxes.
51. Amounts Due to the County of Maricopa. You will remain current in all obligations due
to us during your performance of the Work under this Agreement. Obligations due to us
include all monies due to any department of the County of Maricopa, whether related to
the Work or not, including, but not limited to, Business Services, Tax Audit & Collections,
Utilities, and Code Compliance.
52. Background Check. We may conduct criminal, driver history, and all other requested
background checks of your employees who would perform work under the Agreement or
who will have access to our information, data, or facilities. The background checks will be
performed in accordance with our current background check policies. You will
immediately, upon receipt of notice from us, replace any officer, employee, or agent that
fails the background check such that they are no longer performing work under this
Agreement.
53. Security Clearance and Removal of Employees. We have the final right, based on
security reasons to determine: (i) when security clearance of your employees is required;
(ii) the nature of the security clearance, up to and including fingerprinting your personnel;
and (iii) whether or not any individual or entity may provide work under this Agreement.
If we object to any of your employees for any reasonable cause, then you will, upon notice
from us, remove any such individual from the performance of work under this Agreement.
54. Safeguarding of Our Property. You will be responsible for any damage to our real
property and damage or loss to our personal property when such property is the
responsibility of or in the custody of you, your employees, or your representatives.
55. Warranty of Rights. You warrant that you have title to, or the right to allow us to use, any
materials and services being provided in conjunction with your Work, and that we may use
same without suit, trouble, or hindrance from you or a third party.
56. Proprietary Indemnification. You will, without limitation, at your expense defend us
against all claims asserted by any person that anything provided by you infringes a patent,
copyright, trade secret or other intellectual property right and will, without limitation, pay
the costs, damages and attorneys' fees awarded against us in any such action, or pay any
settlement of such action or claim. Each party agrees to notify the other promptly of any
matters to which this provision may apply and to cooperate with each other in connection
with such defense or settlement. If a preliminary or final judgment will be obtained against
our use or operation of the items provided by you hereunder or any part thereof by reason
of any alleged infringement, you will, at your expense and without limitation, either (a)
modify the item so that it becomes non-infringing; (b) procure for us the right to continue
to use the item; (c) substitute for the infringing item other item(s) having at least equivalent
capability; or (d) refund us an amount equal to the price paid, less reasonable usage, from
the time of installation acceptance through cessation of use, which amount will be
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calculated on a useful life not less than five (5) years, and plus any additional costs we may
incur to acquire substitute supplies or services.
57. Force Majeure. Failure by either party to perform its duties and obligations will be
excused by unforeseeable circumstances beyond its reasonable control, including acts of
nature, acts of the public enemy, riots, fire, explosion, legislation, and governmental
regulation. The party, whose performance is so affected will, within five (5) days, notify
the other party of all pertinent facts and identify the force majeure event. The party whose
performance is so affected will also take all reasonable steps, promptly and diligently, to
prevent such causes if it is feasible to do so, or to minimize or eliminate the effect thereof.
The delivery or performance date will be extended for a period equal to the time lost by
reason of delay, plus such additional time as may be reasonably necessary to overcome the
effect of the delay, provided however, under no circumstances will delays caused by a force
majeure extend beyond one hundred-twenty (120) days from the scheduled delivery or
completion date of a task.
58. Public Records. You acknowledge that we are a public entity, subject to Arizona’s public
records laws (A.R.S. § 39-121 et seq.) and that any documents related to this Agreement
may be subject to disclosure pursuant to State law in response to a public records request
or to subpoena or other judicial process. You also acknowledge that the public may be
provided access to the records related to this Agreement in accordance with HOME
program regulations and guidelines.
59. Non-exclusivity. We, in our sole discretion, reserve the right to request the work set forth
herein from other sources when deemed necessary and appropriate. No exclusive rights are
encompassed through this Agreement.
60. Grant Administration. In accordance with federal regulations, including 24 CFR § 92,
we are responsible for ensuring the administration of HOME Program funds in accordance
with all program requirements.
61. Agreement Administration. The Agreement will be administered by our Assistant
Director Housing and Community Development and his/her authorized representative(s);
refer all questions regarding the Agreement to that person.
62. Management Contingency. You will notify us of any significant program or staffing
changes, which could materially affect this Agreement or the Work.
63. Surviving Provisions. Notwithstanding any completion, termination, or other expiration
of this Agreement, all provisions which, by the terms of reasonable interpretation thereof,
set forth rights and obligations that extend beyond completion, termination, or other
expiration of this Agreement, will survive and remain in full force and effect for a period
of one year. Except as specifically provided in this Agreement, completion, termination, or
other expiration of this Agreement will not release any party from any liability or obligation
arising prior to the date of termination.
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64. A.R.S. § 38-504. Pursuant to A.R.S. § 38-504, a current or former public officer or
employee within the last twelve (12) months will not represent another organization before
us on any matter for which the officer or employee was directly concerned and personally
participated in during their service or employment or over which they had a substantial or
material administrative discretion. Further, while employed by us and for two (2) years
thereafter, public officers or employees are prohibited from disclosing or using, without
appropriate authorization, any confidential information acquired by such personnel in the
course of their official duties.
65. Risk of Loss. You agree to bear all risk of loss, injury, or destruction of goods or equipment
incidental to providing the Work and such loss, injury, or destruction will not release you
from any obligation under this Agreement.
66. Permits and Licenses. You will procure all permits and licenses, and pay all charges and
fees necessary and incidental to the lawful conduct of business.
67. Severability. If any term, provision, covenant or condition of this Agreement is held to be
invalid, unenforceable or void, the remainder of this Agreement will remain in full force
effect.
68. Right to Recover. You will do nothing to prejudice our right to recover against third parties
for any loss, destruction, or damage to our property. At our request and expense, you will
furnish us with reasonable assistance and cooperation, including in the prosecution or
defense of suit and the execution of instruments of assignment in our favor in obtaining
recovery.
69. Continuation During Disputes. You agree that during any dispute between the parties,
you will continue to perform your obligations under this Agreement until the dispute is
settled, we instruct you to cease performance, you are enjoined or prohibited by judicial
action or to continue to perform would be a violation of any rule, law, regulation, code,
statute or ordinance, or are otherwise required or obligated to cease performance by other
provisions in this Agreement.
70. Conflict of Interest. The parties agree that this Agreement and the obligations of the
parties is subject to the Conflict of Interest requirements of the HOME program, including,
as applicable: 24 CFR § 85.36, 24 CFR § 84.42, 24 CFR § 92.356, and HOMEfires Volume
2, Number 2.
71. Provisions Required by Law. Any provision required by law to be in this Agreement is a
part of this Agreement as if fully stated in it.
72. Governing Law. Any dispute with respect to this Agreement and the rights and duties
created by this Agreement will be governed by the laws of the State of Arizona and litigated
in a court of competent jurisdiction in Maricopa County, Arizona. The parties agree that,
if applicable, should a dispute created by this Agreement be governed by Federal law, the
issue will be litigated in a Federal Court of competent jurisdiction in Maricopa County,
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Arizona. The parties will not raise, and hereby waive, any defenses based on venue,
inconvenience of forum, or lack of personal jurisdiction in any action or suit brought in
accordance with this Agreement. The parties acknowledge that they have read and
understand this clause and agree voluntarily to its terms.
73. Definitions. All terms not otherwise defined in this Agreement have the meanings given
to them in 24 CFR § 92.
74. Incorporation of Exhibits and Attachments by Reference. All Exhibits and
Attachments to this Agreement are fully incorporated as though set forth in the body of this
Agreement.
75. Headings. All headings used in this Agreement are only for reference purposes and do not
affect the interpretation of the Agreement.
76. Lobbying. No federal appropriated funds have been paid or will be paid by or on behalf of
the HAMC to any person for influencing or attempting to influence an officer or employee
of any agency, a member of Congress, an officer or employee of Congress, or an employee
of a member of Congress in connection with the awarding of any federal contract, the
making of any federal grant, the making of any federal loan, the entering into of any
cooperative agreement, and the extension, continuation, renewal, amendment, or
modification of any federal contract, grant, loan, or cooperative agreement.
If any funds, other than federal appropriated funds, have been paid or will be paid to any
person for influencing or attempting to influence an officer or employee of any agency, a
member of Congress, an officer or employee of Congress, or an employee of a member of
Congress in connection with any federal contract, grant, loan or cooperative agreement, the
HAMC shall complete and submit OMB Form-LLL, titled "Disclosure of Lobbying
Activities," in accordance with its instructions and 31 U.S.C. § 1352.
77. Political Activities Prohibited. None of the funds, materials, property or services
contributed by the County or the HAMC under this Agreement shall be used for any partisan
political activity, or to further the election or defeat of any candidate for public office.
78. Grievance Procedure: You shall establish a system through which applicants for, and
recipients of, services may present grievances and may take appeals about eligibility and
other aspects of the work under this Agreement. The grievance procedure shall include
provisions for notifying the applicants for, and recipients of, services of their eligibility or
ineligibility for service and their right to appeal to the County if the grievance is not satisfied
at your level. This system shall include protest procedures for decisions related to contract
awards and requests for reasonable accommodations for persons with disabilities.
79. Conflict Waiver: Maricopa County and Housing Authority of Maricopa County
acknowledge that they are aware that the Civil Services Division of the Maricopa County
Attorney’s Office (Civil Division) may be chosen as the attorney for the other Parties to
this Agreement, and the signing Parties acknowledge that they are aware of a potential
22

conflict of interest, and waive any claim of conflict of interest, which may arise by virtue
of Civil Division’s representation of another Party to this Agreement.
80. Israel Boycott: By submitting this proposal the Contractor certifies that they are in
compliance with Article 9, Arizona Revised Statutes Section 35-393 et seq
81. Employment Non-discrimination: See exhibit G for equal employment and affirmative
action policy requirements.
82. Public Records: Notwithstanding any other provision of this Agreement to the contrary,
the Parities acknowledge that they are subject to A.R.S. 39-121 through 39-128 regarding
public records. Any provision regarding confidentiality is limited to the extent necessary
to comply with the provisions of Arizona law.
83. Contractor Employee Whistleblower Rights And Requirement To Inform
Employees Of Whistleblower Rights.
A. The Parties agree that this Contract and employees working on this Contract will
be subject to the whistleblower rights and remedies in the pilot program on
contractor employee whistleblower protections established at 41 U.S.C. § 4712 by
section 828 of the National Defense Authorization Act for Fiscal Year 2013 (Pub.
L. 112–239) and section 3.908 of the Federal Acquisition Regulation;
B. Contractor shall inform its employees in writing, in the predominant language of
the workforce, of employee whistleblower rights and protections under 41 U.S.C.
§ 4712, as described in section 3.908 of the Federal Acquisition Regulation.
Documentation of such employee notification must be kept on file by Contractor
and copies provided to County upon request.
[Signatures on following page]
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By executing below, each party acknowledges that it understands, approves, and accepts all of the
terms of this Agreement and the attached Exhibits and Attachments.
Housing Authority of Maricopa County Maricopa County
(Described as “you” or “HAMC” (Described as “we” or “County”
throughout the Agreement) throughout the Agreement)
By: ______________________________ By: ______________________________
Chairman, Board of Commissioners Chairman, Board of Supervisors
Attested By: Attested By:
__________________________________ __________________________________
Clerk of the Board Date Clerk of the Board Date
Approved as to form: Approved as to form:
By: _______________________________ By: _______________________________
Deputy County Attorney Date Deputy County Attorney Date
HAMC Maricopa County
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