MADISON HEIGHTS DEVELOPMENT HOME AGREEMENT PHASE I.PDF

Madison Heights Phase I
Maricopa County HOME Agreement
CONTRACT FOR SERVICES AGREEMENT
A DEVELOPER AGREEMENT BETWEEN
MARICOPA COUNTY
ADMINISTERED BY ITS
HUMAN SERVICES DEPARTMENT
AND
MADISON HEIGHTS PHASE I, LLC
Contract Amount: $320,000
Contract Start Date: May 20, 2015
Funding Completion Date: June 30, 2017
Contract Termination Date: 20 years from the date of completion or on December 31, 2037, whichever is
later.
Contract Number: C-22-15-062-3-00
CFDA Number: 14.239, HOME Investment Partnership Program
DUNS Number: 161019534
Parties. In this HOME Agreement (“Agreement”), the words “we,” “us,” “our,” and “County” refer to
the County of Maricopa, an Arizona municipal corporation, and the words “you,” “your,” “Developer”
and “Madison Heights” refer to Madison Heights Phase 1, LLC, a Wisconsin limited liability company,
its members and managers, including but not limited to: Madison Heights Phase I MM, LLC, its
managing member and, Gorman Employee Group Madison Heights Phase I, LLC, its special member.
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
HOME Consortium and furthermore mutually agreed that the County will administer the contract on
behalf of the City of Avondale.
WHEREAS, Madison Heights applied to the County for HOME funds; and
WHEREAS, the County wishes to engage Madison Heights to assist us in providing affordable housing
and related services to very-low-income and low-income persons located within the City of Avondale in
the County of Maricopa, Arizona.
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 C.F.R. Part 92 and this Agreement, you agree to complete
the project described in Exhibit A: Statement of Work and all Attachments to Exhibit A (“Work”),
which outlines the tasks you will perform, requirements you 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 hold right, title, and interest in and to the parcel identified in
Exhibit B, Attachment 1 and 2 (the “Property”) by means of 99-year land lease with option to
purchase executed between Madison Heights and the Housing Authority of Maricopa County and
which will be recorded with the Maricopa County Recorder, prior to or simultaneous with the
execution of this Agreement.
As further 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 Hard Costs related to the
construction of Phase 1, a 77- unit multi-family rental housing project on the site of the existing
Madison Heights public housing project located at 1110 North Dysart Road in Avondale,
Arizona. (“Property” or “Madison Heights Project”). Phase 1 of the Madison Heights Project
shall consist of 7 buildings. There will be 6-two story residential buildings which will include
77-residential units and 1 one-story non-residential building used as a community center and
office space.
Hard Cost(s) are defined in this Agreement as labor and material costs that directly deal with
construction, reconstruction, rehabilitation or installation of improvements at the Madison
Heights Project. As a part of the Work you will designate four (4) units at the Madison Heights
Project as HOME-assisted floating units (“Home-assisted units”); the term “floating” in this
Agreement shall be defined as set forth in 24 C.F.R. § 92.252(j). You will perform the Work in
accordance with applicable regulations set forth in 24 C.F.R. Part 92.
You will furnish all labor, materials, services, supervision, tools, equipment, licenses, and permits
necessary to complete the Work known as the following:
Total
HOME
Project Name Funding
Madison Heights Apartments (Phase I) Affordable Housing Tax
Credit Project $320,000.00
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, including without limitation the following services
(collectively the "Statement of Work"):
2.1 Management and Ownership Services. All management services including, without
limitation, the services listed on Exhibit A, Attachment 1 (the "Management and Ownership
Services").
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Maricopa County HOME Agreement
2.2 Financing Services. All financing activities and services listed on Exhibit A,
Attachment 2 (the "Financing Services").
2.3 Design/Planning Services. All design/planning services listed on Exhibit A, Attachment
3 (the "Design Services").
2.4 Site Preparation Services. All demolition and site preparation services listed on Exhibit
A, Attachment 4 (the "Site Preparation Services").
2.5 Construction Services. All construction services listed on Exhibit A, Attachment 5 (the
"Construction Services").
2.6 Social Services Planning and Implementation. Madison Heights shall assist the County
with the implementation of a self-sufficiency program 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 6. (the “Social Services”).
2.7 You 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 7.
3. Term. The term of this Agreement is from May 20, 2015 through end of the Period of
Affordability (“Term”). The Period of Affordability for the Madison Heights Project funded by
this Agreement will be twenty (20) years. The Period of Affordability will begin on the date that
the last of the four (4) HOME-assisted units is initially occupied by an income eligible tenant and
will end twenty (20) years from that date (“Period of Affordability”). Throughout the Period of
Affordability, the HOME-assisted units must meet the requirements set forth in this Agreement
including, but not limited to the requirements set forth in 24 C.F.R. § 92.252.
4. Contract Amount. Subject to your compliance with this Agreement and the availability of
funds, we will provide you with a zero percent (0%) loan of HOME funds not to exceed
$320,000.00 (“Contract Amount”) for the performance and completion of the Work in accordance
with the budget outlined in Exhibit A, Attachment 9. The terms of the loan are outlined in this
Agreement and will be secured by Exhibit B: Form Declaration of Affirmative Land Use
Restrictive Covenants and Attachments 1-4. Failure to meet the obligations of this Agreement
may result in a repayment of the HOME funds granted to you. Payments of principal on the loan
may be made monthly on the first day of each month following Completion of the Project from
available Net Cash Flow, as those terms are defined in the Amended and Restated Operating
Agreement of Madison Heights Phase I, LLC. All outstanding principal shall be due and payable
to County at the end of the Period of Affordability. Notwithstanding the forgoing as long as
Madison Heights complies with the terms of this agreement during the Period of Affordability,
the loan shall be non-recourse to Madison Heights.
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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 C.F.R. Part 92 and this
Agreement.
6. Payment.
6.1 Subject to the provisions of this Agreement and the requirements of 24 C.F.R. Part 92,
we will reimburse you for your eligible costs in performing the Work. Madison Heights will
receive the Contract Amount as a reimbursement of eligible expenses under HOME program
regulations. 24 C.F.R. 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 Hard
Costs (labor and material costs that directly deal with construction, reconstruction, rehabilitation
or installation of improvements at the Madison Heights Project). Hard Costs do not include costs
associated with the acquisition, leasing, or rental of the land or buildings for the Madison Heights
Project.
6.2 Prior to the issuance of the certificate of occupancy by the County of Maricopa for the
Madison Heights Project, Madison Heights may submit claims allowed under this Agreement for
reimbursement up to ninety percent (95%) of the Contract Amount ($304,000.00).
6.3 After the issuance of the certificate of occupancy, Madison Heights may submit claims
for the remaining balance of the Contract Amount. Along with the claims for reimbursement you
will submit to the County all documents required under Exhibit C and all of the Attachments to
Exhibit C, as well as submission of the Completion Report as required under Section 9. Your
total reimbursement will not exceed those amounts shown in the budget included in Exhibit A,
Attachment 9.
6.4 You will not request the disbursement of funds until the funds are needed for payment of
eligible costs and expenses; 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 Subsection 6.2. 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 this
Subsection 6.2 of the Agreement.
6.5 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, (iii) a Project Completion Report form as outlined in this Agreement, and (iv)
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: timesheets, 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, and timeframe
determined at our reasonable discretion.
6.6 Program Income. All program income must be returned to the County. Program income
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is defined as all gross income received by the Madison Heights 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 affordable HOME assisted property
through sale or otherwise during the period of affordability, the twentieth anniversary of the date
of first occupancy of the last rented HOME assisted units. HOME Program Income must be
returned to the County within thirty (30) business days. 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 Madison Heights 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: Form Declaration of Affirmative Land Use
Restrictive Covenants and Attachments 1-4).
6.7 Matching. The funds provided under this Agreement are subject to the matching
contribution required under 24 C.F.R. § 92.218. You will provide qualified matching funds in the
amounts shown in Exhibit A, Attachment 9. Your matching funds will be in a type determined at
our sole discretion, that is acceptable under 24 C.F.R. § 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.
6.8 Availability of Funds. Our reimbursement or payment of claims 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 ten (10) calendar days in
advance
6.9 Liability. We are not liable to you for any purchases or contracts that you enter into
in anticipation of receiving payments under this Agreement.
6.10 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.
6.11 Post-Construction Cost Certification Audit. As a condition for Madison Heights
receiving low-income tax credits at the Property, the State of Arizona Housing Department must
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have a Post-Construction Cost Certification Audit (“State Audit”). Madison Heights will provide
the County with a copy of the State Audit within ten (10) calendar days of Madison Heights
receipt of the State Audit. If the results of the State Audit in any way demonstrate that Madison
Heights did not use the Contract Amount for eligible expenses in accordance with this
Agreement, specifically that Madison Heights did not use the Contract Amount for construction
labor and material costs, then Madison Heights will reimburse the County all portions of the
Contract Amount used for ineligible expenses. Any reimbursement must be paid to the County
within thirty (30) days of the County submitting a demand for payment to Madison Heights.
7. Construction Standards.
7.1 General. You will perform all construction work under this Agreement in accordance
with the building codes and ordinances adopted by Maricopa County which includes the
following as are and may be amended by the County and reflected in the Maricopa Local
Additions and Addenda as well as, the applicable building codes, regulations and ordinances of
the City of Avondale, 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
 2008, City of Avondale, General Engineering Requirements Manual, and any
codes incorporated by reference therein.
7.2 You are required to have, without limitation, specifications, drawings, and site plans
approved by the County with the exception of water and sewer connections, fire, and offsite
permits and inspections which will be performed by the City of Avondale. All multi-family,
construction permits will first require a land use approval of the site plan through the Plan of in
order to Project standards. You will also ensure that the Work complies with the standards set
forth in 24 C.F.R Part 92, including without limitation, 24 C.F.R. § 92.251 and the lead-based
paint requirements of 24 C.F.R. § 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 C.F.R. § 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 C.F.R. Part 8); (ii) the Fair Housing Act, as amended
(24 C.F.R. Part 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. You will document the initial, interim, and final building inspections. The
County will perform building inspections with the exception water and sewer connections, fire,
and offsite inspections and permits which will be performed by the City of Avondale. The
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project must meet the property standards in § 92.251, upon completion and must maintain the
housing compliance and in accordance with 24 C.F.R Part 92, including without limitation §
92.251as required by 24 C.F.R. § 92.504 during the Period of Affordability.
8. Affordability.
8.1 General. You will ensure that all housing assisted under this Agreement meets the
affordability requirements of 24 C.F.R Part 92, including without limitation, 24 C.F.R. § 92.254
or § 92.252, as applicable, that are further described in Exhibit D: Affordability Requirements.
In accordance with 24 C.F.R. § 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 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 recapture funds
will be forwarded to us in accordance with 24 C.F.R Part 92, including without limitation, 24
C.F.R. § 92.503.
9. Records and Reports.
9.1 General. Pursuant to 24 C.F.R Part 92, including without limitation, 24 C.F.R. § 92.508
and this Agreement, you will maintain all applicable records and reports related to the Work for
five (5) years after all HOME program requirements are satisfied. You will accurately maintain
and provide upon our request records demonstrating that:
a. You are and remain at all times during the Term of this Agreement the entity that holds
right, title, and leasehold interest in and to the parcel identified in Exhibit B , Attachment
1;
b. Participating residents served under this Agreement meet the income and other criteria
required by Federal law; and
c. No unlawful discrimination occurs in the solicitation or selection process of low-income
persons or groups.
9.2 Project Completion Report. Upon the completion of the construction of the entire
seventy-seven (77) units at the Madison Heights Project and the issuance of the certificate of
occupancy and initial occupancy of all four (4) floating HOME-assisted units, you will submit a
Project Completion Form (see Exhibit C, Attachment 5 and Exhibit E, Attachment 1) to the
County. You will have to provide a copy of the certificate of occupancy to the County and
demonstrate that each HOME assisted unit meets the Uniform Physical Conditions Standards at
the time of initial occupancy. In addition, throughout the affordability period meet the UPCS for
each HOME assisted unit.
9.3 Reports. You will also submit to us an annual rental compliance report (“Annual
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Report”) in accordance with Exhibit E, Attachment 2: Annual Rental Compliance Report. Your
Annual Report is due to us by the close of business on July 31st of each year throughout the
Period of Affordability. The Annual Report will be accompanied by a narrative describing the
following information as it relates to the Work performed under this Agreement: vacancy rates of
HOME-assisted units, demographic information and income determination of tenants, operating
and replacement reserve balances for the HOME-assisted units, expenditures for the HOME-
assisted units, and other applicable information as reasonably requested by us.
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 DEVELOPER that are related to this
Agreement.
b. Madison Heights shall retain all records relevant to this Agreement for 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.
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.
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 reasonable 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. 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 privileged or confidential information as set forth in federal or state law.
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11. Insurance Requirement. Madison Heights must obtain and maintain at its expense throughout
the term of the Agreement, at a minimum, the types and amounts of insurance set forth in below
from insurance companies authorized to do business in the State of Arizona; the insurance must
cover the Work to be provided by Madison Heights under the Agreement. For any insurance
required under the Agreement, Madison Heights will name the County of Maricopa, its agents,
representatives, officials, volunteers, officers, elected officials, and employees as additional
insured, as evidenced by providing either an additional insured endorsement or proper insurance
policy excerpts.
11.1 Nothing in Section 11 limits Madison Heights responsibility to the County. The
insurance requirements herein are minimum requirements for the Agreement and in no way limit
the indemnity promise(s) contained in the Agreement.
11.2 The County does not warrant the minimum limits contained herein are sufficient to
protect Madison Heights and subcontractor(s) from liabilities that might arise out of performance
under the Agreement by Madison Heights, its agents, representatives, employees, or
subcontractor(s). Madison Heights is encouraged to purchase additional insurance as Madison
Heights determines may be necessary.
11.3 Each insurance policy required under the Agreement must be in effect at or prior to the
execution of the Agreement and remain in effect for the term of the Agreement.
11.4 Prior to the execution of the Agreement, MADISON HEIGHTS will provide the County
with a Certificate of Insurance in a form acceptable by the County (using an appropriate
“ACORD” or equivalent certificate) signed by the issuer with applicable endorsements. The
County reserves the right to request additional copies of any or all of the policies, endorsements,
or notices relating thereto required under the Agreement.
11.5 When the County requires a Certificate of Insurance to be furnished, MADISON
HEIGHTS's insurance is primary of all other sources available. When the County is a certificate
holder and/or an additional insured, MADISON HEIGHTS agrees no policy will expire, be
canceled, or be materially changed to affect the coverage available without advance written notice
to the County.
11.6 The policies required by the Agreement must contain a waiver of transfer rights of
recovery (waiver of subrogation) against the County, its agents, representatives, officials,
volunteers, officers, elected officials, and employees for any claims arising out of the work of
MADISON HEIGHTS.
11.7 All insurance certificates and applicable endorsements are subject to review and approval
by the County's Risk Management Division.
11.8 You at your own expense shall purchase and maintain the herein stipulated minimum
insurance from a company or companies duly licensed by the State of Arizona and
possessing a current A.M. Best, Inc. rating of B++. In lieu of State of Arizona licensing, the
stipulated insurance m a y be purchased from a company or companies, which are authorized
to do business in the State of Arizona, provided that said insurance companies meet the
approval of County. The form of any insurance policies and forms must be acceptable to
County.
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a. All insurance required herein shall be maintained in full force and effect until all work or
service required to be performed under the terms of the Contract is satisfactorily completed
and formally accepted. Failure to do so may, at the sole discretion of County, constitute a
material breach of this Contract.
b. Your insurance shall be primary insurance as respects County, and any insurance or self-
insurance maintained by County shall not contribute to it.
c. Any failure to comply with the claim reporting provisions of the insurance policies or any
breach of an insurance policy warranty shall not affect the County’s right to coverage
afforded under the insurance policies.
d. The insurance policies may provide coverage that contains deductibles or self-insured
retentions. Such deductible and/or self-insured retentions shall not be applicable with
respect to the coverage provided to County under such policies. You shall be solely
responsible for the deductible and/or self-insured retention and County, at its option, may
require you to secure payment of such deductibles or self-insured retentions by a surety
bond or an irrevocable and unconditional letter of credit.
e. The County reserves the right to request and to receive, within ten (10) working days,
certified copies of any or all of the herein required insurance policies and/or endorsements
and any amendments thereto. The County shall not be obligated, however, to review such
policies and/or endorsements or to advise the you of any deficiencies in such policies and
endorsements, and such receipt shall not relieve you from, or be deemed a waiver of
Maricopa County’s right to insist on strict fulfillment of your obligations under this
Agreement.
f. The insurance policies required by this Agreement, except Workers’ Compensation, shall
name County, its agents, representatives, officers, directors, officials, and employees as
Additional Insured’s.
g. The policies required hereunder, except Workers’ Compensation, shall contain a waiver of
transfer of rights of recovery (subrogation) against, Maricopa County, its agents,
representatives, officers, directors, officials, and employees for any claims arising out of
your work or service.
h. You are required to procure and maintain the following coverage’s:
1. Commercial General Liability. Commercial General Liability insurance and,
when necessary, Commercial Umbrella insurance with a limit of not less than $2,000,000
for each occurrence, $4,000,000 Personal/Advertising Injury, $4,000,000
Products/Completed Operations Aggregate, and $4,000,000 General Aggregate Limit. The
policy shall include coverage for bodily injury, broad form property damage, and blanket
contractual coverage, and shall not contain any provision that would serve to limit third
party action over claims. There shall be no endorsement or modification of the CGL
limiting the scope of coverage for liability arising from explosion, collapse, or underground
property damage.
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2. Automobile Liability. Commercial/Business Automobile Liability insurance and,
if necessary, Commercial Umbrella insurance with a combined single limit for bodily
injury and property damage of not less than $2,000,000 each occurrence with respect to any
of Madison Height’s owned, hired, and non-owned vehicles assigned to or used in
performance of your work or services under this Agreement.
3. Workers’ Compensation. Workers’ Compensation insurance to cover obligations
imposed by federal and state statutes having jurisdiction of your employees engaged in the
performance of the work or services under this Contract; and Employer’s Liability
insurance of not less than $1,000,000 for each accident, $1,000,000 disease for each
employee, and $1,000,000 disease policy limit. You waive all rights against County and its
agents, officers, directors and employees for recovery of damages to the extent these
damages are covered by the Workers’ Compensation and Employer’s Liability or
commercial umbrella liability insurance obtained by you pursuant to this agreement
4. Builder’s Risk (Property) Insurance. You shall purchase and maintain, on a
replacement cost basis, Builders’ Risk insurance and, if necessary, Commercial Umbrella
insurance in the amount of the initial Agreement amount as well as subsequent
modifications thereto for the entire work at the site. Such Builders’ Risk insurance shall be
maintained until final payment has been made or until no person or entity other than
County has an insurable interest in the property required to be covered, whichever is earlier.
This insurance shall include interests of County, you and all of your subcontractors and
sub‐subcontractors in the work during the life of the Agreement and course of construction,
and shall continue until the work is completed and accepted by County. For new
construction projects, you agree to assume full responsibility for loss or damage to the work
being performed and to the structures under construction. For renovation construction
projects, you agree to assume responsibility for loss or damage to the work being
performed at least up to the full Agreement amount, unless otherwise required by the
Agreement documents or amendments thereto.
I. Builders’ Risk insurance shall be on a special form and shall also cover false work
and temporary buildings and shall insure against risk of direct physical loss or
damage from external causes including
II. debris removal, demolition occasioned by enforcement of any applicable legal
requirements, and shall cover reasonable compensation for architect’s service and
expenses required as a result of such insured loss and other “soft costs” as required
by the Agreement.
III. Builders’ Risk insurance must provide coverage from the time any covered
property comes under your control and/or responsibility, and continue without
interruption during construction, renovation, or installation, including any time
during which the covered property is being transported to the construction
installation site, and while on the construction or installation site awaiting
installation. The policy will provide coverage while the covered premises or any
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part thereof are occupied. Builders’ Risk insurance shall be primary and any
insurance or self‐insurance maintained by the County is not contributory.
IV. If the Agreement requires testing of equipment or other similar operations, at the
option of County, you will be responsible for providing property insurance for
these exposures under a Boiler Machinery insurance policy or the Builders’ Risk
Insurance policy.
i. Coverages
Commercial General
Liability(Each Occurrence) $2,000,000
Personal & Advertising Injury $4,000,000
General Aggregate $4,000,000
Products/Completed Operations $4,000,000
Automotive Liability, (Each Occurrence) $2,000,000
Workers’ Compensation(Each Accident) $1,000,000
Disease for Each Employee $1,000,000
Disease Policy Limit $1,000,000
Builders’ Risk Replacement Cost
12. Bonding
12.1 Within ten (10) calendar days of being notified of the award, you shall furnish a
Performance Bond and a Payment Bond containing all the provisions of the Performance Bond
and Payment Bond attached hereto. All bonds regardless of form, will be on the form required
and set forth in A.R.S. § 34-222(I).
a. Each Bond shall be in the amount of one hundred percent (100%) of the GMP
guaranteeing to County the completion and performance of the Work covered in such
Contract as well as full payment concerning all suppliers, material providers, laborers, or
subcontractors employed pursuant to this Project. Each Bond shall be with a surety
company which is qualified pursuant to Article 14.2.
b. Each Bond shall continue in effect for one year after substantial completion and
acceptance of the Work with liability equal to one hundred percent (100%) of the
Contract sum, or an additional bond shall be conditioned that Madison Heights will, upon
notification by County, correct any defective or faulty Work or materials which appear
within one year after substantial completion of the Contract.
c. Alternate form of Security: You must identify either the securities in lieu of retention
option or retention option prior to first Application for Payment. You are required to
request this option at least ten (10) business days prior to submission of first Application
for Payment to allow time for preparation of forms. You shall request and obtain
securities forms through County.
d. Qualifications of Surety:
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1. Each bond must be executed by a surety company in recognized standing,
authorized to do business in the State of Arizona as surety, having a resident agent in the
State of Arizona and having been in business with a record of successful continuous
operation for at least five years.
2. The Surety Company shall hold a current certificate of authority as acceptable
surety on federal bonds in accordance with United States Department of Treasury
Circular 570, Current Revisions. If the amount of the Bond exceeds the underwriting
limitation set forth in the circular, in order to qualify, the net retention of the surety
company shall not exceed the underwriting limitation in the circular, and the excess risks
must be protected by coinsurance, reinsurance, or other methods in accordance with
Treasury Circular 297, revised September 1, 1973 (31 DFR Section 223.10, Section
223.111). Further, the Surety Company shall provide County with evidence satisfactory
to us, that such excess risk has been protected against in an acceptable manner.
3. The County will accept a surety bond from a company with a rating of B+ or
better for bonds up to $2 million, provided, however, that if any surety company appears
on the watch list that is published quarterly by Intercom of the Office of the Arizona
Insurance Commissioner, the County shall review and either accept or reject the surety
company based on the financial information available to the COUNTY. A surety
company that is rejected by the County may be substituted by the bidder or proposer with
a surety company acceptable to the County, only if the bid amount does not increase.
The ratings of Surety shall correspond to the amount of bonds as follows:
Policy
Holder’s Financial Size
Amount of Bond Ratings Category
500,001 to 1,000,000 B+ Class I
1,000,001 to 2,000,000 B+ Class II
2,000,001 to 5,000,000 A Class III
5,000,001 to 10,000,000 A Class IV
10,000,001 to 25,000,000 A Class V
25,000,001 to 50,000,000 A Class VI
50,000,001 or More A Class VII
13. Indemnification.
13.1 General. To the fullest extent permitted by law, and except for the willful misconduct of
County, You shall defend, hold harmless and indemnify County and all of its officers,
employees, agents, and volunteers from and against any and all damages, claims, losses,
liabilities, actions or expenses (including, but not limited to attorneys’ fees, expert witness fees,
court costs, and attorneys’ fees and costs of appellate proceedings) (collectively “Claims”)
relating to, arising out of or alleged to have resulted from this Agreement. Your duty to defend,
hold harmless and indemnify County pursuant to this section shall arise in connection with any
claim, damage, loss or expense that is attributable or alleged to be attributable to bodily injury,
sickness, disease, including death, or to injury to, impairment, or destruction of property,
including but not limited to personal property belonging to you and your employees, arising from
or related to this Agreement, including claims resulting in whole or in part from the acts, errors,
mistakes, omissions, work or services of you or anyone for whose acts you may be legally liable.
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The amount and type of insurance coverage requirements set forth herein will in no way be
construed as limiting the scope of the indemnity in this paragraph. The scope of this
indemnification does not extend to the sole negligence of County. You will be responsible for
primary loss investigation and defense and judgment costs where this Indemnification applies.
13.2 Your obligations under this section shall survive the expiration or earlier termination of
this Agreement. The amount and type of insurance coverage requirements set forth herein will in
no way be construed as limiting the scope of the indemnity in this paragraph.
13.3 Your indemnification of us outlined in Subsection 13.1 above includes when an audit or
review by an agency of the federal, state, or local government results in the determination that we
must reimburse HUD for funds awarded to you under this Agreement due to your failure to
comply with this Agreement or any applicable law or regulation, including, but not limited to, if
any housing supported by the Work does not meet the affordability requirements for the Period of
Affordability as described in this Agreement. You agree that, should we be required to reimburse
HUD funds provided to you under this Agreement because of your failure to comply with this
Agreement or applicable law or regulation, you will refund us for any monies we must pay to
HUD, including applicable penalty fees. You will reimburse us within thirty (30) days of receipt
of written notice from us.
14. 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, 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 OMB Circular A-87, A-133,
and A-122, as applicable, and 24 CFR Parts 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. You shall take corrective
actions within six (6) months of the date of receipt of the reports. The Department shall consider
sanctions as described in OMB Circular A-133 if you do not comply with the audit requirements.
15. Audit Disallowances.
15.1 Madison Heights 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 attorney’s fees the County spends to
pursue legal action relating to a disallowance. Court costs and attorney’s fees incurred will be
specifically identified as applicable to the recovery of the disallowed costs in question.
15.2 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
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by Madison Heights by the amount of the disallowance or to require immediate repayment of the
disallowed amount by Madison Heights issuing a check payable to the County.
16. Suspension and Termination
16.1 Termination for Convenience. Except as provided in 24 C.F.R. § 85.43, either party
may terminate this agreement for convenience at any time, as set forth at 24 C.F.R. § 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.
16.2 Termination or Suspension for cause. In accordance with 24 C.F.R. § 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
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k. Conducting business in an unethical or 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 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 Madison
Heights’ 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.
16.3 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. All awards of funding shall be immediately revoked, and any approvals related to the
project described in the Special Provision or Work Statement shall be deemed revoked
and canceled. Thereby, any entitlements to compensation after suspension or termination
of this Agreement are similarly revoked and unavailable.
b. Not be relieved of any 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 Madison Heights 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.
17. Arizona Law.
17.1 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.
17.2 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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18. 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.
19. 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.
20. 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 ten (10) 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.
21. Religious Organizations/Activities. You may use HOME funds as described in 24 C.F.R. §
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, 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, construction or rehabilitation that are
attributable to eligible activities in accordance with the cost accounting requirements applicable
to HOME funds in 24 C.F.R. Part 92.
22. 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 or agents for any purpose,
including the payment of unemployment or workers’ compensation.
23. 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 18, 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 C.F.R. Part 92 as applicable to the Work and this
Agreement including specifically, but not limited to, those set forth in 24 C.F.R. Part 92 Subpart
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G and Subpart H.
24. Marketing and Outreach. If the Work contains five (5) or more 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 C.F.R. § 92.351.
25. General Federal Requirements. All federal requirements in 24 C.F.R. Part 5, Subpart A and the
nondiscrimination requirements of Section 282 of the HOME Investment Partnership Act as set
forth in 24 C.F.R. § 92.350.
26. 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
C.F.R. Part 24 and 24 C.F.R. § 92.353.
27. Labor Requirements. All labor requirements set forth in 24 C.F.R. § 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 C.F.R. Part 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.
28. OMB Circulars and 24 C.F.R. Part 84 and 2 CFR 200. The requirements of OMB Circulars
applicable to for-profit agencies receiving HOME funding and the following requirements of 2
CFR 200 and 24 C.F.R. Part 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, Washington, DC 20503; telephone (202) 395-7332; and
http://www.whitehouse.gov/omb/circulars_default.)
29. 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 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: Certifications.
30. Immigration Reform & Control Act of 1986. 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
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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.
31. 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 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.).
32. 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: Certifications.
33. 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.
34. 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.
35. 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
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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.
36. Madison Heights 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 its Subcontractors are not relieved of its obligation to possess the
required licenses by a subcontracting of the labor portion of the Contract.
37. CLEAN AIR ACT If the total face value of this Agreement exceeds $100,000, the 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.
38. 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.
38.1 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
C.F.R. § 92.352, or responsibilities for initiating the intergovernmental review process of
Executive Order 12372 as described at 24 C.F.R. § 92.357.
38.2 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.
39. Low-Income Housing Tax Credit (“LIHTC”). The parties acknowledge that the Federal
LIHTC program and the HOME program are both providing funding for the construction of the
Madison Heights Project. As both programs have separate guidelines, if the guidelines of the
programs conflict, but do not prevent co-existence of the guidelines on the Madison Heights
Project, then the most restrictive guidelines will control the operation and use of the four (4)
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HOME-assisted units. Madison Heights will notify the County of any requirements of LIHTC
that conflict with the requirements of this Agreement; the parties agree to take reasonable steps to
remedy such conflicts if possible and necessary.
40. Project Requirements. You agree that you will comply with the project requirements in 24
C.F.R. Part 92 Subpart F, as applicable, in performing the Work under this Agreement.
41. Relationship. This Agreement does not create a joint venture, legal partnership or any other
cooperative or joint arrangement between you and us.
42. 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.
43. 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. 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.
44. 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
45. 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 both 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 on the HOME Amendment Request Form attached to
this Agreement as Exhibit A, Attachment 11.
46. 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 C.F.R. § 92.252 or §
92.254 will be enforced by deed restrictions the form of which is attached as Exhibit B:
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Declaration of Affirmative Land Use Restrictive Covenants. You agree and acknowledge that
the County reserves the right to amend the form document (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.
47. Acknowledgements and Use of Name. You will acknowledge the contribution of the County of
Maricopa HOME Program in all related publications during the Term of this Agreement; you will
not use our name in any other manner without our prior written consent. You are not permitted to
use the County of Maricopa logo in any publications, marketing, or any other type of media
without prior written authorization from us.
48. Certifications. You will comply with all certification requirements as described and executed in
Exhibit G: Certifications.
49. 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:
Community Development Assistant Director
234 N. Central Ave., Third Floor,
Phoenix, AZ 85004
Attention: Amy Jacobson
Phone Number: 608-506-1528
Notices that we send to you will be addressed to:
Madison Heights Phase I, LLC
200 N. Main Street
Oregon, WI 53575
Attention: Gary J. Gorman
Fax Number: 608-835-3210
Phone Number: 608-835-3922
With copies sent to:
BCP/Madison Heights Phase I, LLC
c/o Boston Capital Partners, Inc.
One Boston Place
Boston, MA 02108
and
AHP Housing Fund 106, LLC
c/o Affordable Housing Partners, Inc.
1999 Avenue of the Stars, Suite 3425
Los Angeles, California 90067
Attention: Michael L. Fowler
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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.
50. 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. Gorman General Contractors, LLC (the “GC”) and any
subcontractors engaged by the GC are hereby approved by County as authorized subcontractors
under this Agreement.
51. 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.
52. 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.
53. 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.
54. 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.
55. Security Clearance and Removal of Employees. We have 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.
56. 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.
57. 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.
58. 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
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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 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.
59. 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.
60. 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.
61. 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.
62. Grant Administration. In accordance with federal regulations, including 24 C.F.R. Part 92, we
are responsible for ensuring the administration of HOME Program funds in accordance with all
program requirements.
63. Agreement Administration. The Agreement will be administered by our Assistant Director
Community Development and his/her authorized representative(s); refer all questions regarding
the Agreement to that person.
64. Management Contingency. You will notify us of any significant program or staffing changes,
which could materially affect this Agreement or the Work.
65. 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. 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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66. 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.
67. 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.
68. 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.
69. 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.
70. 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.
71. 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 otherwise required
or obligated to cease performance by other provisions in this Agreement.
72. 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 C.F.R. § 85.36, 24 C.F.R. 84.42, 24 C.F.R. § 92.356, and HOMEfires Volume 2, Number 2.
73. 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.
74. 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, 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.
75. Definitions. All terms not otherwise defined in this Agreement have the meanings given to them
in 24 C.F.R. Part 92.
76. 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.
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77. Headings. All headings used in this Agreement are only for reference purposes and do not affect
the interpretation of the Agreement.
78. Lobbying. No federal appropriated funds have been paid or will be paid by or on behalf of the
DEVELOPER 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 DEVELOPER
shall complete and submit OMB Form-LLL, titled "Disclosure of Lobbying Activities," in
accordance with its instructions and 31 U.S.C. § 1352.
79. Political Activities Prohibited. None of the funds, materials, property or services contributed by
the COUNTY or the DEVELOPER under this Agreement shall be used for any partisan political
activity, or to further the election or defeat of any candidate for public office.
80. 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.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.)
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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.
Madison Heights Phase I, LLC,
a Wisconsin limited liability company
By: Madison Heights Phase I MM , LLC
Its: Member
By: Gorman Employee Group
Madison Heights Phase I, LLC
Its: Manager
By: Gorman & Company, Inc.
Its: Manager
(Described as “you” or “MADISON HEIGHTS”
throughout the Agreement)
By: ______________________________________
Gary J. Gorman, President
Address: 200 N. Main Street
Oregon, WI 53575
Maricopa County
(Described as “we” or “County” throughout the
Agreement)
By:______________________________________
Steve Chucri, Chairman Date
Attested By:
_______________________________________
Clerk of the Board Date
Approved as to form:
By: _____________________________________
Deputy County Attorney Date
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