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WHEN RECORDED, RETURN TO:
City of Glendale
City Clerk
5850 West Glendale Avenue
Glendale, Arizona 85301
DEVELOPER AGREEMENT FOR MULTI-FAMILY RENTAL DEVELOPMENT UNDER THE
HOME INVESTMENT PARTNERSHIPS PROGRAM AND THE COMMUNITY DEVELOPMENT
BLOCK GRANT PROGRAM
FY 2022-23
This Developer Agreement for the multi-family rental development project known as
(“Project”) under the Home Investment Partnerships Program and the Community Development
Block Grant Program(“Agreement”) is entered into this
day of ______________, 2023 by and
between the City of Glendale, an Arizona municipal corporation (“City”), and Glendale Leased Housing
Associates I, LLLP, a Minnesota Limited Liability Limited Partnership (“Developer”).
RECITALS
WHEREAS, the City has applied for and received federal funds pursuant to the HOME Investment
Partnerships Act at title II of the Cranston-Gonzalez National Affordable Housing Act, as amended, 42
U.S.C. 12701, et seq. (“HOME Program”) to assist low-income persons and families in obtaining decent and
affordable rental housing opportunities;
WHEREAS, the Maricopa County HOME Consortium administers the HOME Program in Maricopa
County, Arizona;
WHEREAS, the City has received an allocation of $764,833 of FY 2022-23 HOME funds from the
Maricopa County HOME Consortium from a direct entitlement made by the U.S. Department of Housing
and Urban Development (“HUD”);
WHEREAS, City has entered into a grant agreement with the United States Department of Housing and
Urban Development (“HUD”) for financial assistance to conduct the Community Development Block Grant
(“CDBG”) pursuant to the Housing and Community Development Act of 1974, as amended, and 24 C.F.R.
Part 570, and the Rules and Regulations of HUD governing the conduct of CDBG programs, found at Title
24 of the Code of Federal Regulations (“CFR”), as amended, (the “Rules and Regulations”);
WHEREAS, the City has received an allocation of $2,368,223 of FY 2022-23 CDBG funds from by the U.S.
Department of Housing and Urban Development (“HUD”);
WHEREAS, Glendale Leased Housing Associates I, LLLP, is a for-profit limited liability limited partnership
that has applied for HOME and CDBG Program funds from the City to be used by Developer to assist the
City to assist low-income persons and families in obtaining decent and affordable housing opportunities;
WHEREAS, the City believes that the activities of the Developer described in the Project comply with the
requirements of the HOME and CDBG Program regulations;
WHEREAS, it is necessary that the City and Developer enter into an Agreement for the implementation of
eligible activities; and
WHEREAS, the City desires to enter into this Agreement and provide Developer with $235,167.00 in
CDBG and $264,833.00 in HOME Program funds for a combined value of $500,000.00 in federal HUD
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funds (collectively known “Program Funds”) to reimburse Developer for the costs of purchasing the land
upon which the Project is to be constructed.
The Parties enter into the following agreement:
AGREEMENT
1
HOME Written Agreement. Pursuant to 24 CFR § 92.504, the City and Developer enter into this
HOME Written Agreement to secure HOME and CDBG Program funds in the development of the
Project, an affordable multi-family rental development in the City of Glendale.
2
Consistency with Home Investment Partnerships Program Requirements. As CDBG
Program regulations at 24 C.F.R. 570 do not address ongoing affordability, tenant selection criteria,
lease terms and other requirements related to development of new rental units, the City and
Developer agree to adhere to requirements stipulated in the Home Investment Partnerships Program
regulations at 24 CFR 92, as further notated in this Agreement unless otherwise indicated.
3
Agreement Amount. The City shall provide financial assistance in an amount not to exceed
$235,167.00 in CDBG funds and $264,833.00 in HOME funds for a combined total of
$500,000.00 in Program Funds subject to the terms of this Agreement and subject to the availability
of federal funds. Providing this Agreement amount constitutes the City's entire participation and
obligation in the performance and completion of all work to be performed under this Agreement.
4
Matching Contribution. The City currently holds sufficient matching funds from other sources
and will not require Developer to contribute matching funds through this Agreement.
5
Use of funds. Developer, in close coordination with the City, will perform all professional, technical
and construction services necessary to provide new construction of multi-family rental units as
detailed in Exhibit A.
6
Affordability. The Project is subject to ongoing compliance requirements of the HOME Program
for the length of the affordability period identified in 24 C.F.R. § 92.252. The affordability period
begins once the Maricopa County HOME Consortium records the close of the Project in the
Integrated Disbursement Information System (“IDIS”), a nationwide database providing HUD with
current information regarding the HOME Program activities underway across the nation, including
funding data. To document initial and ongoing unit affordability, Developer shall create and submit
an Affordability Compliance Management Plan to the City for approval thirty days prior to the initial
rent-up of HOME-assisted units. This Plan must provide procedures as to how Developer will
comply with the provisions in this Section 5 of the Agreement.
6.1
Rent limitations. Pursuant to 24 CFR 92.252 (a), initial rents of HOME-assisted units shall
not exceed the HOME High Rents provided by HUD and in effect at the time of initial
occupancy and each year thereafter. The value of these rents accommodates the cost of
utilities. Developer shall provide the City will a list of utilities provided at the project site, as
well as the provider of those services. The City will determine the Utility Allowance Schedule
prior to initial occupancy, and annually thereafter during the period of affordability.
6.2
Initial rent schedule and utility allowances. The City will provide Developer with the
HOME rent schedule and approved Utility allowance schedule prior to initial marketing of
HOME-assisted units, and annually thereafter during the period of affordability as revised by
HUD.
6.3
Period of Affordability. Developer agrees that assisted units remain affordable and subject
to the affordability requirements of 24 CFR 92.252 (e) and contained in this Agreement.
The City and Developer agree that the period of affordability applicable to these assisted
units is 20 years from the date established in the first paragraph of this Section 5.
6.4
Subsequent Rents During Period of Affordability. City and Developer agree that
HOME rents established at the time of initial occupancy represent a floor in the rent that
can be charged during the period of affordability established herein despite adjustments to
Fair Market Rents and median household incomes made by HUD. The City will provide
Developer with updated HOME rents within 30 days of their availability and publication by
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HUD. Developer will provide City with documentation of rents and occupancy on an
annual basis in compliance with ongoing affordability requirements. Developer agrees that
changes in HOME rents will not affect existing leases in effect at the time of publication of
new HOME rents, and will provide tenants written notice of rent increases no later than 30
days before the expiration of existing leases.
6.5
Adjustment of HOME rent. If, during the period of affordability, Developer’s analysis of
the project’s financial viability is in jeopardy due to HUD’s changes in Fair Market Rents or
median household income, Developer will notify the City within 30 days to determine if an
appeal to HUD is justified and necessary. If, in the sole discretion of the City, that such an
appeal is justified and necessary, Developer will cooperate with the City to provide all
necessary documentation and rationale as the basis of the appeal. The City will facilitate the
appeal process on behalf of Developer.
6.6
Tenant Income. In order for the Project to be eligible for HOME Program assistance,
tenants occupying HOME-assisted units must have a gross annual household income that
does not exceed 60% percent of area median income (“AMI”), adjusted for household size.
Verification of household income must be conducted by Developer in accordance with 24
C.F.R. § 92.203.
6.7
Over-income Tenants. If, during the annual requalification process stipulated in 24 C.F.R.
§ 92.203 a tenant is determined to be over income, the Developer will designate the next
available comparable unit as a floating HOME-assisted unit and apply all HOME regulatory
requirements and those of this Agreement to that unit. The parties acknowledge that the
Federal Low-Income Housing Tax Credit ("LIHTC") program and the HOME program are
both providing funding for the construction of the 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 Project, then the most restrictive guidelines will control the operation and
use of the three (3) HOME-assisted units. Developer will notify the City 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.
6.8
Fixed and Floating Units. Developer and City agree that assisted units will be floating.
Developer will determine and verify income eligibility of tenants for the assisted units, and
will constitute one (1) one-bedroom unit, one (1) two-bedroom unit, and one (1) three-
bedroom unit for a total of three assisted units. Units must be comparable in square
footage, amenities and number of bedrooms to non-assisted units. This comparability of
units will apply to all subsequent tenants after initial occupancy to maintain unit conformity
through the period of affordability.
6.9
Tenant Selection. Developer shall adopt, adhere to and submit to the City for review and
approval written tenant selection policies and procedures that comply with the requirements
of 24 CFR 92.253 (d), including: 1. limitation of tenancy to those households at or below
60% of area median income, as established and revised annually by HUD; 2. basis for
selection related to the prospective tenant’s reasonable ability to fulfill the terms of the lease
agreement; 3. description of eligibility or preference criteria for certain population segments
(as applicable) that is in full compliance with the non-discrimination requirements
established in 24 CFR 92.350; 4. acceptance of Section 8 or HOME Tenant-Based Rental
Assistance recipients as potential tenants; 5. Provision of a wait-list based on the
chronological order of receipt of applications; and 6. Prompt written notification for
rejection of a tenant’s application and the reason(s) for the rejection.
6.10
Lease Requirements
6.10.1 Developer and Tenant must enter into a written lease agreement of not less than
one year unless a shorter period is mutually agreed upon and specified in the lease.
6.10.2 Developer agrees that all lease agreements shall not contain any of the prohibited
terms of 24 CFR 92.253 (b), as provided in Exhibit G of this Agreement.
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7
Maximum Per Unit Subsidy. Developer will ensure that total Program Funds invested in the
project will not exceed the per-unit dollar limitations established under section 221(d) (3) (ii) of the
National Housing Act (12 U.S.C. 17151 (d) (3) (ii)).
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Property Standards During Development. Developer will ensure that all units constructed will
meet the property standards set forth in 24 CFR 92.251 at the time of project completion and
throughout the period of affordability as provided for in Section 5.3 contained herein.
8.1
Developer covenants that upon completion of construction the Project will comply with all
applicable State and local codes and ordinances.
8.2
Developer covenants that upon completion of construction, the Project will comply with
Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) as promulgated by 24 CFR 8,
Titles II and III of the Americans with Disabilities Act (42 U.S.C. 12131-12189) as
promulgated by 28 CFR 35 and 36, and the Fair Housing Act (42 U.S.C. 3601-3619) as
promulgated by 24 CFR 100.201 and 205.
8.3
Developer will provide all documentation to City upon request in compliance of this section,
including, but not limited to: construction cost estimates, contracts, inspection records and
financial records.
9
Ongoing Property Standards
9.1
Developer shall ensure that the assisted units continue to remain safe, decent and sanitary
throughout the period of affordability. At a minimum, assisted units must comply with
HUD Housing Quality Standards (HQS) applicable to the Section 8 Housing Choice
Voucher Program.
9.2
The City will inspect, using HUD-prescribed instruments, each assisted unit, at least once
annually to document compliance with these property standards.
9.3
The City will provide ample notice to Developer to facilitate the inspection of each assisted
unit.
9.4
In the event of non-compliance, the City will provide written notification of the violation to
the Developer, and provide for a 30-day cure period, at which time, the Developer will
notify the City of completion of repairs, and schedule a reinspection.
9.5
Violations that, in the City’s sole discretion, constitute an immediate threat to the health or
safety of occupants, shall allow the City to require a shorter cure period.
9.6
Deficient units shall be re-inspected as many times as is necessary to ensure that all identified
violations have been corrected to the standards required in 24 CFR 92.251 (f).
10
Conditions of Religious Organizations.
10.1
Organizations that are religious or faith-based are eligible, on the same basis as any other
organization, to participate in the HOME Program. Neither the federal government nor a
state or local government receiving funds under the HOME Program will discriminate
against an organization on the basis of the organization’s religious character or affiliation.
10.2
Organizations that are directly funded under the HOME Program may not engage in
inherently religious activities, such as worship, religious instruction, or proselytization, as
part of the assistance funded under this section.
10.3
If an organization conducts such activities, the activities must be offered separately, in time
or location, from the assistance funded under this part, and participation must be voluntary
for the beneficiaries of the assistance provided.
10.4
The completed Project must be used exclusively by the owner entity for secular purposes,
available to all persons regardless of religion. In particular, there must be no religious or
membership criteria for tenants of the Property.
10.5
An organization that participates in the HOME Program will not, in providing HOME
Program assistance, discriminate against a Program beneficiary or prospective Program
beneficiary on the basis of religion, religious belief or lack thereof.
10.6
The City will assure that any use of Program Funds by a religious organization, when
commingled with funds of the religious organization, meet the requirements of 24 C.F.R. §
92.257.
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11
Non-Discrimination. In the selection of Tenants, Developer will comply with all non-
discrimination requirements of 24 C.F.R. § 92.350. Developer agrees to post notices containing this
policy against discrimination in conspicuous places available to applicants for employment and
employees. All solicitations or advertisements for employees, placed by or on the behalf of
Developer, will state that all qualified applicants will receive consideration for employment without
regard to race, color, religion, disability, sex, national origin, financial status, age, sexual orientation,
gender identity, or marital status.
12
Nondiscrimination and Equal Employment Opportunity.
12.1
Developer will not discriminate against any employee or applicant for employment because
of race, color, religion, sex, disability, national origin, financial status, age, sexual orientation,
gender identity, or marital status. Such action will include, but not be limited to, the
following: employment, upgrading, demotion, or transfer, recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms of compensation; and selection
for training, including apprenticeship. Developer agrees to post in conspicuous places,
available to employees and applicants for employment, notices to be provided by the City’s
Representative setting forth the provisions of this nondiscrimination clause.
12.2
Developer will, in all solicitations or advertisements for employees placed by or on behalf of
Developer, state that all qualified applicants will receive consideration for employment
without regard to race, color, religion, sex, disability, national origin, financial status, age,
sexual orientation, gender identity, or marital status.
12.3
Developer will send to each labor union or representative of workers with which he has a
collective bargaining agreement or other contract or understanding, a notice to be provided
by the City's Representative, advising the labor union or worker's representative of
Developer's commitments under Executive Order No. 11246 of September 24, 1965, and
will post copies of the notice in conspicuous places available to employees and applicants for
employment.
12.4
Developer will comply with all provisions of Executive Order 11246 of September 24, 1965,
and of the rules, regulations, and relevant orders of the Secretary of Labor.
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Intentionally Omitted.
14
Debarment and Suspension. As required by 24 C.F.R. Part 24.1, federal funds will not be used
directly or indirectly to employ, award contracts to, or otherwise engage the services of, or fund any
contractor, subcontractor, developer, business, consultant or any entity during any period of
debarment, suspension, or placement in ineligibility status, including the beneficiary of HOME and
CDBG Program investment.
15
Drug Free Workplace. Developer agrees to make diligent efforts to comply with 24 C.F.R. Part 24,
Subpart F, as described in Attachment J of this Agreement.
16
Affirmative Marketing & Minority Outreach. Developer must adopt affirmative marketing
procedures and requirements for HOME Program-assisted housing containing five (5) or more
housing units. “Affirmative marketing procedures” will consist of actions to provide information and
otherwise attract eligible persons from all racial, ethnic, and gender groups in the housing market area
to the available housing and will comply with the requirements and procedures of 24 C.F.R. § 92.351.
17
Environmental Review. No Program Funds may be encumbered until the City has completed an
Environment Review pursuant to the provisions of the National Environmental Policy Act of 1969
(“NEPA”) and the related authorities listed in HUD’s implementing regulations at 24 C.F.R. § 50.1,
et seq. and 24 C.R.F. § 58.1, et seq. Until the Environment Review is complete, and a Release of Funds
obtained from HUD, Developer will not undertake or commit any Program Funds to physical or
choice-limiting actions, including property acquisition, demolition, movement, rehabilitation,
conversion, repair or construction prior to environmental clearance. The results of the
Environmental Review may result in a decision to proceed with, modify or cancel the Project.
18
Displacement, Relocation, and Acquisition.
18.1
Developer must ensure that it has taken all reasonable steps to minimize the displacement of
persons (families, individuals, businesses, nonprofit organizations, and farms) as a result of
the Project.
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18.2
Developer will consult the City prior to proceeding with any Project activity with Program
Funds that may cause temporary or permanent displacement of the beneficiary of HOME
Program investment. Such consultation shall assure compliance with appropriate relocation
requirements of 24 C.F.R. § 92.353 in accordance with the requirements of the Uniform
Relocation Assistance and Real Property Acquisition Policies Act of 1970 (“URA”) (42
U.S.C. §§ 4201-4655) and implementing regulations at 49 C.F.R. Part 24, as amended and the
Fair Housing Act (42 U.S.C. §§ 3601-19).
18.3
The Project is subject to the requirements of the Housing and Community Development
Act of 1974, and implementing regulation at 24 C.F.R. § 570. This includes the section 104
(d) requirements to provide relocation assistance and replace low- and moderate-income
housing as described at 24 C.F.R. § 570.606(c).
18.4
The acquisition of the site is subject to the URA and the requirements of 49 C.F.R. Part
24.1, et seq.
19
Labor Requirements.
19.1
Federal regulation 24 C.F.R. § 92.354 requires that any contract for the construction
(rehabilitation or new construction) of affordable housing with 12 or more units assisted
with funds made available under the HOME Program must contain a provision requiring
that the wages prevailing in the locality, as predetermined by the Secretary of Labor pursuant
to the Davis-Bacon Act (40 U.S.C. §§ 276a-5), will be paid to all laborers and mechanics
employed in the development of affordable housing involved. Such agreements must also
be subject to the overtime provisions, as applicable, to the Work Hours and Safety Standards
Act (40 U.S.C. §§ 327-332).
19.2
Developer will comply with regulations issued under Federal Laws and Regulations
pertaining to labor standards and HUD handbook 1344.1 (Federal Labor Standards
Compliance in Housing and Community Development Programs), as applicable.
19.3
Developer will furnish all information and reports required by Executive Order 11246 of
September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or
pursuant thereto, and will permit access to its books, records, and accounts by the City and
the Secretary of Labor for purposes of investigation to ascertain compliance with such rules,
regulations, and order
20
Labor, Training & Business Opportunity (Section 3)
20.1
It is agreed that performance under this Agreement is on a Project assisted under a program
providing direct federal financial assistance from HUD and is subject to the requirements of
Section 3 of the Housing and Urban Development Act of 1968, as amended (12 U.S.C. §
1701u), as well as any and all applicable amendments thereto. Section 3 requires that, to the
greatest extent feasible, opportunities for training and employment be provided to low and
moderate income residents of the Project area, and that contracts, to the greatest extent
feasible, for work in connection with the Project be awarded to business concerns which are
located in, or owned in substantial part by persons residing in the Project area.
20.2
Developer will comply with the regulations issued pursuant thereto by HUD as set forth in
Title 24 of the Code of Federal Regulations and all applicable rules and orders of HUD
issued there under as well as any and all applicable amendments thereto prior to the
execution of this Agreement as well as during the term of this Agreement. Developer
certifies and agrees that it is under no contractual or other disability, which would prevent it
from complying with these requirements as well as any and all applicable amendments
thereto.
20.3
In construction contracts of $100,000 or more, Developer will include a clause that in every
subcontract performing work in connection with the Project and will, at the direction of the
City, take appropriate action under 24 C.F.R. Part 135. Developer will not subcontract with
any subcontractor where it has notice or knowledge that the latter has been found in
violation of regulations under Title 24 of the Code of Federal Regulations and will not enter
into any subcontract unless the subcontractor has first provided it with a preliminary
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statement of ability to comply with these requirements as well as with any and all applicable
amendments thereto.
20.4
Compliance with the provisions of Section 3, the regulations set forth in Title 24 of the
Code of Federal Regulations and all applicable rules and orders of HUD issued thereunder is
a condition precedent to federal financial assistance being provided to and continuing to be
provided to the Developer. Such compliance will be binding upon the applicant or recipient
for such assistance, its successors, and assigns. Failure to fulfill these requirements will
subject Developer or recipient, its contractors and subcontractors, its successors, and assigns
to those sanctions specified by Title 24 of the Code of Federal Regulations, as amended, and
may be cause to terminate this Agreement.
21
Conflict.
21.1
Developer acknowledges this Agreement is subject to A.R.S. § 38-511, which allows for
cancellation of this Agreement in the event any person who is significantly involved in
initiating, negotiating, securing, drafting, or creating the Agreement on City's behalf is also an
employee, agent, or consultant of any other party to this Agreement.
21.2
Developer agrees to abide by the provisions of 24 C.F.R. § 92.356 with respect to conflicts
of interest, and covenants that no person who exercises or have exercised any functions or
responsibilities with respect to activities assisted with Program Funds or who are in a
position to participate in a decision making process or gain any inside information with
regard to these activities, may obtain a financial interest or benefit from the Project, or have
an interest in any contract, subcontract or agreement with respect thereto, or proceeds
derived from the Project, either for themselves or those with whom they have family or
business ties, during their tenure or for one year thereafter.
21.3
Developer covenants that no person on its Board of Directors or any member of its staff
has an identity of interest with any person or entities that might benefit directly or indirectly
financially from this Agreement.
21.4
Developer further covenants that in the performance of this Agreement no person, having
such a financial interest and/or influence with regard to the Project, will be employed or
retained by Developer.
21.5
No owner, developer or sponsor of a project assisted with Program Funds (or officer,
employee, agent or consultant of the owner, developer or sponsor) whether private, for
profit or nonprofit (when acting as an owner, developer or sponsor) may occupy a HOME
Program-assisted affordable housing unit in the Project. This provision does not apply to an
individual who receives Program Funds to acquire or rehabilitate his or her principle
residence or to an employee or agent of the owner or developer of a rental housing project
who occupies a housing unit as the Project manager or maintenance worker.
21.6
If such conflict as outlined above does exist, Developer is bound to disclose officially in
writing, on Developer’s letterhead, the nature and extent of that conflict prior to execution
of this Agreement, or if discovered subsequently, to disclose such conflict as soon as it
occurs or is known.
21.7
Exceptions to above requirements are allowed under certain circumstances in accordance
with 24 C.F.R. §§ 92.356(d), (e) and (f)(2). Requests for exceptions must be made to the City
who, after determination as to whether an exception request is warranted, will render a
decision and/or seek the approval of HUD to render a decision.
22
Records and Reports.
22.1
The City reserves the right to inspect, monitor, and observe work and services performed by
Developer at any and all reasonable times.
22.2
The City reserves the right to audit the records of Developer any time during the
performance of this Agreement and for a period of six (6) years after the period of
affordability has been satisfied under this Agreement.
22.3
Developer will provide the City with a copy of their single audit and management letter
pursuant to the requirements of 2 CFR 200 annually, but no later than 30 days after
completion of single audit.
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22.4
Access will be immediately granted to the City, HUD, the Comptroller General of the
United States, or any of their duly authorized representatives to any books, documents,
papers, and records of Developer or its contractors which are directly pertinent to that
specific contract for the purpose of making audit, examination, excerpts, and transcriptions.
23
Enforcement of the Agreement.
23.1
The City will enforce this Agreement in accordance with 24 C.F.R. § 85.43, by suspension or
termination of the Agreement should Developer fail to comply with any term of the
Agreement, or for convenience in accordance with 24 C.F.R. § 85.44.
23.2
Developer acknowledges and agrees that it will be subject to sanctions set forth in HOME
Program Regulation 24 C.F.R. Part 92, if determined to be applicable by the City.
23.3
The parties hereto agree that this Agreement will be construed and enforced according to
the laws of the State of Arizona and all applicable federal laws and regulations.
23.4
The City will secure its interest in this Agreement as required by the HOME Program with a
Deed of Trust (Exhibit H), a Promissory Note (Exhibit I) and a Declaration of Covenants,
Conditions, and Restrictions recorded separately and concurrently with this Agreement.
24
Disbursement of Funds
24.1
Project expenses will be paid based on invoices for actual expenses paid. All such expenses
will be in conformance to the approved Project Budget. Developer or its contractor
(pursuant to the construction contract) will be responsible for any cost overruns.
24.2
Developer covenants that all expenditures will comply with 2 CFR 200, and will be
allowable, allocable and reasonable. The City reserves the right to inspect records and
Project sites to determine that reimbursement and compensation requests meet the terms of
2 CFR 200. The City also reserves the right to hold payment until adequate documentation
has been provided and reviewed.
24.3
The Program Funds designated for the Project pursuant to this Agreement shall be
deposited into escrow at or before closing on the Project, and will be released at closing to
reimburse Developer for the costs of purchasing the land upon which the Project is to be
constructed.
24.4
Developer will be monitored by the City for compliance with the regulations of 24 C.F.R. §
92.252(a) (4) for the affordability period specified herein. Developer will provide reports
and access to Project files as requested by the City during the construction of the Project and
for six (6) years after completion and closeout of the Agreement or during the affordability
period, whichever is longer.
25
Duration of the Agreement. This Agreement shall be effective for 24 months commencing on the
date of this Agreement and expiring on DATE unless sooner terminated pursuant to the provisions
contained herein.
26
Procurement Standards.
26.1
Developer will comply with local procurement requirements as listed in the Additional
Requirements as further described in Exhibit L.
26.2
Developer will establish procurement procedures to ensure that materials and services are
obtained in a cost-effective manner. When procuring services to be provided under this
Agreement, Developer will comply, at a minimum, with the nonprofit procurement
standards at 24 C.F.R. §§ 84.40-48.
26.3
Any Developer that can be considered to be a religious organization will abide by all
portions of 24 C.F.R. § 92.257.
27
Uniform Administrative Requirements. To the extent applicable to a nongovernmental recipient
of federal funds, Developer will comply with 2 CFR 200, as amended, the Davis-Bacon Act (40
U.S.C. 276a et seq.), as amended, and as supplemented by Department of Labor regulations (29 C.F.R.
Part 5, as amended), the Copeland Anti-Kickback Act (18 U.S.C. 874), as amended, and as
supplemented by Department of Labor regulations (29 C.F.R. Part 3, as amended), the Agreement
Work Hours and Safety Standards Act (40 U.S.C. 327 et seq.), as amended, and as supplemented by
Department of Labor regulations (29 C.F.R. Part 5, as amended); Executive Order 11246 (Equal
Opportunity), as amended, and as supplemented by Department of Labor regulations (41 C.F.R.,
9
chapter 60, as amended); and the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 (42 U.S.C. 4601 et seq., as amended and Section 104(d) of the Act), and in
accordance with 24 C.F.R. Part 42, as amended.
28
Immigration Law Compliance.
28.1
Contractor, and on behalf any subcontractor, warrants, to the extent applicable under A.R.S.
§ 41-4401, compliance with all federal immigration laws and regulations that relate to their
employees as well as compliance with A.R.S. § 23-214(A) which requires registration and
participation with the E-Verify Program.
28.2
Any breach of warranty under subsection 18.1 above is considered a material breach of this
Agreement and is subject to penalties up to and including termination of this Agreement.
28.3
City retains the legal right to inspect the papers of any Contractor or subcontractor
employee who performs work under this Agreement to ensure that the Contractor or any
subcontractor is compliant with the warranty under subsection 18.1 above.
28.4
City may conduct random inspections, and upon request of City, Contractor will provide
copies of papers and records of Contractor demonstrating continued compliance with the
warranty under subsection 18.1 above. Contractor agrees to keep papers and records
available for inspection by the City during normal business hours and will cooperate with
City in exercise of its statutory duties and not deny access to its business premises or
applicable papers or records for the purposes of enforcement of this section.
28.5
Contractor agrees to incorporate into any subcontracts under this Agreement the same
obligations imposed upon Contractor and expressly accrue those obligations directly to the
benefit of the City. Contractor also agrees to require any subcontractor to incorporate into
each of its own subcontracts under this Agreement the same obligations above and expressly
accrue those obligations to the benefit of the City.
28.6
Contractor’s warranty and obligations under this section to the City is continuing throughout
the term of this Agreement or until such time as the City determines, in its sole discretion,
that Arizona law has been modified in that compliance with this section is no longer a
requirement.
28.7
The “E-Verify Program” above means the employment verification program administered
by the United States Department of Homeland Security, the Social Security Administration,
or any successor programs.
29
Insurance.
29.1
Developer must obtain, maintain and provide evidence of the following insurance
("Required Insurance") consistent with Exhibit M, Insurance Certificate.
29.2
Developer and Sub-contractors. Developer, and each Sub-contractor performing work or
providing materials related to this Agreement must procure and maintain the insurance
coverages described below (collectively “Contractor's Policies"), until each Parties'
obligations under this Agreement are completed
29.3
Developer must at all times relevant hereto carry a commercial general liability policy with a
combined single limit of at least $1,000,000 per occurrence and $2,000,000 annual aggregate.
29.4
Sub-contractors must at all times relevant hereto carry a general commercial liability policy
with a combined single limit of at least $1,000,000 per occurrence.
29.5
This commercial general liability insurance must include independent contractors' liability,
contractual liability, broad form property coverage, products and completed operations,
XCU hazards if requested by the City, and a separation of insurance provision.
29.6
These limits may be met through a combination of primary and excess liability coverage.
29.7
Auto. A business auto policy providing a liability limit of at least $1,000,000 per accident for
Developer and $1,000,000 per accident for Sub-contractors and covering owned, non-owned
and hired automobiles.
29.8
Workers' Compensation and Employer's Liability. A workers' compensation and employer's
liability policy providing at least the minimum benefits is required by Arizona law.
29.9
Equipment Insurance. Developer must secure, pay for, and maintain all-risk insurance as
necessary to protect the City against loss of owned, non-owned, rented or leased capital
10
equipment and tools, equipment and scaffolding, staging, towers and forms owned or rented
by Developer or its Sub-contractors.
29.10
Notice of Changes. Developer's Policies must provide for not less than 30 days' advance
written notice to City Representative of:
29.11
Cancellation or termination of Developer or Sub-Contractor’s Policies;
29.12
Reduction of the coverage limits of any of Developer or and Sub-Contractor’s Policies; and
29.13
Any other material modification of Developer or Sub-Contractor’s Policies related to this
Agreement.
Certificates of Insurance.
29.14
Within 10 business days after the execution of the Agreement, Developer must deliver to
City Representative certificates of insurance for each of Developer and Sub-Contractor’s
Policies, which will confirm the existence or issuance of Contractor and Sub-Contractor’s
Policies in accordance with the provisions of this section, and copies of the endorsements of
Developer and Sub-contractor's Policies in accordance with the provisions of this section.
29.15
City is and will be under no obligation either to ascertain or confirm the existence or
issuance of Developer and Sub-Contractor’s Policies, or to examine Developer and Sub-
Contractor’s Policies, or to inform Contractor or Sub-contractor in the event that any
coverage does not comply with the requirements of this section.
29.16
Developer's failure to secure and maintain Developer Policies and to assure Sub-Contractor
Policies as required will constitute a material default under this Agreement.
29.17
Other Contractors or Vendors.
29.18
Other contractors or vendors that may be contracted by Developer with in connection with
the Project must procure and maintain insurance coverage as is appropriate to their
particular agreement.
29.19
This insurance coverage must comply with the requirements set forth above for Contractor's
Policies (e.g., the requirements pertaining to endorsements to name the parties as additional
insured parties and certificates of insurance).
29.20
Policies. Except with respect to workers' compensation and employer's liability coverages,
the City must be named and properly endorsed as additional insureds on all liability policies
required by this section.
29.21
The coverage extended to additional insureds must be primary and must not contribute with
any insurance or self-insurance policies or programs maintained by the additional insureds.
29.22
All insurance policies obtained pursuant to this section must be with companies legally
authorized to do business in the State of Arizona and acceptable to all parties.
29.23
Developer must also cause its Sub-contractors to obtain and maintain the Required
Insurance.
29.24
City may consider waiving these insurance requirements for a specific Sub-contractor if City
is satisfied the amounts required are not commercially available to the Sub-contractor and
the insurance the Sub-contractor does have is appropriate for the Sub-contractor's work
under this Agreement.
29.25
Developer and Sub-contractors must provide to the City proof of Required Insurance
whenever requested.
30
Bonds. Upon execution of this Agreement, and if applicable, Developer must furnish payment and
performance bonds as required under A.R.S. § 34-608 and 24 C.F.R. Part 85.36(h).
31
Compliance with Federal, State & Local Laws. Developer covenants and warrants that it will
comply with all applicable laws, ordinances, codes, rules and regulations of the state local and federal
governments, and all amendments thereto, including, but not limited to; Title 8 of the Civil Rights
Act of 1968 PL.90-284; Executive Order 11063 on Equal Opportunity and Housing Section 3 of the
Housing and Urban Development Act of 1968; Housing and Community Development Act of
1974, and all requirements of the HOME Program as set forth in 24 C.F.R. Part 92.
32
Suspension & Termination.
11
32.1
In accordance with 24 C.F.R. § 85.43, suspension or termination may occur if Developer
materially fails to comply with any term of the award, and that the award may be terminated
for convenience in accordance with 24 C.F.R. § 85.44.
32.2
If Developer is unable to meet the approved timelines as required by HOME Program
regulations or complete the Project because of delays resulting from Acts of God, untimely
review and approval by the City and other governmental authorities having jurisdiction over
the Project, or other delays that are not caused solely by Developer, the City will grant a
reasonable extension of time for completion of the Project. It will be the responsibility of
Developer to notify the City promptly in writing whenever a material delay in the
construction schedule is anticipated or experienced, and to inform the City of all facts and
details related to such delay. Developer will also inform the City when it expects the delay to
end and when it expects the Project to be complete.
32.3
If Developer fails in any manner to fully perform and carry out any of the terms, covenants,
and conditions of the Agreement, or if Developer refuses or fails to proceed with the Project
with such diligence as will ensure its completion within the time fixed by HOME Program
regulations, Developer will be in default and notice in writing will be given to Developer’s
Representative of such default by the City or an agent of the City. If Developer fails to cure
such default within such time as may be required by such notice, the City may at its option
terminate and cancel the Agreement at the expiration of the cure period.
32.4
In the event of such termination, all funds awarded to Developer pursuant to this
Agreement will be immediately revoked and any approvals related to the Program funds will
immediately be deemed revoked and canceled. In such event, Developer will no longer be
entitled to receive any compensation for work undertaken after the date of the termination
of this Agreement, as the grant funds will no longer be available for this Project.
32.5
In the event of such termination, Developer will be entitled to receive just and equitable
compensation for any work satisfactorily completed hereunder prior to the date of said
termination.
32.6
Notwithstanding the above, Developer will not be relieved of liability to the City for
damages sustained by the City by virtue of any breach of the Agreement by the Developer.
The City may withhold any payments to the Developer for the purpose of setoff against
such damages until such time as the exact amount of damages due the City from Developer
is determined whether by court of competent jurisdiction or otherwise.
32.7
The waiver or failure to enforce a breach of any term, covenant or condition hereof will not
operate as a waiver of any subsequent breach of the same or any other term, covenant, or
condition hereof.
32.8
Notwithstanding anything to the contrary contained herein, the City shall provide the Tax
Credit Investor notice of any default under this Agreement and the Tax Credit Investor shall
be provided 30 days to cure such default (or such longer period as is reasonably necessary to
cure such default). The City shall accept such cure by the Tax Credit Investor as if such cure
was made by the Developer.
33
Default-Loss of HOME Program Funds.
33.1
In the event of such termination, all HOME Program funds awarded to Developer pursuant
to this Agreement will be immediately revoked and any approvals related to the Project will
immediately be deemed revoked and canceled. In such event, Developer will no longer be
entitled to receive any compensation for work undertaken after the date of the termination
of this Agreement, as the HOME Program funds will no longer be available for this Project.
33.2
Such termination will not affect or terminate any of the rights of the City as against
Developer then existing, or which may thereafter accrue because of such default, and the
foregoing provision will be in addition to all other rights and remedies available to the City
under the law and the Note and Deed of Trust (if in effect), including but not limited to
compelling Developer to complete the Project in accordance with the terms of this
Agreement, in a court of equity.
12
33.3
The waiver of a breach of any term, covenant or condition hereof will not operate as a
waiver of any subsequent breach of the same or any other term, covenant, or condition
hereof.
34
Indemnification Agreement. Developer will, during the term of this Agreement, indemnify, hold,
protect, and save harmless the City and any and all of its officers, elected officials, agents, and
employees from and against any all actions, audits, proceedings, claims and demands, loss, liens,
costs, expenses and liability of any kind and nature whatsoever, for injury to or death of persons, or
damage to property, including property owned by the City brought, made, filed against, imposed
upon or sustained by the City, its officers, agents, or employees in and arising from attributable to or
caused directly or indirectly by the negligence, wrongful acts, omissions or from operations
conducted by the Developer, its officers, agents or employees, or by any person acting on behalf of
Developer and with Developer’s knowledge and consent, expressed or implied.
35
Prohibited Lobbying Activities. Developer, his/her agent or representative will not have any
lobbying contact, as defined by the Lobbying Disclosure Act (2 U.S.C. 1602), orally or in any written
form with any City elected official or any City employee other than the Planning and Community
Development Department, City Manager, Deputy or Assistant City Manager or City Attorney’s office
(for legal issues only) regarding the contents of this Agreement.
36
Prohibited Political Contribution. Developer, during the term of this Agreement, will not make a
contribution reportable under Title 16, Chapter 6, Article 1, Arizona Revised Statutes to a candidate
or candidate committee for any City elective office during the term of this Agreement. The City
reserves the right to terminate the Agreement without penalty for any violation of this provision.
37
Contingent Fees. Developer promises that it has not employed or retained any company or person,
other than bona fide employees working solely for Developer, to solicit or secure this Agreement,
and that it has not paid or agreed to pay any company or person, other than bona fide employees
working solely for Developer, any fee, commission, percentage, brokerage fee, gifts or any other
consideration contingent upon or resulting from the award or making of this Agreement. For breach
of this promise, the City may cancel this Agreement without liability or, at its discretion, deduct the
full amount of the fee, commission, percentage, brokerage fee, gift or contingent fee from the
compensation due Developer.
38
Successors and Assigns. This Agreement is binding on the City and Developer, and its successors
and assigns. Neither the City nor Developer will assign or transfer its interest in this Agreement
without the written consent of the other.
39
Representatives.
Developer. Developer's representative ("Developer's Representative") authorized to act on
Developer's behalf with respect to the Project, and his or her address for Notice delivery is:
Glendale Leased Housing Associates I, LLLP
5030 Nesbit Ferry Lane
Sandy Springs, GA 30350
Attention: David Searles
Phone: 678-570-1177
Email: davidsearles@crt-trust.com
With a copy to:
Glendale Leased Housing Associates I, LLC
9000 E Pima Center Parkway, Suite 350
Scottsdale, AZ 85258
Attention: Owen Metz
With a copy to Developer's Investor Member:
13
INVESTOR CONTACT
And to:
Winthrop & Weinstine, P.A.
225 South 6th Street, Suite 3500
Attention: John Nolde, Esq.
City. City's representative ("City's Representative") authorized to act on City's behalf, and his or her
address for Notice delivery is:
City of Glendale
Community Revitalization Division
Attn: Revitalization Administrator
5850 W Glendale Ave., Suite 170
Glendale, Arizona 85301
With required copies to:
City of Glendale
City of Glendale
City Manager
City Attorney
5850 West Glendale Avenue
5850 West Glendale Avenue
Glendale, Arizona 85301
Glendale, Arizona 85301
Concurrent Notices. All notices to City's Representative must be given concurrently to City Manager
and City Attorney.
A notice will not be considered to have been received by City's Representative until the time that it
has also been received by the City Manager and City Attorney.
City may appoint one or more designees for the purpose of receiving notice by delivery of a written
notice to Contractor identifying the designee(s) and their respective addresses for notices.
Changes. Developer or City may change its representative or information on Notice, by giving
Notice of the change in accordance with this section at least ten days prior to the change.
40
Other Provisions.
40.1
Developer is responsible for all applicable state and federal social security benefits and
unemployment taxes and agrees to indemnify and protect the City against such liability.
40.2
Developer will maintain a procurement code of conduct for its organization, and ensure
compliance by all employees.
40.3
Material alterations to the Project and Budget must be mutually agreed upon by the City and
Developer, and will be incorporated into this Agreement by written amendments signed by
both parties.
40.4
This Agreement represents the entire agreement between the parties and supersedes all prior
representations, negotiations or agreements whether written or oral.
40.5
Title and paragraph headings are for convenient reference and are not a part of this
Agreement.
40.6
In the event of conflict between the terms of this Agreement and any terms or conditions
contained in any attached documents, the terms in this Agreement will rule.
40.7
No waiver or breach of any provision of this Agreement will constitute a waiver of a
subsequent breach of the same or any other provision hereof, and no waiver will be effective
unless made in writing.
40.8
Should any provisions, paragraphs, sentences, words or phrases contained in this Agreement
be determined by a court of competent jurisdiction to be invalid, illegal or otherwise
unenforceable under the laws of the State of Arizona, such provisions, paragraphs,
14
sentences, words or phrases will be deemed modified to the extent necessary in order to
conform with such laws, or if not modifiable to conform with such laws, then same will be
deemed severable, and in either event, the remaining terms and provisions of this Agreement
will remain unmodified and in full force and effect.
40.9
Developer and its employees and agents will be deemed to be independent contractors, and
not agents or employees of the City, and will not attain any rights or benefits under the civil
service or pension ordinances of the City, or any rights generally afforded classified or
unclassified employee; further they will not be deemed entitled to state compensation
benefits as an employee of the City.
40.10
Funding for this Agreement is contingent on the availability of funds and continued
authorization for the Project and is subject to amendment or termination due to lack of
funds, or authorization, reduction of funds, and/or change in regulations.
41
Exhibits. The following exhibits, with reference to the term in which they are first referenced, are
incorporated by this reference.
Exhibit A
Project Scope
Exhibit B
Legal Description
Exhibit C
Project Schedule
Exhibit D
Project Budget
Exhibit E
Match Letter
Exhibit F
Memorandum of Agreement
Exhibit G
Prohibited Lease Provisions
Exhibit H
Developer Deed of Trust and Assignment of Rents
Exhibit I
Developer Promissory Note
Exhibit J
Certifications
Exhibit K
Federal Laws and Regulations
Exhibit L
Additional Requirements
Exhibit M
Insurance
(Signatures Appear on the Next Page)
15
IN WITNESS WHEREOF, all parties concerned acknowledge that they have read, understand, approve, and
accept all of the provisions of this Agreement.
CITY OF GLENDALE, an Arizona
municipal corporation
___________________________________
Kevin R. Phelps
City Manager
ATTEST:
______________________________
Julie K. Bower
City Clerk
(SEAL)
APPROVED AS TO FORM:
______________________________
Michael D. Bailey
City Attorney
16
Glendale Leased Housing Associates I, LLLP
a Minnesota limited liability limited partnership
By: Langston Hughes Glendale Family, LLC,
a Georgia limited liability company
Its: General Partner
By: Langston Hughes Affordable Housing, Inc., a Georgia
501(c)(3) nonprofit corporation
Its: Manager
_______________________________
By: David Sewall Searles, Jr, President
Its: President
STATE OF ARIZONA
)
) ss.
County of Maricopa
)
This Developer Agreement is subscribed and sworn to before me this _____ day of
_________________, 2023, by David Sewall Searles, Jr, President of Langston Hughes Affordable Housing,
Inc., a Georgia 501(c)(3) nonprofit corporation, the general partner of Glendale Leased Housing Associates I,
LLLP, who signed the above document.
____________________________________
Notary Public
My Commission Expires:
_____________________
1
EXHIBIT A
PROJECT DESCRIPTION
1.
Purpose. The City has awarded Developer HOME Program funds to pay for partial construction
costs associated with the development of 67 Flats, a 384-unit affordable multi-family rental project.
2.
Location. The Project site is 6504 N 67th Avenue in the City of Glendale, AZ 85301, as defined in
Exhibit B.
3.
Schedule. Project activities will include, but are not limited to: site acquisition; completion of all pre-
development activities (environmental review, release of funds, funding commitments, design review,
building permits, etc.); construction mobilization, construction, marketing and occupancy of 384 units.
Project construction completion expected by December 31, 2025, and 100% occupancy achieved by
March 31, 2026, as defined in Exhibit C.
4.
Funding. The City is providing $500,000.00 of the total budget. Developer is obtaining remainder of
Project funds from equity funding made available through an allocation of Low Income Housing Tax
Credits, private permanent financing and gap financing from the State of Arizona. The total budget
for the Project is $180,000,000. The budget and Project expenses are defined in Exhibit D.
1
EXHIBIT B
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF MARICOPA,
STATE OF ARIZONA, AND IS DESCRIBED AS FOLLOWS:
INSERT LEGAL DESCRIPTION (PENDING FINAL PLAT APPROVAL)
APN: XXX-XX-XXXX
2
EXHIBIT C
PROJECT SCHEDULE
Project Milestone
Estimated Completion Date
Completion of Environmental Review
DATE
Design review and building permit
DATE
Receipt of Release of Funds from HUD
DATE
Acquisition of property & commitment of funding
DATE
Notice to Proceed
DATE
Construction mobilization
DATE
25% completion
DATE
50% completion
DATE
75% completion
DATE
100% completion
DATE
25% occupancy (including HOME-assisted units)
DATE
50% occupancy
DATE
100% occupancy
DATE
Project Completion & Closeout
DATE
3
EXHIBIT D
PROGRAM BUDGET
SOURCES
TOTAL PROJECT FUNDING FY
2022-23
City of Glendale HOME Program Funding - Loan
$
INSERT LENDER – permanent lender
$
Arizona Dept. of Housing Gap Financing
$
LIHTC Equity
$
Deferred Developer Fee
$
Total
$
1
EXHIBIT E
PROHIBITED LEASE PROVISIONS
Pursuant to 24 CFR 92.253 (b), the following terms are prohibited from inclusion in leases of HOME-assisted units for
the period of affordability agreed upon herein.
1.
Agreement to be Sued. Tenant shall not be required to agree to be sued, admit guilt or consent to judgement in
favor of the landlord in legal proceedings brought forth in connection with the lease agreement.
2. Treatment of Property. Landlord shall not take, hold, or sell tenant’s personal property without notice and a
court decision on the rights of the respective parties.
3. Excusing Owner from Responsibility. Tenant shall not be required to hold landlord or landlord’s agents
harmless in any action or failure to act, whether unintentional or negligent.
4. Waiver of Notice. Tenant shall not be required to waive notification of a lawsuit instituted by landlord.
5. Waiver of Legal Proceedings. Tenant shall not be required to waive a court proceeding in an eviction process.
6. Waiver of Jury Trial. Tenant shall not be required to waive any right to a trial jury.
7. Waiver of Right to Appeal Court Decisions. Tenant shall not be required to waive their rights to appeal a court
decision associated with the lease.
8. Tenant’s Payment of Legal Fees. Tenant shall not be required to pay any legal costs of landlord associated with
a court proceeding.
9. Mandatory Supportive Services. Tenant shall not be required to accept supportive services in connection with
their occupancy of the HOME-assisted unit.
Developer acknowledges and agrees that inclusion of any of these provisions in a HOME-assisted lease agreement,
regardless of intent, is unenforceable.
Signature
Date
2
EXHIBIT F
WHEN RECORDED, RETURN TO:
City of Glendale
City Clerk
5850 West Glendale Avenue
Glendale, Arizona 85301
DEED OF TRUST AND ASSIGNMENT OF RENTS
DATE:
DATE
TRUSTOR:
DEVELOPER
(ADDRESS):
BENEFICIARY:
City of Glendale
(ADDRESS):
5850 West Glendale Avenue
Glendale, Arizona 85301
TRUSTEE:
TITLE COMPANY
(ADDRESS):
SUBJECT REAL PROPERTY in Maricopa County, State of Arizona, described in the Legal Description
attached as Exhibit A (“Property”).
This Deed of Trust and Assignment of Rents (“Deed of Trust”) is made between the Trustor, Trustee and
Beneficiary above named.
WITNESSETH: That Trustor irrevocably grants and conveys to Trustee in Trust, with Power of Sale, the
above described real property, together with: (1) all buildings, improvements and fixtures now or hereafter
placed thereon; (2) all existing leases, and all future leases executed with respect to such property; (3) all rents,
issues, profits and income thereof (all of which are hereinafter called "property income"); (4) all classes of
property now, or at any time hereafter, attached to or used in any way in connection with the use, operation
3
or occupancy of such property; (5) all property, rights, permits and privileges now or hereafter owned by
Trustor or now or hereafter appurtenant to such property, which entitle Trustor or such property to receive
water or electrical power for use thereon; all property granted, transferred and assigned to Trustee hereunder
is hereafter referred to as the "Property," and Trustor warrants that it is well and truly seized of a good and
marketable title in fee simple to the real property hereby conveyed; that the title to all property conveyed by
this Deed of Trust is clear, free and unencumbered, and Trustor will forever warrant and defend the same
unto Beneficiary, its successors and assigns, against all claims whatsoever;
SUBJECT, HOWEVER, to the right, power, and authority hereinafter given to and conferred upon
Beneficiary to collect and apply such Property Income;
AND SUBJECT TO, any easements and restrictions listed in a schedule of exceptions to coverage in any title
insurance polity insuring Beneficiary's interest in the Property.
1.
For the Purpose of Securing:
1.1
Performance of each agreement of Trustor herein contained.
1.2
Payment of the indebtedness evidenced by promissory note or notes of even date herewith,
and any extension or renewal thereof, in the principal sum of Five Hundred Thousand
Dollars ($500,000.00) executed by Trustor in favor of Beneficiary or order.
1.3
Payment of additional sums and interest thereon which may hereafter be loaned to Trustor,
or his successors or assigns, when evidenced by a promissory note or notes that are secured
by this Deed of Trust.
2.
To Protect the Security of this Deed of Trust, Trustor covenants and agrees:
2.1
To keep the Property in good condition and repair; not to remove or demolish any building
thereon; to complete or restore promptly and in good and workmanlike manner any building
which may be constructed, damaged, or destroyed thereon, and to pay when due all claims
for labor performed and materials furnished therefore; to comply with all laws affecting said
property or requiring any alterations or improvements to be made thereon; not to commit or
permit waste thereof; not to commit, suffer, or permit any act upon said Property in
violation of law; and to do all other acts which from the character or use of the Property
may be reasonably necessary, the specific enumerations herein not excluding the general.
2.2
To keep all improvements now or hereafter erected on said property continuously insured
against loss by fire or other hazards specified by Beneficiary in an amount not less than the
total obligation secured hereby. All policies will be held by Beneficiary and be in such
companies as Beneficiary may approve and have loss payable first to Beneficiary, as his
interest may appear and then to Trustor. The amount collected under any insurance policy
may be applied upon any indebtedness hereby secured and in such order as Beneficiary may
determine or at option of Beneficiary the entire amount so collected or any part thereof may
be released to Trustor. Such application or release will not cure or waive any default
hereunder nor cause discontinuance of any action that may have been or may thereafter be
taken by Beneficiary or Trustee because of such default.
2.3
To appear in and defend any action or proceeding purporting to affect the security hereof or
the rights or powers of Beneficiary or Trustee; and to pay all costs and expenses of
Beneficiary or Trustee, including cost of evidence of title and attorneys’ fees in a reasonable
sum, in any such action or proceeding in which Beneficiary or Trustee may appear or be
named, and in any suit brought by Beneficiary to enforce this Deed of Trust.
2.4
To pay before delinquent, all taxes and assessments affecting said Property; when due, all
encumbrances, charges and liens, on said Property or any part thereof, which appear to be
prior or superior hereto; all costs, fees, and expenses of this Trust, including, without
limiting the generality of the foregoing, the fees of Trustee for issuance of any Deed of
4
Partial Release and Partial Reconveyance or Deed of Release and Full Reconveyance and all
lawful charges, costs, and expenses in the event of reinstatement of, following default in, this
Deed of Trust or the obligations secured hereby.
2.5
The should Trustor fail to make any payment or to do any act as herein provided, then
Beneficiary or Trustee, but without obligation so to do and without notice to or demand
upon Trustor and without releasing Trustor from any obligation hereof, may: Make or do
the same in such manner and to such extent as either may deem necessary to protect the
security hereof, Beneficiary or Trustee being authorized to enter upon said Property for such
purposes; appear in and defend any action or proceeding purporting to affect the security
hereof or the rights or powers of Beneficiary or Trustee; pay, purchase, contest or
compromise any encumbrance, charge, or lien which in the judgment of either appears to be
prior or superior hereto; and, in exercising any such powers, pay necessary expenses, employ
counsel, and pay his reasonable attorneys’ fees. All amounts so paid, together with interest
thereon at the same rate as is provided for in the note secured by this Deed of Trust or at
the highest legal rate, whichever is greater, will be part of the debt secured by this Developer
Deed of Trust and a lien on the above Property.
2.6
To pay immediately and without demand all sums expended by Beneficiary or Trustee
pursuant to the provisions hereof, together with interest from date of expenditure at the
same rate as is provided for in the note secured by this Deed of Trust or at the highest legal
rate, whichever is greater. Any amounts so paid by Beneficiary or Trustee will become part
of the debt secured by this Deed of Trust and a lien on the Property and immediately due
and payable at option of Beneficiary or Trustee.
3.
It is Mutually Agreed:
3.1
That any award of damages in connection with any condemnation or any taking, or for
injury to the Property by reason of public use, or for damages for private trespass or injury
thereto, is assigned and will be paid to Beneficiary as further security for all obligations
secured hereby (reserving unto Trustor, however, the right to sue therefore and the
ownership thereof, subject to this Developer Deed of Trust), and upon receipt of such
moneys Beneficiary may hold the same as such further security, or apply or release the same
in the same manner and with the same effect as above provided for disposition of proceeds
of fire or other insurance.
3.2
That by accepting payment of any sum secured hereby after its due date, Beneficiary does
not waive his right either to require prompt payment when due of all other sums so secured
or to declare default for failure so to pay. Without affecting the obligation of Trustor to pay
and perform as herein required; without affecting the personal liability of any person for
payment of the indebtedness secured hereby; and without affecting the lien or priority of lien
hereof on the Property, Beneficiary may, at its option, extend the time for payment of said
indebtedness, or any part thereof, reduce the payment thereon, release any person liable on
any of said indebtedness, accept a renewal note therefore, modify the terms of said
indebtedness, take or release other or additional security, or join in any extension or
subordination agreement. Any such action by Beneficiary or the Trustee at Beneficiary's
direction may be taken without the consent of any junior lienholder, and will not affect the
priority of this Deed of Trust over any junior lien. Time is of the essence for this Deed of
Trust.
3.3
That at any time or from time to time, and without notice, upon written request of
Beneficiary and presentation of this Deed of Trust and said note(s) for endorsement, and
without liability therefore, and without affecting the personal liability of any person for
payment of the indebtedness secured hereby, and without affecting the security hereof for
the full amount secured hereby on all Property remaining subject hereto, and without the
5
necessity that any sum representing the value or any portion thereof of the Property affected
by the Trustee's action be credited on the indebtedness, the Trustee may: (a) release and
reconvey all or any part of said Property; (b) consent to the making and recording, or either,
of any map or plat of the Property or any part thereof; (c) join in granting any easement
thereon; (d) join in or consent to any extension agreement of any agreement subordinating
the lien, encumbrance or charge hereof. Any Trustor signing this Trust as a surety or
accommodation party or that has subjected the Property to this Trust to secure the debt of
another, expressly waives the benefits of A.R.S. § 12-1641.
3.4
That upon written request of Beneficiary stating that all sums secured hereby have been paid,
and upon surrender of this Deed of Trust and said note(s) to Trustee for cancellation and
retention, and upon payment of its fees, Trustee will release and reconvey, without covenant
or warranty, express or implied, the property then held hereunder, the recitals in such
reconveyance, of any matters or facts, will be conclusive proof of the truthfulness thereof.
The grantee in such reconveyance may be described as "the person or persons legally entitled
thereto."
3.5
That as additional security, Trustor hereby gives to and confers upon Beneficiary the right,
power, and authority, during the continuance of this Trust, to collect the property income,
reserving to Trustor the right, prior to any default by Trustor in payment of any
indebtedness secured hereby or in performance of any agreement hereunder, to collect and
retain such property income as it becomes due and payable. Upon any such default
Beneficiary may at any time, without notice either by person, by agent, or by receiver to be
appointed by a court, and without regard to the adequacy of any security for the
indebtedness hereby secured or the solvency of the Trustor, enter upon and take possession
of said Property or any part thereof, in his own name sue for or otherwise collect such
Property income, including that past due and unpaid and apply the same, less costs and
expenses of operation and collection, including reasonable attorney's fees of Beneficiary and
Trustee, upon any indebtedness secured hereby, and in such order as Beneficiary may
determine. The entering upon and taking possession of said Property, the collection of such
Property Income, and the application thereof as aforesaid, will not cure or waive any default
or notice of Trustee's sale hereunder or invalidate any act done pursuant to such notice.
Beneficiary will expressly have all rights provided for in A.R.S. §§ 33-702(B) and 33-807.
3.6
That upon default by Trustor in the payment of any indebtedness secured hereby or in
performance of any agreement hereunder, Beneficiary may declare all sums secured hereby
immediately due and payable by delivery to Trustee of written notice thereof, setting forth
the nature thereof, and of election to cause to be sold the Property under this Deed of Trust.
Beneficiary also will deposit with Trustee this Deed of Trust, said note(s), and all documents
evidencing expenditures secured hereby.
3.7
Trustee will record and give notice of Trustee's sale in the manner required by law, and after
the lapse of such time as may then be required by law, Trustee will sell, in the manner
required by law, said property at public auction at the time and place fixed by it in said notice
of Trustee's sale to the highest bidder for cash in lawful money of the United States, payable
at time of sale. Trustee at its discretion may postpone or continue the sale from time to time
by giving notice of postponement or continuance by public declaration at the time and place
last appointed for the sale. Trustee will deliver to such purchaser its Deed of Trust
conveying the property so sold, but without any covenant or warranty, expressed or implied.
Any persons, including Trustor, Trustee or Beneficiary, may purchase at such sale. The
purchaser at the Trustee's sale will be entitled to immediate possession of the Property as
against the Trustee or other persons in possession and will have a right to the summary
proceedings to obtain possession provided in Title 12, Chapter 8, Article 4, Arizona Revised
Statues, together with costs and reasonable attorneys’ fees.
6
3.8
After deducting all costs, fees, and expenses of Trustee and of this Trust, including cost of
evidence of title in connection with sale and reasonable attorney's fees of Beneficiary and
Trustee, Trustee will apply the proceeds of sale to payment of: all sums then secured hereby
and all other sums due under the terms hereof, with accrued interest; and the remainder, if
any, to the person or persons legally entitled thereto, or as provided in A.R.S. § 33-812. To
the extent permitted by law, an action may be maintained by Beneficiary to recover a
deficiency judgment for any balance due hereunder. In lieu of sale pursuant to the power of
sale conferred hereby, this Developer Deed of Trust may be foreclosed in the same manner
provided by law for the foreclosure of mortgages on real property. Beneficiary will also have
all other rights and remedies available to it hereunder and at law or in equity. All rights and
remedies will be cumulative.
3.9
That Beneficiary may appoint a successor Trustee in the manner prescribed by law. Trustor
and Beneficiary authorize Trustee, in the event any demand or notice is made or tendered to
it concerning this Deed of Trust or the Property, to hold any money and documents and to
withhold action or performance until an action will be brought in a court of competent
jurisdiction to determine the rights asserted or the property of the demand, notice or action
requested and Trustee will be without liability or responsibility for awaiting such court
action. A Successor Trustee herein will without conveyance from the predecessor Trustee,
succeed to all the predecessor's title, estate, rights, powers, and duties. Trustee may resign at
any time by mailing or delivering notice thereof to Beneficiary and Trustor and having so
resigned will be relieved of all liability and responsibility to Trustor, Beneficiary or otherwise
hereunder. "Trustee" herein will include all successor trustees. Trustee will not be liable for
any action taken in its discretion and in good faith, or upon advice of counsel, or upon any
information supplied or direction given by Beneficiary. Unless Trustee is adjudged grossly
negligent or guilty of intentional wrongdoing or breach of contract, Trustor and Beneficiary
will, upon demand, indemnify and hold harmless Trustee against all costs, damages,
attorneys’ fees, expenses and liabilities which it may incur or sustain in connection with this
Deed of Trust or any foreclosure or sale hereof or any court or other action or proceeding
arising here from.
3.10
That this Deed of Trust applies to, inures to the benefit of, and binds all parties hereto, their
heirs, legatees, devisees, administrators, executors, successors and assigns. The term
"Beneficiary" will mean the owner and holder of the note(s) secured hereby, whether or not
named as Beneficiary herein. In this Deed of Trust, whenever the contest so required, the
masculine gender includes the feminine and neuter, and the singular number includes the
plural.
3.11
That Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged,
is made a public record as provided by law. Trustee may but is not obligated to notify any
party hereto of pending sale under any other deed of trust or of any action or proceeding in
which Trustor, Beneficiary, or Trustee will be a party, unless brought by Trustee.
3.12
That any member or partner of Trustor shall have the same right, but not the obligation to
cure defaults hereunder on the same terms as the Trustor. Nothing in this Section 3.12
imposes, modifies or removes an obligation to cure any default.
3.13
That all notices, requests and demands to be made hereunder to the parties hereto shall be in
writing and shall be delivered by overnight courier service or sent by certified mail, return
receipt requested, postage prepaid, through the United States Postal Service, or personally
delivered to the addressees shown below or such other addresses which the parties may
provide to one another in accordance herewith. Such notices, request and demands, if sent
by mail, shall be deemed given 2 days after deposit in the United States mail, and if delivered
by overnight courier service or personally delivered, shall be deemed given when delivered.
7
To Beneficiary:
City of Glendale
Attn: Matthew Hess
Community Revitalization Division
5850 W. Glendale Ave.
Glendale, AZ 85301
With a copy to:
City of Glendale
Attn: City Manager
5850 W. Glendale Ave.
Glendale, AZ 85301
With a copy to:
City of Glendale
Attn: City Attorney
5850 W. Glendale Ave.
Glendale, AZ 85301
To Trustor:
DEVELOPER
With a copy to:
INVESTOR
With a copy to:
DEVELOPER ATTORNEY
The undersigned Trustor requests that a copy of any notice of Trustee's sale hereunder be mailed to
him at his address set forth above.
3.14
That this Deed of Trust and the Note it secures are nonrecourse.
(Signatures Appear on Next Page)
8
BENEFICIARY:
CITY OF GLENDALE, an Arizona
municipal corporation
___________________________________
Kevin R. Phelps
City Manager
ATTEST:
______________________________
Julie K. Bower
City Clerk
(SEAL)
APPROVED AS TO FORM:
______________________________
Michael D. Bailey
City Attorney
9
TRUSTOR:
Glendale Leased Housing Associates I, LLLP
a Minnesota limited liability limited partnership
By:
Its: TITLE
By: _______________________________
Its: TITLE
STATE OF ARIZONA
)
) ss.
County of Maricopa
)
This Deed of Trust is subscribed and sworn to before me this _____ day of _________________,
2023, by AUTHORIZED SIGNATORY, TITLE of DEVELOPER, the Developer who signed the above
document.
____________________________________
Notary Public
My Commission Expires:
_____________________
Do not destroy this Deed of Trust OR the Note which it secures.
Both must be delivered to the Trustee for cancellation before release and conveyance will be made
10
EXHIBIT G
PROMISSORY NOTE
Loan Amount: $500,000.00
Glendale, Arizona
Date: DATE
FOR VALUE RECEIVED, the undersigned ("Maker") jointly and severally promise(s) to pay to the order of
the City of Glendale, an Arizona municipal corporation (City), or its successors, the principal sum of Five
Hundred Thousand Dollars ($500,000.00). This Promissory Note (“ Note”) is made on a 20-year
Deferred Payment, bearing interest at the rate of 0.0% per annum and is secured by a Deed of Trust and
Assignment of Rents (“Deed of Trust”) encumbering the property identified in the Deed of Trust
(“Property”).
This Note shall become due and payable in full upon any transfer, voluntary, involuntary, or by operation of
law, of the Property within ten years from the date of this Note, or at any time within twenty years from the
date of this Note undersigned ceases to use the Property to provide services to assist low-income persons and
families in obtaining decent and affordable rental opportunities, provided however, that a transfer of Maker's
Investor Member interest or removal and replacement of Maker's Managing Member in accordance with
Maker's Operating Agreement, shall not trigger a repayment hereunder.
This Note is secured by a Deed of Trust executed by the undersigned naming the City as Beneficiary; which
Deed of Trust and this Note are security for the obligations of the undersigned contained in the Developer
Agreement for the 67 Flats Project, new multifamily rental project under the Home Investment Partnerships
Program (“Agreement”) executed by the parties on DATE.
The amount due at such time shall be the full principal sum amount as authorized by the HOME Investment
Partnerships Act at title II of the Cranston-Gonzalez National Affordable Housing Act, as amended, 42
U.S.C. 12701, et seq. (“HOME Program”).
Should default be made in the payment of any amount when due, or should the undersigned default on any
obligation owed to the City under the terms of this Note or the Deed of Trust providing security, therefore,
the whole sum of principal shall become immediately due and payable at the option of the City.
If suit or action is instituted by City to recover on this Note, the undersigned will pay reasonable attorneys’
fees and costs in addition to the amount due on the Note.
Diligence, demand, protest and notice of demand and protest are hereby waived and the undersigned hereby
waives, to the extent which otherwise would apply to the debt evidenced by this Note. Consent is hereby
given to the extension of time of payment of this Note, without notice.
The undersigned reserves the right to repay at any time all of the principal amount of this Note in a single
payment without the penalties, discount or premiums.
The Note and Deed of Trust are nonrecourse.
IN WITNESS WHEREOF, this Note and Deed of Trust securing the Note, have been duly executed by the
undersigned, as of the date above written.
11
MAKER:
GLENDALE LEASED HOUSING ASSOCIATES I,
LLLP,
a Minnesota limited liability limited partnership
By: Langston Hughes Glendale Family, LLC,
a Georgia limited liability company
Its: General Partner
By: Langston Hughes Affordable Housing, Inc., a Georgia
501(c)(3) nonprofit corporation
Its: Manager
_______________________________
By: David Sewall Searles, Jr, President
Its: President
STATE OF ARIZONA
)
) ss.
County of Maricopa
)
This Note is subscribed and sworn to before me this _____ day of _________________, 2023, by
David Sewall Searles, Jr., President of Glendale Leased Housing Associates I, the Developer who signed the
above document.
____________________________________
Notary Public
My Commission Expires:
1
EXHIBIT H
CERTIFICATIONS
See attached Certifications:
1.
Policy of Nondiscrimination on the Basis of Disability.
2.
Section 319 of Public Law 101-121.
3.
Contracting with Small and Minority Firms, Women’s Business Enterprises and Labor Surplus Area
Firms.
4.
Drug-Free Workplace.
###
2
POLICY OF NONDISCRIMINATION ON THE
BASIS OF DISABILITY
The undersigned representative agrees, on behalf of Client, to have or adopt a Policy of Nondiscrimination
on the Basis of Disability. Such Policy will state that the Developer does not discriminate on the basis of
disabled status in the admission or access to, or treatment or employment in, its federally assisted programs or
activities.
_______________________________________
_______________________________________
Signature
Date
1
SECTION 319 OF PUBLIC LAW 101-121
The Undersigned certifies, to the best of his or her knowledge and belief, that:
1.
No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, 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.
2.
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 this Federal
contract, grant, loan, or cooperative agreement, the undersigned will complete and submit Standard
Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
3.
The undersigned will require that the language of this certification be included in the award documents for
all sub-awards at all tiers (including subcontracts, sub-grants, and contracts under grants, loans, and
cooperative agreements), and that all agencies will certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made
or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed
by 31 U.S.C. § 1352. Any person who fails to file the required certification will be subject to a civil penalty of not
less than $10,000 and not more than $100,000 for each such failure.
_______________________________________
_______________________________________
Signature
Date
1
CONTRACTING WITH SMALL AND MINORITY FIRMS,
WOMEN’S BUSINESS ENTERPRISES AND LABOR SURPLUS AREA FIRMS
1.
It is a national policy to award a fair share of contracts to small and minority business firms.
Accordingly, affirmative steps must be taken to assure that small and minority businesses are utilized
when possible as sources of supplies, equipment, construction, and services. Affirmative steps will
include the following:
1.1
Qualified small and minority businesses on solicitation lists.
1.2
Assuring that small and minority businesses are solicited whenever they are potential
sources, and to the greatest extent possible that these businesses are located within the
metropolitan area.
1.3
When economically feasible, dividing total requirements into smaller tasks or quantities so as
to permit maximum small and minority business participation.
1.4
Where the requirement permits, establish delivery schedules which will encourage
participation by small minority businesses.
1.5
Using the services and assistance of the Small Business Administration, and the Office of
Minority Business Enterprises of the Department of Commerce and the Community
Services Administration as required.
1.6
If any subcontracts are to be let, requiring the prime contractor to take the affirmative steps
in §§ 1.1 through 1.5. Grantees will take similar appropriate action in support of women's
enterprises.
1.7
To the greatest extent feasible, opportunities for training and employment will be given to
low and moderate income persons residing within the metropolitan area.
2.
The above-described equal opportunity requirements are obligations of the City because federal
funds are being utilized to finance the Project to which this Project pertains.
3.
In executing any contract, the Developer agrees to comply with the requirements and to provide
appropriate documentation at the request of the City.
_______________________________________
_______________________________________
Signature
Date
1
DRUG-FREE WORKPLACE
The Developer certifies that it will maintain a drug-free workplace in accordance with the requirements of 24
C.F.R. Part 24, Subpart F by:
1.
Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing,
possession, or use of a controlled substance is prohibited in the Developer’s workplace and
specifying the actions that will be taken against employees for violation of such prohibition.
2.
Establishing an ongoing drug-free awareness program to inform employees about:
2.1
The dangers of drug abuse in the workplace;
2.2
The Developer’s policy of maintaining a drug-free workplace;
2.3
Any available drug counseling, rehabilitation and employee assistance programs; and
2.4
The penalties that may be imposed upon employees for drug abuse violations occurring in
the workplace.
3.
Making it a requirement that each employee to be engaged in the performance of the grant be given a
copy of the statement required by paragraph 1.
4.
Notifying the employee in the statement required by paragraph 1 that, as a condition of employment
under the grant, the employee will:
4.1
Abide by the terms of the statement; and
4.2
Notify the employer in writing of his or her conviction for a violation of a criminal drug
statute occurring in the workplace no later than five calendar days after such conviction.
5.
Notifying the City in writing, within ten calendar days after receiving notice under paragraph 4.2
from an employee or otherwise receiving actual notice of such conviction. Employers of convicted
employees must provide notice including position title, to every grant officer or other designee on
whose grant activity the convicted employee was working, unless the Federal agency has designated a
central point for the receipt of such notices. Notice will include the identification number(s) of each
affected grant.
6.
Taking one of the following actions, within 30 calendar days of receiving notice under paragraph 4.2,
with respect to any employee who is so convicted:
6.1
Taking appropriate personnel action against such an employee, up to and including termination,
consistent with the requirements of the Rehabilitation Act of 1973, as amended; or
6.2
Requiring such employee to participate satisfactorily in a drug abuse assistance or
rehabilitation program approved for such purposes by a federal, state, local health
requirements, law enforcement, or other appropriate agency.
7.
Making a good faith effort to continue to maintain a drug-free workplace through implementation of
the above-described paragraphs.
_______________________________________
_______________________________________
Signature
Date
2
EXHIBIT I
FEDERAL LAWS AND REGULATIONS
FY 2022-23
1.
Applicability of Uniform Administrative Requirements. The parties should comply with all
administrative requirements, cost principles, and audit requirements as provided in 2CFR Part 200 in
compliance with the Final Guidance issued by U.S. Department of Housing and Urban Development on Feb.
26, 2015 (Notice: SD-2015-01)
2.
Equal Opportunity.
2.1
The City agrees to comply with Title VI of the Civil Rights Act of 1964 (P.L. 88-352) and the HUD
regulations under 24 CFR Part 1, which provides that no person in the United States will, on the
grounds of race, color, or national origin, be excluded from participation in, be denied the benefits
of, or be otherwise subjected to discrimination under any activity receiving Federal financial assistance
by way of grant, loan, or MOU and will immediately take any measures necessary to effectuate this
MOU. If any real property or structure thereof is provided or improved with the aid of Federal
financial assistance extended to the City, this assurance will obligate the City, or in the case of any
transfer of such property or structure is used for a purpose of which the Federal financial assistance
is extended or for another purpose involving the provision of similar services or benefits.
2.2
The City agrees to comply with Title VIII of the Civil Rights Act of 1968 (P.L. 90-284), as amended
by the Fair Housing Amendments Act of 1988 (P.L. 100-430), and will administer all activities relating
to housing and community development in a manner to affirmatively further fair housing within
Constitutional limitations throughout the United States.
2.3
The City agrees to comply with Section 109 of the Housing and Community Development Act of
1974 and 1977, as amended, and in conformance with all requirements imposed pursuant to the
regulations of the Department of HUD (24 CFR Part 570.602) issued pursuant to that Section; and
in accordance with Equal Opportunity obligations of that Section, no person in the United States
will, on the grounds of race, color, national origin, or sex, be excluded from participation in, be
denied the benefits of, be subjected to discrimination under, any activity funded in whole or in part
with the Community Development funds. Section 109 of the Act further provides that any
prohibition against discrimination on the basis of age, under the Age Discrimination Act of 1975
(24 CFR Part 146), or with respect to an otherwise qualified handicapped person, as provided in
Section 504 of the Rehabilitation Act of 1973 (24 CFR Part 8), will also apply to any activity funded
in whole or in part with funds made available pursuant to the Act.
2.4
The City agrees to comply with Executive Order 11063 on equal opportunity in housing and related
facilities owned or operated by the Federal Government or provided with Federal financial assistance.
2.5
The City agrees to comply with Executive Order 11246, as amended, requiring nondiscrimination
and affirmative action to ensure nondiscrimination in employment by government contractors and
subcontractors and under federally assisted construction contractors.
2.6
The City agrees to comply with Section 3 of the Housing and Urban Development Act of 1968 (12
U.S.C. 1701u), as amended, the HUD regulations issued pursuant thereto (24 CFR Part 135) as
follows:
3
a.
The work to be performed under this MOU is on a project assisted under a activity providing
direct Federal financial assistance from the Department of Housing and Urban
Development and is subject to the requirements of Section 3 of the Housing and Urban
Development Act of 1968, as amended (12 U.S.C. 1701u); Section 3 requires that to the
greatest extent feasible, opportunities for training and employment be given to lower income
residents of the project area and MOUs for work in connection with the project be awarded
to business concerns that are located in or owned in substantial part by persons residing in
the area of the project.
b.
The parties to this MOU will comply with the provisions of said Section 3 and the
regulations issued pursuant thereto by the Secretary of Housing and Urban Development
set forth in 24 CFR Part 135, and all applicable rules and orders of the Department issued
there under prior to the execution of this MOU. The parties to this MOU certify and agree
that they are under no contractual or other disability that would prevent them from
complying with these requirements.
c.
The contractor will send to each labor organization or representative or workers, with which
he has a collective bargaining MOU or other MOU or understanding, if any, a notice
advertising the said labor organization or workers' representative of his commitments under
this Section 3 clause and will post copies of the notice in conspicuous places available to
employees and applicants for employment or training.
d.
The contractor will include this Section 3 clause in every subcontract for work in connection
with the project and will, at the direction of the applicant or Community of Federal financial
assistance, take appropriate action pursuant to the subcontract upon a finding that the
subcontractor is in violation of regulations issued by the Secretary of Housing and Urban
Development, 24 CFR Part 135. The contractor will not subcontract with any subcontractor
where it has notice or knowledge that the latter has been found in violation of regulations
under 24 CFR Part 135 and will not let any subcontract unless the subcontractor has first
provided it with a preliminary statement of ability to comply with the requirements of these
regulations.
e.
Compliance with the provisions of Section 3, the regulations set forth in 24 CFR Part 135,
and all applicable rules and orders of the Department issued there under prior to the
execution of this MOU, will be a condition of the Federal financial assistance provided to
the project.
3.
Nondiscrimination in Federally Assisted Programs of the Department of Housing and Urban
Development – Effectuation of Title VI of the Civil Rights Act of 1964.
3.1
The City shall, as a recipient of HUD financial assistance, take reasonable steps to provide meaningful
access to Limited English Proficiency (LEP) persons. This requirement shall extend to the City’s
entire activity regardless of how much HUD assistance is received.
3.2
In order to determine what reasonable steps must be taken to provide meaningful access to LEP
persons, the City should apply HUD’s four-factor analysis.
a.
Identify the number or proportion of LEP persons eligible to be served or likely to be
encountered by the activity or City.
b.
Identify the frequency with which LEP persons come in contact with the activity.
4
c.
Consider the nature and importance of the activity or service provided by the activity to
people’s lives.
d.
Identify the resources available to the City and the costs associated with providing
meaningful access to LEP persons.
3.3
The City must determine what language assistance measures are sufficient for the activity funded
with HUD funds. The City shall have flexibility in addressing the needs of the LEP persons served;
however, this cannot be used to minimize the obligation that the needs be addressed. The City is not
required to take measures that would be a cost burden or cost prohibitive to the City.
3.4
Efforts to take reasonable steps to provide meaningful access to LEP persons must be documented
in the City’s records and be made available upon request.
4.
Section 504. The City agrees to comply with any federal regulations issued pursuant to compliance with
Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination against the handicapped in any
federally assisted program.
5.
Subcontracting. All work or services covered by this MOU, which is subcontracted by the City, will be
specified by written MOU and subject to all provisions of this MOU. All subcontracts must be approved by
the City prior to execution.
6.
Interest of Certain Federal Officials. No member of or delegate to the Congress of the United States
shall be admitted to any share or part of this MOU or to any benefit to arise from the same.
7.
Interest of Members, Officers or Employees of the City, Members of Local Governing Body, or
Other Public Officials. No member, officer, or employee of the City or its designees or agents, no member
of the governing body of the locality in which the activity is situated, and no other public official of such
locality or localities who exercises any functions or responsibilities with respect to the activity during his tenure
or for one year thereafter, will have any interest, direct or indirect, in any MOU or subcontract, or the proceeds
thereof, for work to be performed in connection with the Activity assisted under this MOU pursuant to the
provisions of 24 CFR 570.611.
8.
Lobbying. Program Funds shall not be used for publicity or propaganda purposes designed to support or
defeat legislation proposed by federal, state, or local governments or to influence or attempting to influence
an officer or employee of any agency, a member or employee of Congress.
9.
Hatch Act. The City agrees to comply with all provisions of the Hatch Act and that no part of the activity
will involve political activities, nor will personnel employed in the administration of the activity be engaged
in activities in contravention of Title V, Chapter 15, of the United States Code.
10.
Labor Standards Provisions.
10.1
The City agrees to comply with the requirements of the Secretary of Labor in accordance with the
Davis-Bacon Act as amended, the provisions of MOU Work Hours and Safety Standards Act (40
U.S.C. 327 et seq.) 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 MOU. The City agrees to
comply with the Copeland Anti-Kick-Back Act (18 U.S.C. 874 et seq.) and its implementing
5
regulations of the U. S. Department of Labor at 29CFR Part 5. The City shall maintain
documentation that demonstrates compliance with hour and wage requirements of this part. Such
documentation shall be made available to the Grantee for review upon request.
10.2
The City agrees that, except with respect to the rehabilitation or construction of residential property
containing less than eight (8) units, all contractors engaged under MOUs in excess of $2,000.00 for
construction, renovation or repair work financed in whole or in part with assistance provided under
this MOU, shall comply with federal requirements adopted by the City pertaining to such MOUs and
with the applicable requirements of the regulations of the Department of Labor, under 29CFR Parts
1,3,5 and 7 governing the payment of wages and ration of apprentices and trainees to journey
workers; provided that, if wage rates higher than those required under the regulations are imposed
by state or local laws nothing hereunder is intended to relieve the City of its obligation, if any, to
require payment of the higher wage. The City shall cause or require to be inserted in full, in all such
MOUs subject to such regulations, provisions meeting the requirement of this paragraph.
11.
Compliance with Environmental Requirements. The City agrees to comply with any conditions resulting
from the City's compliance with the provisions of the National Environmental Policy Act of 1969 and the
other provisions of law specified at 24CFR §58.5 insofar as the provisions of such Act apply to activities set
forth in the Statement of Work.
12.
Compliance with Flood Disaster Protection Act.
12.1
This MOU is subject to the requirements of the Flood Disaster Protection Act of 1973 (P.L. 93-234).
No portion of the assistance provided under this MOU is approved for acquisition or construction
purposes as defined under Section 3(a) of said Act, for use in any area identified by the Secretary as
having special flood hazards, which is located in a community not then in compliance with the
requirements for participation in the national flood insurance program pursuant to Section 201(d) of
said Act; and the use of any assistance provided under this MOU for such acquisition or construction
in such identified areas in communities then participating in the national flood insurance program
will be subject to the mandatory purchase of flood insurance requirements of Section 102(a) of said
Act.
12.2
Any contract or agreement for the sale, lease, or other transfer of land acquired, cleared, or improved
with assistance provided under this MOU shall contain, if such land is located in an area identified
by the Secretary as having special flood hazards and in which the sale of flood insurance has been
made available under the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4001 et seq.,
provisions obligating the transferee and its successors or assigns to obtain and maintain, during the
ownership of such land, such flood insurance required with respect to financial assistance for
acquisition or construction purposes under Section 102(2) of Flood Disaster Protection Act of 1973.
Such provisions will be required notwithstanding the fact that the construction of such land is not
itself funded with assistance under this MOU.
13.
Compliance with Environmental Laws.
13.1
This MOU is subject to the requirements of the Clean Air Act, as amended, 42 U.S.C. 1857 et seq.;
the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq.; and the regulations of
the Environmental Protection Agency with respect thereto, at 40CFR Part 15, as amended from time
to time.
13.2
In compliance with said regulations, the City will cause or require to be inserted in full in all
Agreements and subcontracts with respect to any nonexempt transaction thereunder funded with
assistance provided under this MOU, the following requirements:
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a.
A stipulation by the contractor or subcontractor that any facility to be utilized in the
performance of any nonexempt Agreement or subcontract is not listed on the list of
Violating Facilities issued by the Environmental Protection Agency (EPA) pursuant to
40CFR §15.20.
b.
Agreement by the contractor to comply with all the requirements of Section 114 of the Clear
Air Act, as amended (42 U.S.C. 1857c-8), and Section 308 of the Federal Water Pollution
Control Act, as amended, (33 U.S.C. 1318) relating to inspection, monitoring, entry, reports,
and information, as well as all other requirements specified in said Section 114 and Section
308, and all regulations and guidelines issued thereunder.
c.
A stipulation that as a condition for the award of the MOU, prompt notice will be given of
any notification received from the director, Office of Federal Activities EPA, indicating that
a facility utilized or to be utilized for the MOU is under consideration to be listed on the
EPA list of Violating Facilities.
d.
Agreement by the contractor that he will include or cause to be included the criteria and
requirements in paragraphs (a) through (d) of this section in every nonexempt subcontract
and requiring the contractor to take such action as the Government may direct as means of
enforcing such provisions.
e.
In no event will any amount of the assistance provided under this MOU be utilized with
respect to a facility that has given rise to a conviction under Section 113(c)(1) of the Clean
Air Act or Section 309(c) of the Federal Water Pollution Control Act.
13.3
The Resource Conservation and Recovery Act. The City will comply with the Resource Conservation
and Recovery Act (“RCRA”), including, but not limited to, 42 U.S.C. § 6962, which requires
preference be given in procurement programs to the purchase of specific products containing
recycled materials identified in guidelines developed by the Environmental Protection Agency
(“EPA”) (40CFR Parts 247 through 252).
13.4
The Toxic Substances Control Act. The City will comply with the Toxic Substances Control Act
(“TSCA”), 15 U.S.C. §2601 et seq.
13.5
The Federal Insecticide, Fungicide and Rodenticide Act. The City will comply with the Federal
Insecticide, Fungicide and Rodenticide Act (“FIFRA”), 7 U.S.C. §136 et seq.
13.6
The City will comply with all other applicable federal and state environmental laws and regulations,
including, but not limited to, §6002 of the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act (“RCRA”) (Pub. L. 94-580, 42 U.S.C. §6962). Section 6962 requires
that preference be given in procurement programs to the purchase of specific products containing
recycled materials identified in guidelines developed by the Environmental Protection Agency
(“EPA”) (40CFR Parts 247 through 252). Accordingly, state and local institutions of higher
education, hospitals, commercial organizations and international organizations when operating
domestically, and non-profit organizations that receive direct Federal awards or other Federal funds
will give preference in their procurement programs funded with Federal funds to the purchase of
recycled products pursuant to the EPA guidelines.
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14.
Historic Preservation. This MOU is subject to the requirements of P.L. 89-665, the Archaeological and
Historic Preservation Act of 1974 (P.L. 93-291), Executive Order 11593, and the procedures prescribed by
the Advisory Council on Historic Preservation in 36CFR Part 800. The City must take into account the effect
of a project on any district, site, building, structure, or object listed in or found by the Secretary of the Interior,
pursuant to 35 CFR Part 800, to be eligible for inclusion in the National Register of Historic Places,
maintained by the National Park Service of the U. S. Department of the Interior, and must make every effort
to eliminate or minimize any adverse effect on a historic property.
15.
Historic Barriers. This MOU is subject to the requirements of the Architectural Barriers Act of 1968 (42
U.S.C. 4151) and its regulations. Every building or facility (other than a privately owned residential structure)
designed, constructed, or altered with HOME funds must comply with requirements of the "American
Standards Specifications for Making Buildings and Facilities Accessible to, and Usable by, the Physically
Handicapped.”
16.
Lead-Based Paint. This MOU is subject to the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821
et seq.), and Lead-Based Paint Regulations (24CFR Part 35 and 24CFR §570.608 and/or 92.335), and related
amendments thereto. The use of lead-based paint is prohibited whenever federal funds are used directly or
indirectly for the construction, rehabilitation, or modernization of residential structures. All federally assisted
residential structures and related property constructed prior to 1978, Homebuyer Programs, Tenant-Based
Rental Assistance, and Special-Needs Housing (acquisition), will comply with existing and new Lead-Based
Paint Hazard Reduction Requirements, effective September 15, 2000. As the Grantor or Participating
Jurisdiction, the City of Glendale shall be consulted regarding the compliance status.
17.
Acquisition/Relocation. This MOU is subject to providing a certification that it will comply with the
acquisition and relocation requirements of the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, as amended, implementing regulations at 49 CFR Part 24, and 24 CFR Part 511.14 and
570.606, which govern the acquisition of real property for the project and provision of relocation assistance
to persons displaced as a direct result of acquisition, rehabilitation, or demolition for the project.
18.
Property Disposition. Real or personal property purchased in whole or in part with HOME funds shall not
be disposed through sale, use, or location without the written permission of the City and/or HUD as
applicable. The proceeds from the disposition of real property will be considered Program Income and
subject to 24 CFR §570.504(c).
19.
Debarment, Suspension, Ineligibility and Voluntary Exclusion.
19.1
In order to participate in this MOU, the City must certify that it and/or its owners/officers have not
been debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from
covered transactions by a federal department or agency.
19.2
The City, shall include without modification the Certification language, entitled “Certification
Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion – Lower Tier Covered
Transactions” with all subgrantees or other contractors; in all lower tier covered transactions and in
all solicitations for lower tier covered transactions in accordance with 45 CFR part 76.
19.3
If the City is unable to comply with this requirement, an explanation shall be immediately provided
to the City in accordance with paragraph 29 of this MOU.
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20.
Federal Fire Prevention and Control Act of 1992. The Fire Administration Authorization Act of 1992
added a new Section 31 to the Federal Fire Prevention and Control Act of 1974. This Section requires that
approved smoke detectors be installed in all houses assisted under the Community Development Block Grant
Program. To comply with this requirement and locally adopted codes City shall install smoke detectors in all
sleeping areas and any hallway connecting these sleeping areas.
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EXHIBIT J
ADDITIONAL REQUIREMENTS
See attached requirements:
1.
Procurement
2.
Disputes/Grievance Procedure
3.
Right to Refuse Service
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PROCUREMENT
1.
The Developer agrees to comply with federal procurement requirements and the City’s procurement
code for all expenditures of funds. Below is an overview of the procurement requirements.
1.1
Purchases over $50,000 must be publicly bid.
1.2
Purchases between $10,001 and $50,000 must follow competitive purchasing procedures
based on written quotations.
1.3
Purchases of $5,000 to $10,000, whenever practical, must be based on oral quotations, with
file documentation of vendors contacted and quotations received.
1.4
Purchases under $5,000 do not require written or oral quotations.
1.5
Expenditures for employee salaries or items such as client subsidies would not generally be
subject to procurement requirements. (Such items do not generally constitute purchases.)
2.
The Developer agrees to adopt a written procurement policy that, at a minimum, complies with the
above procurement requirements, and to follow accounting procedures that will assure compliance
with federal and city procurement codes.
3.
The Developer further agrees to retain sufficient supporting documentation to demonstrate
compliance with these requirements. Examples include, but are not limited, to the following:
3.1
Copies of bid documents;
3.2
Written quotations; and
3.3
Evidence of oral quotations.
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DISPUTES/GRIEVANCE PROCEDURE
1.
The Developer agrees to negotiate and resolve any disputes in the delivery of activities stated herein
and will inform the City in writing of such negotiations and resolutions.
2.
In the event the issue is not resolved, the City will confer with all parties to understand the issue, if
appropriate, offer guidance, and try and reach an amicable solution.
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1
RIGHT TO REFUSE SERVICE
The City reserves the right to refuse, terminate, or suspend service or accounts to an individual, company, or
agency, if the City believes that conduct or actions violate applicable law, is harmful to the interests of the
City of Glendale and its affiliates, or meets the criteria covered under City’s Right to Refuse Assistance Policy.
Legal counsel will be consulted before such action is undertaken, unless an emergency exists.
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1
EXHIBIT K
INSURANCE CERTIFICATE
(See attached)
26111872v1