NAC HOME-ARP AMENDMENT 1_ 1-28 PROGRAM UPDATE.DOCX
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Contract No. C-22-24-076-X-01 Amendment No. 1 NAC El Mirage Housing, LLC. Developer Agreement Page 1 of 11 AMENDMENT NO. 1 TO THE DEVELOPER AGREEMENT BETWEEN MARICOPA COUNTY ADMINISTERED BY ITS HUMAN SERVICES DEPARTMENT AND NAC EL MIRAGE HOUSING, LLC I. Maricopa County (“County”) administered by its Human Services Department and NAC El Mirage Housing, LLC (“Developer”) entered into a financial Agreement (“Agreement”) on or about February 28, 2024. The purpose of the Agreement is to provide the Developer with funding to acquire land and construct a new multifamily rental community with 45 units and provide supportive services to those tenants. The project will service residents located within Maricopa County Urban County Cities of City of El Mirage, Town of Youngtown, City of Tolleson and any unincorporated areas of Maricopa County West of 67th Avenue, the City of Avondale, City of Peoria, and City of Surprise. The County provided the Developer with $6,140,196 in U.S. Department of Housing and Urban Development (HUD) HOME Investment Partnerships Program funds (HOME-ARP) under Assistance Listing Number (ALN) 14.239 and $10,583,125 in American Rescue Plan Act – Coronavirus State and Local Fiscal Recovery Funds (“ARPA-SLFRF”) under ALN 21.027, provided to the County by the U. S. Treasury for the provision of HOME activities as identified in Section 3 (Work Statement). The County shall provide the DEVELOPER with total funding in the amount of $16,723,321 under the terms of the Agreement, which term shall be February 28, 2024, through December 31, 2026. The County and Developer are collectively referred to as the “Parties.” II. The Parties now agree to enter into this Amendment No. 1 to amend the Agreement as follows: A. Revise Section 1 (GENERAL PROVISIONS), Paragraph 10. DEFINITIONS, to replace subparagraph 10.25 Program Income in its entirety with the following: 10.25 Program Income means gross income received by the Developer directly generated from the use of HOME funds. Program Income is subject to the requirements of the HOME regulations. B. Revise Section 2 (SPECIAL PROVISIONS) Paragraph 6.0 PROGRAM INCOME and replace it in its entirety with the following: 6.0 PROGRAM INCOME No program income will be created through the development or operation of this project C. Revise and replace Section 3 (WORK STATEMENT) with the attached, incorporated into the Agreement, which Project shall now be identified as Cross Winds @ Three Star Pointe (“Project”). III. Section II above contains all the changes to the Agreement made by this Amendment No. 1. The Agreement is amended to incorporate the changes contained in this Amendment No. 1. All other terms and conditions of the Agreement remain in full force and effect as executed by the Parties. This Amendment No. 1 is subject to and incorporates the provisions of A.R.S. § 38-511. Contract No. C-22-24-076-X-01 Amendment No. 1 NAC El Mirage Housing, LLC. Developer Agreement Page 2 of 11 IV. The Parties have authorized the undersigned to execute this Amendment No. 1 on their behalf, and it shall be effective upon approval and signature by both Parties. APPROVED BY: MARICOPA COUNTY Thomas Galvin Date Chairman, Board of Supervisors APPROVED BY: NAC EL MIRAGE HOUSING, LLC. Trula Breuninger, President/CEO of its Sole Member, Native American Connections, Inc. Attested to: _ Juanita Garza Date Clerk of the Board IN ACCORDANCE WITH A.R.S. §§ 11-201 11- 251, AND 11-952, THIS AMENDMENT NO. 1 HAS BEEN REVIEWED BY THE UNDERSIGNED ATTORNEY WHO HAS DETERMINED IT IS PROPER IN FORM AND WITHIN THE POWERS AND AUTHORITY GRANTED TO MARICOPA COUNTY UNDER THE LAWS OF THE STATE OF ARIZONA. Approved as to form: Deputy County Attorney Date Contract No. C-22-24-076-X-01 Amendment No. 1 NAC El Mirage Housing, LLC. Developer Agreement Page 3 of 11 WORK STATEMENT - MARICOPA COUNTY HOME Investment Partnerships Program - American Rescue Plan (HOME-ARP) American Rescue Plan Act (ARPA) DEVELOPER: NAC El Mirage Housing, LLC HOME-ARP Funds: $6,140,196 ($5,230,440 entitlement and $909,756 admin) ARPA Funds: $10,583,125 Activity Type: Acquisition and Development of Affordable Multifamily Rental and Non-Congregate Shelter Community Activity Name: Cross Winds @ Three Star Pointe (“Project”) 1.0 FUNDING HOME-ARP PY 21 HOME-ARP ADMIN PY21 ARPA TOTAL $5,230,440 $909,756 $10,583,125 $16,723,321 1.1 ARPA funds $10,583,125, for development of affordable housing must be expended before HOME ARP funds are utilized unless otherwise approved by the County. 1.1.1 ARPA funds must be fully expended by December 31, 2026. 1.2 HOME-ARP funds $4,924,214 shall be expended on development of non- congregate shelter (“NCS”). 1.2.2 HOME-ARP funds NCS funds must be fully expended by December 31, 2026. 1.3 HOME-ARP funds $1,215,982, shall be expended on Supportive Services. 1.3.3 HOME-ARP Supportive Services must be fully expended by June 30, 2030. 2.0 DETAILED SCOPE OF WORK 2.1 The Developer will utilize HOME-ARP and ARPA funds to acquire and construct a new multifamily rental community with 45 units and provide supportive services to those tenants. The project will service residence located within Maricopa County Urban County Cities of, City of El Mirage, Town of Youngtown, City of Tolleson and any unincorporated areas of Maricopa County West of 67th Avenue, and the City of Avondale, City of Peoria, and City of Surprise. The project is located at approximately 16102 N. El Mirage Rd, Surprise, AZ 85335, including parcels 501-78-070D and 501-78-065B. The project will benefit low- income families with an annual household income at or below 60% of the area median income (“AMI”). 32 units will be affordable housing units and 13 units will be NCS units; 13 HOME-ARP-assisted NCS units serving the qualified populations per the CPD Notice 21-10 and will support households experiencing homelessness with short-term housing program agreements with the opportunity to transition to permanent affordable units with successful completion of a supportive service program. 21 ARPA-assisted units serving households at or below 60% AMI. The remaining 11 units will be non-assisted and have the flexibility to act as a HOME-ARP-assisted or ARPA-assisted unit at the Developers’ discretion. All 45 units in the Project shall be “Floating Units” with respect to their allocation above. Floating Units means the total number of County-Assisted Units in the Project is to be maintained for the Affordability Contract No. C-22-24-076-X-01 Amendment No. 1 NAC El Mirage Housing, LLC. Developer Agreement Page 4 of 11 Period and extended commitment period, but that the Developer may from time to time change the designation of individual units from a County HOME-ARP- Assisted or ARPA-Assisted Unit to a non-County-Assisted Unit so long as the total number of County HOME-ARP-assisted or ARPA-assisted Units and the Unit Mix at all times conform to the requirements of this Agreement. 2.2 The Developer will provide onsite supportive services including Street Outreach and Diversion; Individualized Case Management; Food Pantry; Basic Needs; A Healthy You Program – Health Care; Job Readiness and Financial training Workshops; Childcare Coordination of Care; Housing Stability Resources. In addition, the Developer operates supportive services located at multiple facilities throughout Maricopa County and can provide transportation services to tenants if needed. The onsite services will be staffed by Site Supervisor(s), Housing Navigator(s), Case Manager(s) and Case Aid(s). All HOME-ARP activities will follow the guidance provided in Notice CPD-21-10: Requirements for Use of Funds in the HOME-ARP Program 2.3 Project Staff: The Developer shall maintain staff qualified to perform the duties of the project. The Developer shall immediately notify the County regarding any changes in staff committed to the project. The County reserves the right to review the qualifications of new staff committed to the project after the execution of this Agreement. The Developer will be responsible for all communications with the Maricopa HOME Consortium, providing all updates and as needed reporting. In addition, any complaints will be the responsibility of the Developer. 2.4 Subcontractors: The Developer will oversee every aspect of the project. This oversight includes, but is not limited to, day-to-day operations; preparing budgets; managing the budget, timeline, and change orders; issuing a Request for Proposal and selecting the general contractor and Subcontractors. The Developer shall select Subcontractors in accordance with the Administrative Requirements of this Agreement. The Developer shall contract with responsible and qualified Subcontractors to perform the duties of the project. The Developer shall verify the qualifications of each Subcontractor through license verification, references, and SAM.gov. 3.0 ACTIVITY GOALS: ACTIVITY GOALS Development of Affordable Rental Housing Supportive Services Acquisition and Development of Non-Congregate Shelters (“NCS”) Tenant Based Rental Assistance Activity Goal HOME -ARP ARPA HOME -ARP ARPA HOME- ARP ARPA HOME -ARP ARPA Estimated Number of New Units Developed 0 21 0 0 13 0 0 0 Estimated Number of Households to Benefit 0 21 45 0 13 0 0 0 45 Units total in the Project Contract No. C-22-24-076-X-01 Amendment No. 1 NAC El Mirage Housing, LLC. Developer Agreement Page 5 of 11 11 units are non-HOME-ARP-Assisted or ARPA-Assisted. HOME-ARP- Assisted NCS is defined in this project as short-term housing where tenants will sign Housing Program Agreement (“HPA”). The HPA stay will be no less than 6 months but no more than 12 months with no lease agreement. Tenants will have the opportunity to leave HPA at any time with no penalty should suitable, affordable, sustainable housing be secured. The intent is for participants to utilize supportive services, gain stability and transition to transitional or permanent affordable units. ARPA-Assisted units will have a minimum lease of 6 months with renewals not extending past 2 years without the County’s approval. The intent is for participants to utilize supportive services, gain stability and transition to permanent affordable units. 4.0 LOGIC MODEL: PERFORMANCE INDICATORS: INPUTS/RESOURCES In order to accomplish proposed activities, the Developer will need the following: ACTIVITIES In order to address the issue, the Developer will conduct the following activities: OUTPUTS Once completed, these activities will produce the following: OUTCOMES When completed, these activities will lead to the following changes: IMPACT Long-term changes: HOME-ARP and ARPA funding Acquire land in the West Valley and construction 45 multifamily rental community and provide supportive services to those living in the community 45 units. 13 HOME-ARP NCS units. 21 ARPA affordable housing units. 11 un-assisted flex units. Expand affordable housing opportunities. Safe and decent housing for low-income households experiencing homelessness. Improved stability and self-sufficiency Safe, stable, and affordable housing and reducing homelessness in the west valley. Long- term sustainability of rental housing. Keep families connected to their West Valley community as contributing citizens. Contract No. C-22-24-076-X-01 Amendment No. 1 NAC El Mirage Housing, LLC. Developer Agreement Page 6 of 11 5.0 QUALIFIED POPULATIONS OF PROPOSED BENEFICIARIES Qualified Populations Number Individuals Number of Families Homeless At Risk of Homelessness Fleeing, or Attempting to Flee, Domestic Violence, Dating Violence, Sexual Assault, Stalking, or Human Trafficking Other Populations: (1) Other Families Requiring Services or Housing Assistance to Prevent Homelessness Other Populations: (2) At Greatest Risk of Housing Instability Veterans and Families that include a Veteran Family Member (that meets one of the preceding populations) None - prioritizing units serving all of the above 180 45 TOTAL 180 45 (Only required for Development of Affordable Housing) HOME-ARP Rental Housing Occupancy Requirements Number of Units Total Number of Units Percentage of Units HOME-ARP Units assisted based on status as qualifying household (Minimum 70%) 0 0 70% HOME-ARP Units assisted based on income eligibility (not to exceed 30%) 0 0 30% TOTAL 0 0 100% 6.0 PREFERENCES AMONG QUALIFYING POPULATIONS, REFERRAL METHODS AND SUBPOPULATIONS (1) Identify the intent to give preference to one or more qualifying populations or a subpopulation within one or more qualifying populations for any eligible activity or project: The Developer is not intending to give preference to one or more qualifying populations or subpopulations and will serve all qualifying populations. (2) Referral Methods for Project or Activity: The Developer will work directly with the Single and Family Coordinated Entry Lead Operating Agencies within Maricopa County to place west valley residents into NCS and rental housing. Internal referral methods may be adapted and are in the initial planning stages and program development. (3) Waitlist Procedures: The Developer will also work with the Single and Family Coordinated Entry Lead Operating Agencies for identification west valley individuals and families experiencing homelessness or at risk of homelessness. Applications will be accepted on a first come first served basis and will be screened for eligibility. The Developer will maintain a point of contact with the west valley cities and towns where referrals can be made, and available units can be shared. Contract No. C-22-24-076-X-01 Amendment No. 1 NAC El Mirage Housing, LLC. Developer Agreement Page 7 of 11 7.0 PERFORMANCE REPORTING GOALS-TIMELINE OF ACTIVITIES: MILESTONES START DATE COMPLETION DATE Contract Executed February 2024 March 2024 Environmental Reviews January 2024 June 2024 Property Acquisition December 2023 July 2024 Civil Permits February 2024 March 2025 Building Permits April 2024 March 2025 Construction 25% Complete March 2025 June 2025 Construction 50% Complete July 2025 November 2025 Construction 75% Complete December 2025 March 2026 Construction 100% Complete April 2026 July 2026 100% Occupancy November 2025 November 2026 HOME-ARP Supportive Services January 2026 December 2026 ARPA funds fully expended May 2024 December 2026 HOME-ARP funds fully expended May 2024 December 2026 Any change to the Timeline will need to be submitted to and approved by Maricopa County. 8.0 ACTIVITY BUDGET SUMMARY: COSTS HOME-ARP FUNDS HOME- ARP ADMIN ARPA Additional Sources* (defined in Table 9) TOTAL COST Property Acquisition $1,950,000 $1,950,000 Pre-development $1,184,057 $1,184,057 Hard Construction Costs $4,924,214 $6,939,924 $3,923,292 $15,787,430 Supportive Services $306,226 $909,756 $6,235,575 $7,451,557 Reserves $280,086 $280,086 Misc. Soft Costs $509,145 $509,145 Developer Fees $1,311,047 $1,311,047 TOTAL $5,230,440 $909,756 $10,583,126 $11,250,000 $28,473,322 Contract No. C-22-24-076-X-01 Amendment No. 1 NAC El Mirage Housing, LLC. Developer Agreement Page 8 of 11 9.0 SOURCE AND AMOUNT OF OTHER RESOURCES: FUNDING AGENCY CASH AMOUNT VOLUNTEER/ IN-KIND AMOUNT ADOH – Housing Trust Fund (Development Costs) $3,408,867 N/A ADOH – Housing Trust Fund (Supportive Services) $1,250,000 N/A ADOH – Housing Trust Fund (Reserves) $280,086 N/A ADOH – Housing Trust Fund (Developer Fees) $1,311,047 N/A LISC – Home Matters (Development Costs) $500,000 N/A Bezos Foundation Equity (Development Costs) $14,425 N/A Bezos Foundation Equity (Supportive Services) $4,985,575 N/A TOTAL $11,750,000 10.0 MATCH: Matching Contribution Requirements. The requirements of 24 CFR 92.218 through 24 CFR 92.222 and any other requirements for matching contributions in 24 CFR part 92 shall not apply to HOME-ARP funds, as subsection (c)(1) of ARP states that the underlying statutory requirement at section 220 of NAHA (42 U.S.C. 12750) does not apply to HOME- ARP funds. Matching funds shall not apply to ARPA funds. 11.0 HOME MAX SUBSIDY: Per CPD Notice 21-10 the HOME max subsidy limit is waived for HOME-ARP. Max subsidy does not apply to ARPA. 12.0 PROPERTY STANDARDS Housing that is constructed or rehabilitated with HOME funds must meet all applicable federal, state, and local codes, rehabilitation and construction standards, ordinances, and zoning ordinances, including Section 504 of the Rehabilitation Act of 1973 and Fair Housing Act, as amended, at the time of project completion. All work will meet decent, safe, and sanitary housing standards consistent with HOME regulations including HUD Uniform Property Conditions Standards (UPCS) and Maricopa County Housing Rehabilitation Standards. These standards are available on the Maricopa County website under Housing & Community Development or upon request. 13.0 OCCUPANCY REQUIREMENTS The Developer staff will determine and verify income eligibility of tenants for the HOME- ARP and ARPA assisted-units prior to occupancy of a unit. The occupancy of the County HOME assisted units must be by households whose income is at or below 60% AMI or the required qualifying populations throughout the Period of Affordability. The Developer will define “Annual Income” as it is defined at 24 CFR Part 92 and will document sources of income and examine eligibility on an annual basis in order to meet requirements of HOME regulations at 24 CFR Part 92.203. Contract No. C-22-24-076-X-01 Amendment No. 1 NAC El Mirage Housing, LLC. Developer Agreement Page 9 of 11 14.0 AFFORDABLITY PERIOD The Developer will ensure that all housing assisted under this Agreement meets the affordability requirements of 24 CFR § 92.252, as applicable. The period of affordability for the HOME-ARP-Assisted NCS units is 10 years after which the units can transition to HOME-ARP Affordable Housing units per CPD Notice 21-10 for a period of 5 years with an additional extend commitment period of 15 years, totaling 30 years. The Period of Affordability for the ARPA-Assisted Units will be 30 years. 15.0 METHODS AND INSTRUMENTS USED FOR ENSURING AFFORDABLITY (1) Recapture provision. The HOME-ARP and ARPA funds used for development will be secured by a Deed of Trust, Promissory Note, and Declaration of Land Use Restrictions for a term of 30 years. The County utilizes a recapture provision that will require the HOME-ARP funds to be repaid in full by the Developer if the unit is determined to be no longer eligible. Funds to be repaid will be based on the entire amount of HOME-ARP and ARPA subsidy that was originally used to purchase and construct the project. All units are secured by a Deed of Trust and Promissory Note. (2) The Developer and County shall assemble a loan package comprised of an agreed upon Deed of Trust, Promissory Note, Declaration of Land Use Restrictions, and any other documents required to secure the obligation required by the County, other Lenders lending to the Project, or Title Agency. (3) Prior to any funds being disbursed, Developer shall deliver to the County a fully authorized and executed Declaration of Land Use Restrictions, and a Deed of Trust, which documents shall be recorded in the Maricopa County Recorder’s Office, to attach to the Project. Declaration and Land Use Restrictions shall bind the property of the Project to provide affordable housing to the tenants who are to reside in the Project during the entirety of the Affordability Period and extended commitment period. In no event shall said Declaration be removed of record or modified in any manner without the prior written consent of the County. 16.0 INCOME LIMITS, RENT LIMITS & UTILITY ALLOWANCE (1) Income & Rent Limits - HOME-ARP and ARPA-Assisted units Rents will be at or below the Low HOME rent and rents will be at or below 30% of tenant’s gross income. Updated HOME income and rent limits from the Maricopa County Housing & Community Development division are available on an annual basis. These limits are adjusted annually by the U.S. Department of Housing & Urban Development (HUD). The Developer can request the updated limits from the County or by going to https://www.maricopa.gov/3893/Notices-Documents or going to HUD’s website for the updated versions each year. (2) Utility Allowance Determination - A utility allowance must be used when determining all eligible unit rents only if, and only for, utilities that are paid directly by the resident. If all utilities are provided by the owner/agent, there is no utility allowance. A copy of the current utility allowance schedule must be submitted to the County each year with the Annual Report. It is noted that utility allowance schedules often remain the same from year to year. If the table has not changed, the owner/agent should include a copy of a letter so stating from the appropriate authority dated in the calendar year covered by the annual report. If a project is receiving both ARPA and LIHTC funding, a County may coordinate with the LIHTC Contract No. C-22-24-076-X-01 Amendment No. 1 NAC El Mirage Housing, LLC. Developer Agreement Page 10 of 11 agency to obtain a project-specific agency estimate or may accept a UA approved by the LIHTC agency based on its actual usage methodology. 17.0 ANNUAL INCOME DETERMINATION The HOME regulations at 92.203(a) Require the income eligibility of applicants to be determined by examining source documentation which provides evidence of annual income, such as: wage statements, interest statements, and unemployment compensation statements. 18.0 AFFIRMATIVE MARKETING Per 92.351 The developer will adopt maintain an Affirmative Marketing Policy and procedures which follow the County’s Affirmative Marketing Policy and procedures. The public, property owners, and potential tenants will be informed about the responsibilities of the Project in complying with Fair Housing Act and Affirmative Marketing, regulations, and the goal of attracting persons from all racial, ethnic, and gender groups in the housing market area to the available housing. This policy applies equally to all recipients of HOME- ARP and ARPA funds. The HOME-ARP and ARPA funds defer to the HOME Regulations regarding Fair Housing and Equal Opportunity (Title VI of the Civil Rights Act of 1964, As Amended, The Fair Housing Act, Equal Opportunity in Housing (Executive Order 11063, As Amended by Executive Order 12259), and the Age Discrimination Act of 1975, As Amended; (https://www.hud.gov/program_offices/fair_housing_equal_opp) and Affirmative Marketing (24 CFR Part 92.253(d); 2 CFR Part 92.351(a); HUD Executive Orders 11625, 12432, 12138). 19.0 MONITORING Not later than July 30 of each year and continuing until the expiration of the Affordability Period or extended commitment period, unless otherwise determined by the Human Services Department but not to exceed a 5-year period per 2 CFR Part 200.330. Developer shall provide to the County: (1) A copy of the then current rent rolls. (2) Proof that all residents of the Project are qualified by income to reside in the Project. (3) A copy of the then current forms of lease required to be executed by residents of the Project. (4) Such other information as, in the sole discretion of the County, is necessary to demonstrate to the County that all requirements with respect to affordability are satisfied. (5) Schedule with the County an inspection to allow the County to ensure all units are in compliance with Housing Quality Standards (HQS) 20.0 PROHIBITED LEASE PROVISIONS The HOME-ARP and ARPA funded units will defer to HOME Regulations regarding prohibited lease terms. Pursuant to 24 CFR 92.253(b), the following terms are prohibited from inclusion in leases of HOME-ARP and ARPA- assisted. units: for the period of affordability and extended commitment period 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. Contract No. C-22-24-076-X-01 Amendment No. 1 NAC El Mirage Housing, LLC. Developer Agreement Page 11 of 11 (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 assisted unit.