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SERIAL 220166-RFP
AFFORDABLE HOUSING DEVELOPMENT OPPORTUNITIES
220166-RFP
This contract is entered into this _____ day of ____________, 20__ by and between Maricopa County
(“County”), a political subdivision of the State of Arizona, and _______________________________, an
Arizona corporation (“Contractor”).
1.0
CONTRACT TERM
This contract is for a term of XX months, beginning on the DAY of MONTH, YEAR and ending the
30th day of JUNE 2024.
2.0
OPTION TO RENEW
The County may, at its option and with the concurrence of the Contractor, renew the term of this
contract up to a maximum of two years and six months. The Contractor shall be notified in writing
by the Office of Procurement Services of the County’s intention to renew the contract term at least
60 calendar days prior to the expiration of the original contract term.
3.0
CONTRACTOR’S TERM
The Contractor’s term is 30 years from the date of acceptance of Certificate of Occupancy.
(“Contractor” will be referred to in Exhibit C – Developer Agreement as “Developer”)
4.0
CONTRACT COMPLETION
In preparation for contract completion, the Contractor shall make all reasonable efforts for an
orderly transition of its duties and responsibilities to another provider and/or to the County. This
may include, but is not limited to, preparation of a transition plan and cooperation with the County
or other providers in the transition. The transition includes the transfer of all records and other data
in the possession, custody, or control of the Contractor that are required to be provided to the
County either by the terms of this agreement or as a matter of law. The provisions of this clause
shall survive the expiration or termination of this agreement.
5.0
AVAILABILITY OF FUNDS
5.1
The provisions of this contract relating to payment for services shall become effective when
funds assigned for the purpose of compensating the Contractor as herein provided are
actually available to County for disbursement. The County shall be the sole judge and
authority in determining the availability of funds under this contract. County shall keep the
Contractor fully informed as to the availability of funds.
5.2
If any action is taken by, any State agency, Federal department, or any other agency or
instrumentality to suspend, decrease, or terminate its fiscal obligations under, or in
connection with, this contract, County may amend, suspend, decrease, or terminate its
obligations under, or in connection with, this contract. In the event of termination, County
shall be liable for payment only for services rendered prior to the effective date of the
Commented [EK(1]: BOS award date
SERIAL 220166-RFP
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Developer Initial County Initial
termination, provided that such services are performed in accordance with the provisions
of this contract. County shall give written notice of the effective date of any suspension,
amendment, or termination under this section, at least 10 days in advance.
6.0
DUTIES
The Contractor shall perform all duties stated in Exhibit B – Scope of Work, or as otherwise directed
in writing by the Department of Housing, and the procurement officer (as applicable).
7.0
TERMS AND CONDITIONS
7.1
INDEMNIFICATION
7.1.1
To the fullest extent permitted by law, and to the extent that claims, damages,
losses, or expenses are not covered and paid by insurance purchased by the
Contractor, the Contractor shall defend, indemnify, and hold harmless the County
(as Owner), its agents, representatives, officers, directors, officials, and employees
from and against all claims, damages, losses, and expenses (including, but not
limited to attorneys' fees, court costs, expert witness fees, and the costs and
attorneys' fees for appellate proceedings) arising out of, or alleged to have resulted
from, the negligent acts, errors, omissions, or mistakes relating to the performance
of this contract.
7.1.2
Contractor's duty to defend, indemnify, and hold harmless the County, its agents,
representatives, officers, directors, officials, and employees shall arise in
connection with any claim, damage, loss, or expense that is attributable to bodily
injury, sickness, disease, death, or injury to, impairment of, or destruction of
tangible property, including loss of use resulting therefrom, caused by negligent
acts, errors, omissions, or mistakes in the performance of this contract, but only to
the extent caused by the negligent acts or omissions of the Contractor, a
subcontractor, anyone directly or indirectly employed by them, or anyone for
whose acts they may be liable, regardless of whether or not such claim, damage,
loss, or expense is caused in part by a party indemnified hereunder.
7.1.3
The amount and type of insurance coverage requirements set forth herein will in
no way be construed as limiting the scope of the indemnity in this section.
7.1.4
The scope of this indemnification does not extend to the sole negligence of County.
7.2
INSURANCE
7.2.1
Contractor, at Contractor’s own expense, shall purchase and maintain, at a
minimum, the herein stipulated insurance from a company or companies duly
licensed by the State of Arizona and possessing an AM Best, Inc. category rating
of B++. In lieu of State of Arizona licensing, the stipulated insurance may be
purchased from a company or companies, which are authorized to do business in
the State of Arizona, provided that said insurance companies meet the approval of
County. The form of any insurance policies and forms must be acceptable to
County.
7.2.2
All insurance required herein shall be maintained in full force and effect until all
work or service required to be performed under the terms of the contract is
satisfactorily completed and formally accepted. Failure to do so may, at the sole
discretion of County, constitute a material breach of this contract.
7.2.3
In the event that the insurance required is written on a claims-made basis,
Contractor warrants that any retroactive date under the policy shall precede the
SERIAL 220166-RFP
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Developer Initial County Initial
effective date of this contract and either continuous coverage will be maintained,
or an extended discovery period will be exercised for a period of two years
beginning at the time work under this contract is completed.
7.2.4
Contractor’s insurance shall be primary insurance as respects County, and any
insurance or self-insurance maintained by County shall not contribute to it.
7.2.5
Any failure to comply with the claim reporting provisions of the insurance policies
or any breach of an insurance policy warranty shall not affect the County’s right to
coverage afforded under the insurance policies.
7.2.6
The insurance policies may provide coverage that contains deductibles or self-
insured retentions. Such deductible and/or self-insured retentions shall not be
applicable with respect to the coverage provided to County under such policies.
Contractor shall be solely responsible for the deductible and/or self-insured
retention and County, at its option, may require Contractor to secure payment of
such deductibles or self-insured retentions by a surety bond or an irrevocable and
unconditional letter of credit.
7.2.7
The insurance policies required by this contract, except Workers’ Compensation
and Errors and Omissions, shall name County, its agents, representatives, officers,
directors, officials, and employees as additional insureds.
7.2.8
The policies required hereunder, except Errors and Omissions, shall contain a
waiver of transfer of rights of recovery (subrogation) against County, its agents,
representatives, officers, directors, officials, and employees for any claims arising
out of Contractor’s work or service.
7.2.9
If available, the insurance policies required by this contract may be combined with
Commercial Umbrella Insurance policies to meet the minimum limit requirements.
If a Commercial Umbrella insurance policy is utilized to meet insurance
requirements, the Certificate of Insurance shall indicate which lines the
Commercial Umbrella Insurance covers.
7.2.9.1
Commercial General Liability
Commercial General Liability (CGL) insurance and, if necessary,
Commercial Umbrella insurance with a limit of not less than $2,000,000
for each occurrence, $4,000,000 Products/Completed Operations
Aggregate, and $4,000,000 General Aggregate Limit. The policy shall
include coverage for premises liability, bodily injury, broad form property
damage, personal injury, products and completed operations and
blanket contractual coverage, and shall not contain any provisions which
would serve to limit third party action over claims. There shall be no
endorsement or modifications of the CGL limiting the scope of coverage
for liability arising from explosion, collapse, or underground property
damage.
7.2.9.2
Errors and Omissions/Professional Liability Insurance
Errors and Omissions (Professional Liability) insurance which will insure
and provide coverage for errors or omissions or professional liability of
the Contractor, with limits of no less than $2,000,000 for each claim.
7.2.9.3
Environmental/Pollution
SERIAL 220166-RFP
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Developer Initial County Initial
Contractor shall maintain Commercial General Liability Insurance (CGL)
and, if necessary, Commercial Umbrella Insurance with a limit of not less
than
$2,000,000
for
each
occurrence
with
a
$4,000,000
Products/Completed Operations Aggregate and a $4,000,000 General
Aggregate Limit. The policy shall include coverage for bodily injury,
broad form property damage, personal injury, products and completed
operations, environmental and pollution damage, and blanket
contractual coverage including, but not limited to, the liability assumed
under the indemnification provisions of this contract.
7.2.9.4
Builder’s Risk (Property) Insurance
Contractor shall purchase and maintain, on a replacement cost basis,
Builders’ Risk insurance and, if necessary, Commercial Umbrella
insurance in the amount of the initial contract amount, as well as
subsequent modifications thereto for the entire work at the site. Such
Builders’ Risk insurance shall be maintained until final payment has
been made or until no person or entity other than County has an
insurable interest in the property required to be covered, whichever is
earlier. This insurance shall include interests of County, Contractor, and
all subcontractors and sub‐subcontractors in the work during the life of
the contract and course of construction and shall continue until the work
is completed and accepted by County. For new construction projects,
Contractor agrees to assume full responsibility for loss or damage to the
work being performed and to the structures under construction. For
renovation construction projects, Contractor agrees to assume
responsibility for loss or damage to the work being performed at least up
to the full contract amount, unless otherwise required by the contract
documents or amendments thereto. Builders’ Risk insurance shall be on
a special form and shall also cover false work and temporary buildings
and shall insure against risk of direct physical loss or damage from
external causes including debris removal, and demolition occasioned by
enforcement of any applicable legal requirements, and shall cover
reasonable compensation for architect’s service and expenses required
as a result of such insured loss and other “soft costs” as required by the
contract. Builders’ Risk insurance must provide coverage from the time
any covered property comes under Contractor’s control and/or
responsibility, and continue without interruption during construction,
renovation, or installation, including any time during which the covered
property is being transported to the construction installation site and
while on the construction or installation site awaiting installation. The
policy will provide coverage while the covered premises or any part
thereof are occupied. Builders’ Risk insurance shall be primary, and any
insurance or self‐insurance maintained by the County is not contributory.
If the contract requires testing of equipment or other similar operations,
at the option of County, Contractor will be responsible for providing
property insurance for these exposures under a Boiler and Machinery
insurance policy or the Builders’ Risk Insurance policy.
7.2.10
Certificates of Insurance
7.2.10.5
Prior to contract award, Contractor shall furnish the County with valid
and complete Certificates of Insurance, or formal endorsements as
required by the contract in the form provided by the County, issued by
Contractor’s insurer(s), as evidence that policies providing the required
coverage, conditions and limits required by this contract are in full force
and effect. Such certificates shall identify this contract number and title.
SERIAL 220166-RFP
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Developer Initial County Initial
7.2.10.6
In the event any insurance policy(ies) required by this contract is (are)
written on a claims-made basis, coverage shall extend for two years past
completion and acceptance of Contractor’s work or services and as
evidenced by annual certificates of insurance.
7.2.10.7
If a policy does expire during the life of the Contract, a renewal certificate
must be sent to County 15 calendar days prior to the expiration date.
7.2.10.8
Certificate holder shall be identified as:
Maricopa County
c/o Risk Management
301 W Jefferson St., Suite 910
Phoenix, AZ 85003
7.2.11
Cancellation and Expiration Notice
Applicable to all insurance policies required within the insurance requirements of
this contract, Contractor’s insurance shall not be permitted to expire, be
suspended, be canceled, or be materially changed for any reason without 30 days
prior written notice to Maricopa County. Contractor must provide to Maricopa
County, within two business days of receipt, if they receive notice of a policy that
has been or will be suspended, canceled, materially changed for any reason, has
expired, or will be expiring. Such notice shall be sent directly to Maricopa County
Office of Procurement Services and shall be mailed, or hand delivered to
160 S. 4th Avenue, Phoenix, AZ 85003, or emailed to the procurement officer noted
in the solicitation.
7.3
TERMINATION FOR CONVENIENCE
Maricopa County may terminate the resultant contract for convenience by providing 60
calendar days advance notice to the Contractor.
7.4
TERMINATION FOR DEFAULT
7.4.1
The County may, by written Notice of Default to the Contractor, terminate this
contract in whole or in part if the Contractor fails to:
7.4.1.1
deliver the supplies or to perform the services within the time specified
in this contract or any extension;
7.4.1.2
make progress, so as to endanger performance of this contract; or
7.4.1.3
perform any of the other provisions of this contract.
7.4.2
The County’s right to terminate this contract under these subparagraphs may be
exercised if the Contractor does not cure such failure within 10 business days (or
more if authorized in writing by the County) after receipt of a Notice to Cure from
the procurement officer specifying the failure.
7.5
PERFORMANCE
It shall be the Contractor’s responsibility to meet the proposed performance requirements.
Maricopa County reserves the right to obtain services on the open market in the event the
Contractor fails to perform, and any price differential will be charged against the Contractor.
SERIAL 220166-RFP
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Developer Initial County Initial
7.6
STATUTORY RIGHT OF CANCELLATION FOR CONFLICT OF INTEREST
Notice is given that, pursuant to A.R.S. § 38-511, the County may cancel any contract
without penalty or further obligation within three years after execution of the contract, if any
person significantly involved in initiating, negotiating, securing, drafting, or creating the
contract on behalf of the County is at any time, while the contract or any extension of the
contract is in effect, an employee or agent of any other party to the contract in any capacity
or consultant to any other party of the contract with respect to the subject matter of the
contract. Additionally, pursuant to A.R.S. § 38-511, the County may recoup any fee or
commission paid or due to any person significantly involved in initiating, negotiating,
securing, drafting, or creating the contract on behalf of the County from any other party to
the contract arising as the result of the contract.
7.7
ASSIGNMENT
The Contractor may not assign to another Contractor or another party for performance of
the terms and conditions hereof without the written consent of the County. All
correspondence authorizing assignment must reference the contract serial number and
identify the job or project.
7.8
AMENDMENTS
All amendments to this contract shall be in writing and approved/signed by both parties.
Maricopa County Board of Supervisors shall be responsible for approving all amendments
for Maricopa County.
7.9
RIGHTS IN DATA
7.9.1
The County shall have the use of data and reports resulting from a contract without
additional cost or other restriction except as may be established by law or
applicable regulation. Each party shall supply to the other party, upon request, any
available information that is relevant to a contract and to the performance
thereunder.
7.9.2
Data, records, reports, and all other information generated for the County by a third
party as the result of a contract are the property of the County and shall be provided
in a format designated by the County or shall be and remain accessible to the
County into perpetuity.
7.10
ACCESS TO AND RETENTION OF RECORDS FOR THE PURPOSE OF AUDIT AND/OR
OTHER REVIEW
7.10.1
In accordance with Section MC1-373 of the Maricopa County Procurement Code,
the Contractor agrees to retain (physical or digital copies of) all books, records,
accounts, statements, reports, files, and other records and back-up documentation
relevant to this contract for six years after final payment or until after the resolution
of any audit questions, which could be more than six years, whichever is longest.
The County, Federal or State auditors and any other persons duly authorized by
the department shall have full access to and the right to examine, copy, and make
use of, any and all said materials.
7.10.2
If the Contractor’s books, records, accounts, statements, reports, files, and other
records and back-up documentation relevant to this contract are not sufficient to
support and document that requested services were provided, the Contractor shall
reimburse Maricopa County for the services not so adequately supported and
documented.
SERIAL 220166-RFP
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Developer Initial County Initial
7.11
AUDIT DISALLOWANCES
If at any time it is determined by the County that a cost for which payment has been made
is a disallowed cost, the County shall notify the Contractor in writing of the disallowance.
The course of action to address the disallowance shall be at sole discretion of the County,
and may include either an adjustment to future invoices, request for credit, request for a
check, or a deduction from current invoices submitted by the Contractor equal to the
amount of the disallowance, or to require reimbursement forthwith of the disallowed amount
by the Contractor by issuing a check payable to Maricopa County.
7.12
STRICT COMPLIANCE
Acceptance by County of a performance that is not in strict compliance with the terms of
the contract shall not be deemed to be a waiver of strict compliance with respect to all other
terms of the contract.
7.13
VALIDITY
The invalidity, in whole or in part, of any provision of this contract shall not void or affect
the validity of any other provision of the contract.
7.14
SEVERABILITY
The removal, in whole or in part, of any provision of this contract shall not void or affect the
validity of any other provision of this contract.
7.15
NON-DISCRIMINATION
Contractor agrees to comply with all provisions and requirements of Arizona Executive
Order 2009-09, including flow down of all provisions and requirements to any
subcontractors. Executive Order 2009-09 supersedes Executive Order 99-4 and amends
Executive Order 75-5 and is hereby incorporated into this contract as if set forth in full
herein. During the performance of this contract, Contractor shall not discriminate against
any employee, client, or any other individual in any way because of that person’s age, race,
creed, color, religion, sex, disability, or national origin. (Arizona Executive Order 2009-09
can
be
downloaded
from
the
Arizona
Memory
Project
at
http://azmemory.azlibrary.gov/cdm/singleitem/collection/execorders/id/680/rec/1.)
7.16
WRITTEN CERTIFICATION PURSUANT to A.R.S. § 35-393.01
If vendor engages in for-profit activity and has 10 or more employees, and if this agreement
has a value of $100,000 or more, vendor certifies it is not currently engaged in, and agrees
for the duration of this agreement to not engage in, a boycott of goods or services from
Israel. This certification does not apply to a boycott prohibited by 50 U.S.C. § 4842 or a
regulation issued pursuant to 50 U.S.C. § 4842.
7.17
DUNS NUMBER AND SYSTEM FOR AWARD MANAGEMENT REGISTRATION
Funding for activities under this contract are provided through under the American Rescue
Plan Act – Coronavirus State and Local Fiscal Recovery Funds Assistance Listing Number
(ALN) 21.027. All Contractors that receive Federal funding must obtain a Data Universal
Numbering System (DUNS) number through http://fedgov.dnb.com/webform. Contractor
must also be registered and remain current with the System for Award Management (SAM)
at www.sam.gov, a database of basic business information for Contractors that receive
Federal funds.
7.18
CERTIFICATION REGARDING DEBARMENT AND SUSPENSION
SERIAL 220166-RFP
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Developer Initial County Initial
7.18.1
The undersigned (authorized official signing on behalf of the Contractor) certifies
to the best of his or her knowledge and belief that the Contractor, its current
officers, and directors:
7.19.1.1
are not presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded from being awarded any
contract or grant by any United States department or agency or any
state, or local jurisdiction;
7.19.1.2
have not within a three-year period preceding this contract:
7.19.1.2.1
been convicted of fraud or any criminal offense in
connection with obtaining, attempting to obtain, or as the
result of performing a government entity (Federal, State or
local) transaction or contract; or
7.19.1.2.2
been convicted of violation of any Federal or State antitrust
statutes or conviction for embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false
statements, or receiving stolen property regarding a
government entity transaction or contract;
7.19.1.2.3
are not presently indicted or criminally charged by a
government entity (Federal, State or local) with commission
of any criminal offenses in connection with obtaining,
attempting to obtain, or as the result of performing a
government entity public (Federal, State or local)
transaction or contract;
7.19.1.3
are not presently facing any civil charges from any governmental entity
regarding obtaining, attempting to obtain, or from performing any
governmental entity contract or other transaction; and
7.19.1.4
have not within a three-year period preceding this contract had any
public transaction (Federal, State or local) terminated for cause or
default.
7.18.2
If any of the above circumstances described in the paragraph are applicable to the
entity submitting a bid for this requirement, include with your bid an explanation of
the matter including any final resolution.
7.18.3
The Contractor shall include, without modification, this clause in all lower tier
covered transactions (i.e. transactions with subcontractors or sub-subcontractors)
and in all solicitations for lower tier covered transactions related to this contract. If
this clause is applicable to a subcontractor or sub-subcontractor, the Contractor
shall include the information required by this clause with their bid.
7.19
VERIFICATION REGARDING COMPLIANCE WITH A.R.S. § 41-4401 AND FEDERAL
IMMIGRATION LAWS AND REGULATIONS
7.19.1
By entering into the contract, the Contractor warrants compliance with the
Immigration and Nationality Act (INA using E-Verify) and all other Federal
immigration laws and regulations related to the immigration status of its employees
and A.R.S. § 23-214(A). The Contractor shall obtain statements from its
subcontractors certifying compliance and shall furnish the statements to the
procurement officer upon request. These warranties shall remain in effect through
SERIAL 220166-RFP
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Developer Initial County Initial
the term of the contract. The Contractor and its subcontractors shall also maintain
Employment Eligibility Verification forms (I-9) as required by the Immigration Reform
and Control Act of 1986, as amended from time to time, for all employees performing
work under the contract and verify employee compliance using the E-Verify system
and shall keep a record of the verification for the duration of the employee’s
employment or at least three years, whichever is longer. I-9 forms are available for
download at www.uscis.gov.
7.19.2
The County retains the legal right to inspect documents of Contractor and
subcontractor employees performing work under this contract to verify compliance
with paragraph 7.20.1 of this section. Contractor and subcontractor shall be given
reasonable notice of the County’s intent to inspect and shall make the documents
available at the time and date specified. Should the County suspect or find that the
Contractor or any of its subcontractors are not in compliance, the County will
consider this a material breach of the contract and may pursue any and all remedies
allowed by law, including, but not limited to: suspension of work, termination of the
contract for default, and suspension and/or debarment of the Contractor. All costs
necessary to verify compliance are the responsibility of the Contractor.
7.20
CONTRACTOR EMPLOYEE WHISTLEBLOWER RIGHTS AND REQUIREMENT TO
INFORM EMPLOYEES OF WHISTLEBLOWER RIGHTS
7.20.1
The parties agree that this contract and employees working on this contract will be
subject to the Contractor employee whistleblower protections established by Title
41 U.S.C. § 4712 and Section 3.908 of the Federal Acquisition Regulation.
7.20.2
Contractor shall inform its employees in writing, in the predominant language of
the workforce, of employee whistleblower rights and protections under 41 U.S.C.
§ 4712, as described in Section 3.908 of the Federal Acquisition Regulation.
Documentation of such employee notification must be kept on file by Contractor
and copies provided to County upon request.
7.20.3
Contractor shall insert the substance of this clause, including this paragraph, in all
subcontracts over the simplified acquisition threshold ($250,000 as of fiscal year
2018).
7.21
CONTRACTOR LICENSE REQUIREMENT
7.21.1
The Contractor shall procure all permits, insurance, and licenses, and pay the
charges and fees necessary and incidental to the lawful conduct of his/her
business, and as necessary complete any requirements, by any and all
governmental or non-governmental entities as mandated to maintain compliance
with and remain in good standing. The Contractor shall keep fully informed of
existing and future trade or industry requirements, and Federal, State, and local
laws, ordinances, and regulations which in any manner affect the fulfillment of a
contract and shall comply with the same. Contractor shall immediately notify both
Office of Procurement Services and the department of any and all changes
concerning permits, insurance, or licenses.
7.22
INFLUENCE
7.22.1
As prescribed in MC1-1203 of the Maricopa County Procurement Code, any effort
to influence an employee or agent to breach the Maricopa County Ethical Code of
Conduct or any ethical conduct, may be grounds for disbarment or suspension
under MC1-902.
7.22.2
An attempt to influence includes, but is not limited to:
SERIAL 220166-RFP
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Developer Initial County Initial
7.23.1.1
A person offering or providing a gratuity, gift, tip, present, donation,
money, entertainment or educational passes or tickets, or any type of
valuable contribution or subsidy that is offered or given with the intent to
influence a decision, obtain a contract, garner favorable treatment, or
gain favorable consideration of any kind.
7.22.3
If a person attempts to influence any employee or agent of Maricopa County, the
chief procurement officer, or his designee, reserves the right to seek any remedy
provided by the Maricopa County Procurement Code, any remedy in equity or in
the law, or any remedy provided by this contract.
7.23
CONFIDENTIAL INFORMATION
7.23.1
Any information obtained in the course of performing this contract may include
information that is proprietary or confidential to the County. This provision
establishes the Contractor’s obligation regarding such information.
7.23.2
The Contractor shall establish and maintain procedures and controls that are
adequate to assure that no information contained in its records and/or obtained
from the County or from others in carrying out its functions (services) under the
contract shall be used by or disclosed by it, its agents, officers, or employees,
except as required to efficiently perform duties under the contract. The Contractor’s
procedures and controls, at a minimum, must be the same procedures and controls
it uses to protect its own proprietary or confidential information. If, at any time
during the duration of the contract, the County determines that the procedures and
controls in place are not adequate, the Contractor shall institute any new and/or
additional measures requested by the County within 15 business days of the
written request to do so.
7.23.3
Any requests to the Contractor for County proprietary or confidential information
shall be referred to the County for review and approval, prior to any dissemination.
7.24
PUBLIC RECORDS
Under Arizona law, all offers submitted and opened are public records and must be
retained by the County at the Maricopa County Office of Procurement Services. Offers shall
be open to public inspection and copying after contract award and execution, except for
such offers or sections thereof determined to contain proprietary or confidential information
by the Office of Procurement Services. If an offeror believes that information in its offer or
any resulting contract should not be released in response to a public record request, under
Arizona law, the offeror shall indicate the specific information deemed confidential or
proprietary and submit a statement with its offer detailing the reasons that the information
should not be disclosed. Such reasons shall include the specific harm or prejudice which
may arise from disclosure. The records manager of the Office of Procurement Services
shall determine whether the identified information is confidential pursuant to the Maricopa
County Procurement Code.
7.25
INTEGRATION
This contract represents the entire and integrated agreement between the parties and
supersedes
all
prior
negotiations,
proposals,
communications,
understandings,
representations, or agreements, whether oral or written, expressed, or implied.
7.26
UNIFORM ADMINISTRATIVE REQUIREMENTS
SERIAL 220166-RFP
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Developer Initial County Initial
By entering into this contract, the Contractor agrees to comply with all applicable provisions
of
Title
2,
Subtitle
A,
Chapter
II,
Part
200—UNIFORM
ADMINISTRATIVE
REQUIREMENTS, COST PRINCIPLES, AND AUDIT REQUIREMENTS FOR FEDERAL
AWARDS contained in Title 2 C.F.R. § 200 et seq.
7.27
GOVERNING LAW
This contract shall be governed by the laws of the State of Arizona. Venue for any actions
or lawsuits involving this contract will be in Maricopa County Superior Court, Phoenix,
Arizona.
7.28
SPECIAL TERMS AND CONDITIONS AGREEMENT
Special terms and conditions can be found in Exhibit C – SPECIAL TERMS AND
CONDITIONS AGREEMENT
7.29
INCORPORATION OF DOCUMENTS
7.29.1
The following are to be attached to and made part of this Contract:
7.30.1.1
EXHIBIT A – CONTRACTOR INFORMATION
7.30.1.2
EXHIBIT B – STATEMENT OF WORK
7.30.1.2.1
Attachment B1: Project Description
7.30.1.2.2
Attachment B2: Budget
7.30.1.2.3
Attachment B3: Project Schedule
7.30.1.2.4
Attachment B4: Budget Amendment Request Form
7.30.1.2.5
Attachment B6: HOME Income and Rent Limits
7.30.1.2.6
Attachment B7: Utility Allowances
7.30.1.3
EXHIBIT C – SPECIAL TERMS AND CONDITIONS AGREEMENT
7.30.1.4
EXHIBIT D – ADDITIONAL PROCEDURES/FORMS
7.30.1.4.1
Attachment D1: Affirmative Marketing and Fair Housing
Policies and Procedures
7.30.1.4.2
Attachment D2: Occupancy Restrictions and Project Unit
Characteristics
7.30.1.4.3
Attachment D3: Prohibited Lease Provisions
7.30.1.4.4
Attachment D4: Request for Reimbursement Procedures
7.30.1.4.5
Attachment D5: Sample Request for Reimbursement Cover
Letter
7.30.1.4.6
Attachment D6: Request for Reimbursement Form
7.30.1.4.7
Attachment D7: Rental Set Up and Completion Form
7.30.1.4.8
Attachment D9: Annual Rental Compliance Report
7.30.1.5
EXHIBIT E – SECURITY INSTRUMENTS
7.30.1.5.1
Attachment E1: Sample Declaration and Assignment of
Affirmative Land Use; Deed of Trust; Promissory Note;
Subordination Agreement
7.30.1.5.2
Attachment E2: Sample ALTA / NSPS Land Title Survey
7.30
NOTICES
All notices given pursuant to the terms of this contract shall be addressed to:
For County:
SERIAL 220166-RFP
__________ __________
Developer Initial County Initial
Maricopa County Human Services Department
Housing and Community Development
234 N. Central Ave., Third Floor,
Phoenix, AZ 85004
Attention: Rachel Milne, Assistant Director
Phone Number: 602-506-1528
OR
Maricopa County
Office of Procurement Services
160 S. 4th Avenue
Phoenix, Arizona 85003-1647
For Contractor:
7.31
INQUIRIES
7.31.1
Inquiries concerning information herein must be submitted prior to the question
deadline date/time posted in the e-procurement platform, Periscope S2G, using
the link in the “Q&A” tab.
7.31.2
Administrative telephone/email inquiries shall be addressed to:
ELIZABETH KUTTNER, PROCUREMENT OFFICER
TELEPHONE: (602) 506-0099
elizabeth.kuttner@maricopa.gov
7.31.3
Inquiries may be submitted by telephone but must be followed up in writing. No
oral communication is binding on Maricopa County.
[signature page follows]
SERIAL 220166-RFP
IN WITNESS WHEREOF, this contract is executed on the date set forth above.
CONTRACTOR
AUTHORIZED SIGNATURE
PRINTED NAME AND TITLE
ADDRESS
DATE
MARICOPA COUNTY
CHAIRMAN, BOARD OF SUPERVISORS
DATE
ATTESTED:
CLERK OF THE BOARD
DATE
APPROVED AS TO FORM:
DEPUTY COUNTY ATTORNEY
DATE
SERIAL 220166-RFP
EXHIBIT A-CONTRACTOR (DEVELOPER) INFORMATION
SERIAL 220166-RFP
EXHIBIT B – STATEMENT OF WORK
Attachment B1: Project Description
Project Description:
The Project as described herein, will utilize ARPA funds to construct a fifty-six (#) unit multi-family rental
housing project at 2102 E. Apache Boulevard in Tempe, Arizona (the “Property”). The ARPA funds, as well
as low-income housing tax credit funds (“LIHTC”), are to be used by The Project to construct one (1) building
containing fifty-six (56) units of affordable low-income housing. The ARPA funds provided under this
Agreement will be used by The Project in conjunction with LIHTC that the Project received in 2017. The
Project will benefit low-income families with an annual income at or below 60% of the median area income
(“AMI”). The funds will be used to construct two (2) ARPA-assisted “floating” units at the Property (“ARPA-
assisted units”). During the thirty (30) year Period of Affordability (as that term is defined in the Agreement),
the two (2) ARPA-assisted “floating” units shall consist of: (a) one (1) one-bedroom unit; and (b) one (1)
three-bedroom unit. The term “floating” in this Agreement shall be defined as set forth in 24 C.F.R. §
92.252(j). The income restrictions on the ARPA-assisted units must be maintained during the entire Period
of Affordability.
Project Eligibility:
Property Standards - Housing that is constructed or rehabilitated with HOME funds must meet all applicable
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 Housing Quality Standards and Maricopa County Housing Rehabilitation
Standards. These standards are available on the Maricopa County website under Housing & Community
Development or upon request.
Occupancy Requirements – The Project staff will determine and verify income eligibility of tenants for the
ARPA assisted-units prior to occupancy of a unit. The occupancy of the ARPA-assisted units must be by
households whose income is at or below 60% AMI (very low income) throughout the Period of Affordability;
see Exhibit A, Attachment 12: HOME Income and Rent Limits. The Project will define “Annual Income”
as it is defined at 24 C.F.R. 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 C.F.R. Part 92.203. Additional
guidance and resources are outlined in Exhibit A, Attachment 14: Annual Income Documentation.
Rental Requirements - The ARPA-assisted units will be designated as Low HOME units, which are outlined
in Exhibit A, Attachment 12: HOME Income and Rent Limits. Utility Allowances are outlined in Exhibit
A, Attachment 13: Utility Allowances. The Low HOME rent limit is the maximum rent allowed for a ARPA-
assisted unit; the maximum rent amount includes the utility allowance. The initial rents for the ARPA-
assisted units shall be the lesser of the HOME rent limits provided in Exhibit A, Attachment 12 or the rents
limits established by the State of Arizona for the Low Income Housing Tax Credit program which the Project
is receiving funding from. Any increase in the lesser of these rent limits must be approved by HUD and the
State of Arizona Department of Housing. You will provide to us a written request for the increase in rent
limits and supporting documentation for the justification of this request.
Affordability Period – You will ensure that all housing assisted under this Agreement meets the affordability
requirements of 24 C.F.R. § 92.254 or § 92.252, as applicable.
Deliverables
Beneficiaries
Number of households (units)
2
Number of people (approximate)
5
Use of ARPA Funds - The ARPA funds provided under this Agreement shall be used for the cost detailed
in the budget found in Attachment 2.
SERIAL 220166-RFP
EXHIBIT B – STATEMENT OF WORK
Attachment B2: Budget
FUND SOURCES
Sources
Total
Maricopa County – ARPA
Loan
$300,000
LIHTC Equity
$14,248,575
$29,584,317
BUDGET SUMMARY
Name of Activity:
ARPA Funds
Additional
Sources
TOTAL COST
Acquisition Costs
Land
$ -
Building Acquisition
$ -
$ -
$ -
Other: taxes, title, recording
$ -
$ -
$ -
General Development Costs
Construction Hard Costs- Residential
$ -
$ -
$ -
Construction Costs- Nonresidential
$ -
$ -
$ -
Contractor OH, Profit, and Gen. Conditions
$ -
$ -
$ -
Hard Costs Contingency
$ -
$ -
$ -
Environmental- inspection and remediation
$ -
$ -
Demolition
$ -
$ -
$ -
Site Planning
$ -
$ -
$ -
Architect Fees
$ -
$ -
$ -
Engineering Fees
$ -
$ -
$ -
Survey, Permit, Tests
$ -
$ -
$ -
Legal Fees
$ -
$ -
$ -
Other Professional Fees
$ -
$ -
$ -
Accounting and Cost Certification
$ -
$ -
$ -
Title and Recording
$ -
$ -
$ -
Market Study/Appraisal
$ -
$ -
$ -
Real Estate Taxes
$ -
$ -
$ -
Insurance
$ -
$ -
$ -
Construction Period Interest
$ -
$ -
$ -
Construction Financing Fees
$ -
$ -
$ -
Marketing Expense
$ -
$ -
$ -
Reserves
$ -
$ -
$ -
Soft Cost Contingency
$ -
$ -
$ -
Other:
$ -
$ -
$ -
Developer’s Fee
Developer’s Fee
$ -
$ -
$ -
Homeownership Counseling
Counseling fee
$ -
$ -
$ -
SERIAL 220166-RFP
__________ __________
Developer Initial County Initial
Program Administration Costs*
Program Management Services
$ -
$ -
$ -
Staff
$ -
$ -
$ -
Supportive Services
$ -
$ -
$ -
$ -
$ -
$ -
$ -
$ -
$ -
$ -
$ -
$ -
TOTALS
$ -
$ -
$ -
SERIAL 220166-RFP
EXHIBIT B – STATEMENT OF WORK
Attachment B3: Project Schedule
Project Milestone
Estimated
Completion
Date
Comments
Site Acquisition
Construction Loan (Closing Date)
Partnership Closing (Closing Date)
Permanent Loan Commitment
Permanent Loan Closing
Other Funds Firm Commitment
Source:
Other Funds Firm Commitment
Source:
Environmental Review
Completion
Authority to Use Grant Funds
Zoning Entitlements
Plans Submitted to the
Municipality
Civil Permits Issued
Building Permits Issued
Contractors Notice to Proceed
Issued
Construction Mobilization
25% Completion
50% Completion
75% Completion
Certificate of Occupancy
ARPA-Assisted Units Occupied
100% Occupancy
SERIAL 220166-RFP
EXHIBIT B – STATEMENT OF WORK
Attachment B4: Budget Amendment Request Form
Please complete the form below to be considered for an Agreement amendment. This
form must be completed for each type of amendment requested.
Requested Amendment for:
Project Number
Developer
Program Representative
Person Completing Form
Contact Number
Extension of Contract End Date
Original Contract End Date
Current Contract End Date (including approved extensions)
Proposed Contract End Date
Proposed grant funds to be carried over
$
From Program Year:
*Required Attachment
A revised implementation schedule showing when major milestones will be completed for each activity.
Change in Proposed Accomplishments (Please explain below)
Original
Proposed Changes
Project Summary
Provide a one-sentence
summary of the activity for which
you are requesting funds.
Primary Target
Group of Beneficiaries
Estimated Number Benefited
No. of People
No. of Housing Units
Other
Amendment to Scope of Work
Please include a description of the Original Scope of Work.
Please include a description of Proposed Amendment(s).
Budget
SERIAL 220166-RFP
__________ __________
Developer Initial County Initial
Any increase to total original grant amount requires Board of Supervisor’s Approval. No attachments are
required, but budget information must be included below.
Original Approved Budget
Proposed Amended Budget
Funds
Total Funds
Funds
Total Funds
**Please include the following for the amendment requested:
1. Identify the reasons for the proposed amendment(s).
2. Steps being taken to avoid any future amendment requests for the same reasons
I approve the amendment(s) requested to be incorporated into our current agreement. All other
provisions of the agreement shall remain unchanged.
Authorized Signature
Date
FOR OFFICE USE ONLY
Recommended for Approval
Not Recommended for Approval due to: _______________________________________
________________________________________
____________________________
Staff Signature
Date
________________________________________
______________________________
Assistant Director Signature
Date
SERIAL 220166-RFP
EXHIBIT B – STATEMENT OF WORK
Attachment B5: HOME Income and Rent Limits
Updated HOME income 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.
SERIAL 220166-RFP
EXHIBIT B – STATEMENT OF WORK
Attachment B6: Utility Allowances
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 agency
to obtain a project-specific agency estimate or may accept a UA approved by the LIHTC agency based on
its actual usage methodology.
__________ __________
Developer Initial County Initial
EXHIBIT C – SPECIAL TERMS AND CONDITIONS AGREEMENT
AGREEMENT BETWEEN
MARICOPA COUNTY
ADMINISTERED BY ITS
HUMAN SERVICES DEPARTMENT
AND
_______________________________
Contract Amount: $
Contract Start Date:
Funding Completion Date: June 30, 2024
Contract Termination Date: 30 years from the date of acceptance of Certificate of Occupancy
Contract Number:
CFDA Number: CFDA 21.027 American Rescue Plan Act Coronavirus State and Local Fiscal
Recovery Funds
DUNS Number:
This Agreement is made on _____________, 2022 by and between Maricopa County administered
by its Human Services Department, a political subdivision of the State of Arizona, hereinafter
“County,” and ___________________________, a _______________ of the State of
____________, hereinafter “Developer.” The County and the Developer may collectively be
referred to as the “parties” or individually as a “party.”
Recitals
WHERAS, the County is the recipient of funds from the United States of America pursuant
to the American Rescue Plan Act of 2021 (ARPA); and
WHEREAS, by Resolution adopted by the Maricopa County Board of Supervisors on
_____________, 2021, the sum of $30,000,000 of the ARPA funding has been allocated to the
Maricopa County Human Services Department (“HSD”) to facilitate the creation of affordable
housing within the County; and
WHEREAS, on __________________, County did solicit proposals from developers
seeking to obtain ARPA funds for projects that are to include affordable housing within the
County; and
WHEREAS, Developer, in response to said solicitation, did submit a proposal for a project
known as ____________________, and
WHEREAS, County has reviewed Developer’s proposal and has determined that said
proposal is eligible for funding pursuant to the criteria established by the County.
NOW THEREFORE, in consideration of the reciprocal promises contained in this
Agreement, and for other valuable and good consideration, which the parties acknowledge the
receipt and sufficiency of, the parties agree as follows:
1.
The above Recitals are incorporated herein as if fully set forth.
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Developer Initial County Initial
2.
The purpose of this Agreement is to set forth the terms and conditions pursuant to
which the County will provide to Developer money from the allocation of ARPA funds made
available to HSD, and to establish that the failure of Developer to abide by or perform any such
term or condition shall result in the breach of this agreement.
3.
The following words and phrases shall have the definitions set forth when used in
this Agreement:
a.
“Claim for reimbursement” means the process and procedures the Developer must
use to obtain the disbursal of the funds being provided pursuant to this Agreement.
b. “Contractor” means General Contractor, Architect, Engineer and all other licensed
professionals as well as all their respective subcontractors working on the Project.
c.
“Declaration” means a document executed by Developer and recorded in the office
of the Maricopa County recorder against the Project Property restricting units, or
some of them, in the Project as available only to residents who income qualify for
a period that is not shorter than thirty (30) years.
d. “Deed of Trust” means a security instrument executed by Developer and recorded
in the office of the Maricopa County Recorder that secures the repayment of the
funds advanced to the Developer under certain conditions set forth in the document.
e.
“Obligations Secured” means the Promissory Note, this Agreement and the
Declaration to be executed and, as appropriate, recorded in connection with
securing the repayment of the funds to Developer under certain conditions set forth
in those documents. “Period of Affordability” means all housing assisted under this
agreement will remain affordable for a term of thirty (30) years commencing on the
date any certificate of occupancy is issued to the Project.
f.
“Project” means_________________, all as submitted to the County by Developer
in response to the solicitation by the County on _________.
g. “Promissory Note” means a document evidencing Developer’s promise to repay
the funds advanced under certain conditions set forth in the document.
h. “Work” shall mean the acquisition of the property, the designing of the Project, the
obtaining of all necessary permits, approvals and land rights for the Project, the
overseeing of management of the Project, the completion of leases to qualified
tenants who shall reside in the Project and eligible on-site supportive services.
4.
Administration of the Agreement on behalf of the County shall be done by the
County, as defined in section 3, and all questions regarding the Agreement shall be directed to the
County. Formal execution of documents shall require approval from and execution by the
Maricopa County Board of Supervisors.
5.
Developer shall complete all Work as described on Exhibit B hereto and made a
part hereof.
SERIAL 220166-RFP
__________ __________
Developer Initial County Initial
6.
County shall provide funding to Developer, subject to the availability of funds, and
all terms and conditions of the Obligations Secured, in the amount of $ ,000,000.00, which
funding shall be used exclusively for Work. In no event shall any funding be provided as
reimbursement for monies paid of Work performed prior to the effective date of this Agreement.
Failure to meet the obligations of this Agreement may result in a demand for repayment of the
funds.
7.
Funding is contingent upon all housing in the Project complying with the
affordability requirements, that are further described on Exhibit C attached hereto and made a part
hereof. Failure to comply with the affordability requirements is a material breach of this
Agreement and Developer shall repay the County any and all funds invested for any purpose other
than funding compliant housing unit(s).
8.
Prior to any funds being disbursed, Developer shall deliver to the County a fully
authorized and executed Declaration and Assignment of Affirmative Land Use, and a Deed of
Trust, in a form that shall be recorded in the Maricopa County Recorder’s Office, to attach to the
Project. Declaration and Assignment of Affirmative Land Use 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. In no event shall said Declaration be removed of record or modified in
any manner without the prior written consent of the County. The form of Declaration and
Assignment of Affirmative Land Use is shown on Exhibit D attached hereto and made a part
hereof.
9.
Prior to any funds being disbursed, Developer shall deliver to the County a copy of
all proposed forms of lease that will be required to be executed by prospective residents of the
Project. No funds shall be disbursed unless and until the County approves all proposed forms of
lease.
10.
Funds shall be disbursed as repayment of costs for Work performed on or after the
effective date of this Agreement. At the discretion of the Maricopa County Board of Supervisors,
this date may be extended, but in no event shall this date be extended beyond December 31, 2026,
or such other date as may be established by the United States Government. To obtain such
repayment costs, Developer shall:
a.
Submit a claim for reimbursement. The payment procedures and sample forms for
a properly executed claim are shown on Exhibit X, attached hereto and made a part
hereof.
b. Submit a request for inspection of the Work performed.
c.
Not submit a claim for reimbursement until the funds are needed for payment
related to Work.
d. Submit its initial claim for reimbursement not later than 180 days from the effective
date of this Agreement.
e.
Not submit more than one claim for reimbursement in the same calendar month.
11.
Upon receipt of a claim for reimbursement from the Developer, the County shall:
SERIAL 220166-RFP
__________ __________
Developer Initial County Initial
a.
Review the claim for reimbursement to ensure compliance with applicable
requirements pursuant to this Agreement. The approval of payment based on a
claim for reimbursement is at the County’s discretion.
b. Notify the Developer of any deficiencies in the claim for reimbursement and
itemize what additional information, if any, is need.
c.
Conduct, if, in the opinion of the County it is necessary, an inspection of the Project.
d. Disburse all funds for which and to the extent of approval of the submitted claim
for reimbursement in the manner, amount, increment, and timeframe determined at
County’s discretion.
12.
Funding is contingent upon the availability of funds. If any action is taken by any
State agency, federal department or any other agency or instrumentality to suspend, decrease or
terminate its fiscal obligation under, or in connection with this Agreement, the County may amend,
suspend, decrease or terminate its obligations under or in connection with this Agreement. In the
event of termination, the County shall, subject to the provisions of paragraphs 10, 13, 15 and 16
hereof, disburse funds for Work performed prior to the effective date of the termination. The
County shall give written notice of the effective date of any suspension, amendment, or termination
under this Section at least ten (10) calendar days in advance.
13.
Prior to occupancy of the Project the total sum of all claims for reimbursement shall
not exceed ninety-five percent (95%) of total funding to Developer by the County pursuant to this
Agreement. Developer shall submit all claims for reimbursement, including the final claim for
reimbursement post issuance of the final certificate of occupancy, not later than June 30, 2024.
The term “occupancy” for purposes of obtaining the balance of funding for the Project, shall be as
defined on Exhibit XX attached hereto and made a part hereof. However, in no event shall the
balance of funds be released to Developer unless and until project beneficiaries are named and
income qualified.
14.
The County shall not be liable for any contracts entered into by Developer in
anticipation of receiving payments under this Agreement.
15.
Not later than July 30 of each year and continuing until the expiration of the
Affordability Period, Developer shall provide to the County:
a.
A copy of the then current rent rolls.
b. Proof that all residents of the Project are qualified by income to reside in the Project.
c.
A copy of the then current forms of lease required to be executed by residents of
the Project.
d. 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.
e.
Schedule with the County an inspection to allow the County to ensure all units are
SERIAL 220166-RFP
__________ __________
Developer Initial County Initial
in compliance with Housing Quality Standards (HQS).
16.
Notwithstanding any reporting obligations set forth herein, Developer shall provide
any and all progress reports attached to ARPA funding by the federal government, the State of
Arizona and/or the County. Furthermore, until “occupancy” of the Project as defined on Exhibit
XXX attached hereto and made a part hereof, Developer shall provide County with progress
reports not less frequently than 15 days after the end of each calendar quarter, providing the
information required by and on the form attached hereto as Exhibit YYY. In addition to the
obligations set forth in this Agreement, Developer shall, simultaneously with the reporting
obligation of the receiving entity, provide County with a copy of all reports and filings made with
the federal government and/or the State of Arizona and/or any municipality, with respect to the
Project.
17.
To the fullest extent permitted by law, and except for the willful misconduct of
County, Developer shall defend, hold harmless and indemnify County and all of its officers,
employees, agents, and volunteers from and against any and all damages, claims, losses, liabilities,
actions or expenses of any nature whatsoever (including, but not limited to attorneys’ fees, expert
witness fees, court costs, and attorneys’ fees and costs of appellate proceedings) (collectively
“Claims”) relating to, arising out of or alleged to have resulted from this Agreement.
18.
Developer shall comply with any and all federal, state and local statutes,
ordinances, resolution, regulations and rules, and any violation of any such law shall be deemed
to be a material breach of this Agreement. Specifically, Developer shall comply with all applicable
provisions of American Rescue Plan Act 2021 and the Coronavirus State and Local Fiscal
Recovery Funds.
19.
Prior to or simultaneously with the execution of the Agreement, Developer shall
provide to County documentation that the individual executing this Agreement on behalf of
Developer possesses legal authority to bind Developer.
20.
Developer shall not assign or otherwise transfer, in whole or in part, this Agreement
or any rights or duties under the Agreement without first obtaining written consent from the
County. Any assignment or transfer of this Agreement without such written consent will be null
and void any may be grounds for County to terminate the Agreement. No granting of consent to
any assignment will relieve Developer from any of its obligations and liabilities under this
Agreement. The terms, covenants and conditions of this Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective permitted successors and assigns.
21.
Any delay or failure to exercise any right or option in this Agreement does not
constitute a waiver of either party’s rights under this Agreement. Any failure or delay to exercise
a right does not release a party of any of the warranties or other obligations of the Agreement. No
right of this Agreement can be waived unless done so in writing by the waiving party. The County’s
acceptance of performance that is not in strict compliance with the terms herein does not constitute
waiver of strict compliance of future performance.
22.
This Agreement, along with its Exhibits and Attachments, represents all the terms
and conditions agreed on by the parties with respect to its subject matter. The Agreement replaces
and supersedes any previous agreements, representations, understandings, and negotiations of the
parties, oral or written, with respect to the subject matter of this Agreement.
SERIAL 220166-RFP
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Developer Initial County Initial
23.
Developer must receive prior written approval from the County for all Project
amendments involving changes in the scope of the work, completion dates of project phases,
location of approved activities, or budget.
24.
Modification to the terms or amendments to the Agreement shall only be done by
a written instrument signed by both parties.
25.
The parties shall execute and deliver all such documents and perform all such acts
as reasonably may be requested by the other party in order to conduct the activities described
herein and to enforce the applicable affordability requirements.
26.
Developer shall acknowledge the contribution of the County in all related
publications during the Term of this Agreement, which terms shall end on June 30, 2024.
Developer shall not use the name of Maricopa County in any other manner without prior written
consent. Developer shall not use the County of Maricopa logo in any publications, marketing, or
any other type of media without prior written authorization.
27.
The County is a public entity, subject to Arizona’s public records laws (A.R.S. §
39-121 et seq.) and any documents related to this Agreement may be subject to disclosure pursuant
to State law in response to a public records request or to subpoena or other judicial process.
28.
The effective date of this Agreement for all purposes where such date is referenced
herein shall be the date on which the Maricopa County Board of Supervisors signs this Agreement,
which date shall be inserted at the top of the first page hereof.
29.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original but all of which together shall constitute the same instrument. Electronic
signatures are acceptable as original signatures. This Agreement is contingent upon acceptance
and execution by the Maricopa County Board of Supervisors.
30.
This Agreement and the performance hereof shall be governed, interpreted,
construed and regulated by the laws of the State of Arizona. Any suit to enforce any provision of
this Agreement or to obtain any remedy with respect hereto shall only be brought in the Superior
Court of the State of Arizona, Maricopa County, and for this purpose each party hereby expressly
and irrevocably consents to venue and to the jurisdiction of said Court.
31.
If any term, covenant, condition or provision of this Agreement, or the application
thereof to any person or circumstance shall, at any time or to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such terms or provision to
persons or circumstances other than those as to which it is held invalid or unenforceable, shall not
be affected thereby, and each term, covenant, condition and provision of this Agreement shall be
valid and be enforceable to the fullest extent permitted by law.
32.
Except as to the term, if there is any conflict between the OPS contract and this
Special Terms and Conditions Agreement, in all events the OPS contract shall control.
SERIAL 220166-RFP
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Developer Initial County Initial
33.
Wherever herein the singular number is used, the same shall include the plural, and
the masculine gender shall include the feminine and neuter genders, and vice versa, as the context
dictates.
34.
This Agreement is contingent upon, and shall be become effective until, accepted
and executed by the Maricopa County Board of Supervisors.
EXHIBIT D- ADDITIONAL PROCEDURES/FORMS
Attachment D1: Affirmative Marketing and Fair Housing Policies 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 ARPA funds. The 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/seniors) and Affirmative Marketing (24 CFR
Part 92.253(d); 2 CFR Part 92.351(a); HUD Executive Orders 11625, 12432, 12138).
EXHIBIT D- ADDITIONAL PROCEDURES/FORMS
Attachment D2: Occupancy Restrictions and Project Unit Characteristics
This Attachment describes the specific affordability requirements and occupancy restrictions for the Project
required by the applicable program regulations and the project characteristics as described and represented
to the County by the Declarants in the materials described in Recital paragraph C. See I.R.C. § 42(f)(1).
The Project shall be operated and maintained according to the unit mix and with the amenities described
herein.
1.
Residential Rental Unit Mix. The Declarants acknowledges that the Project will contain 56 total
residential rental units of which, 0 are to be rented at market rates and 2 are County-Assisted Units. The
County-Assisted Units shall be unduplicated Floating Units
2.
Tenant Income and Rent Restrictions. The County-Assisted Units shall be rented to qualifying tenants
at the income levels and the rent limits described below:
[The following paragraphs may be deleted or revised as necessary to meet specific Project requirements]
a)
At least [2] units comprising [1] one-bedroom units and [1] three-bedroom unit in the Project shall be
Low Program Rent units and must be occupied by low-income households initially earning no more
than 50% of the area median income adjusted by family size with rents not to exceed the lesser of: (1)
the Fair Market Rent or (2) the Low Program Rent.
b)
For the purposes of distinguishing High Program Rent Units from Low Program Rent Units, increases
in tenant income are permitted as follows: In the event that the income of a tenant occupying a Low
Program Rent unit or a Very Low Program Rent unit increases but does not exceed 80% of the area
median income, that unit shall become a High Program Rent unit. To replace the Low Program Rent
unit or a Very Low Program Rent unit, the Declarants must rent the next available unit to a Low Program
Rent tenant or a Very Low Program Rent tenant as the case may be. The rent of the initial tenant whose
income has increased may be increased to the High Program Rent for the unit. This process shall not
increase the number of County-Assisted Units. If the tenant’s income increases above 80% of the area
median income, the unit shall still be considered to be a High Program Rent unit but the tenant’s rent
must be adjusted as described under paragraph 2(g), below. The next available unit of comparable size
or larger must be rented to tenants eligible for a County-Assisted Unit and the rent can be adjusted as
appropriate.
c)
Annual Recertification of Tenant Income: The Declarants must reexamine the income of tenants living
in County-Assisted Units at least annually. Each recertification must take place on the anniversary of
the original income evaluation and lease signing, unless the Declarants has adopted an annual
schedule to perform all verifications at the same time.
d)
Source Documentation – The ARPA fund will defer to The HOME regulations in 24 C.F.R. 92.203 for
the income eligibility of applicants to be determined by examining source documentation which provides
evidence of annual income. Verification of household income must be verified by the developer in
accordance with 24 CFR 92.203. The project shall obtain and keep as part of its records the required
documentation from the applicant for all ARPA-assisted units on an annual basis.
e)
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 ARPA- 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 ARPA 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 floating ARPA-assisted units. Developer will notify the County of any
requirements of LIHTC that conflict with the requirements of this Agreement; the parties agree to take
reasonable steps to remedy such conflicts if possible and necessary
3.
Supportive Services. The Declarants acknowledges that the following supportive services shall be
made available to tenants on the Project: Family Self-Sufficiency programming, case management and
outreach/education services.
SERIAL 220166-RFP
__________ __________
Developer Initial County Initial
4.
Amenities and Design Features. The Declarants acknowledges that the following amenities and design
features will be included in the Project upon completion of construction:
a)
Project parking will consist of [65] total spaces.
b)
Agreed upon Amenities for the project will be as follows:
c)
Agreed upon Design Features specifically installed in the project include:
EXHIBIT D- ADDITIONAL PROCEDURES/FORMS
Attachment D3: Prohibited Lease Provisions
The 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 ARPA- 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 ARPA- assisted unit.
Developer acknowledges and agrees that inclusion of any of these provisions in a ARPA- assisted lease
agreement, regardless of intent, is unenforceable.
EXHIBIT D- ADDITIONAL PROCEDURES/FORMS
Attachment D4: Request for Reimbursement Procedures
1.
Cover letter to County on the Developer’s letterhead, signed by the Project’s authorized
official/representative
2.
Status update of the project along with photos showing the progress of the construction
3.
Request for Reimbursement Form
4.
Certified Request for Payment from Contractor
5.
Contractor Invoices
6.
Proof of payment-cancelled checks or EFT’s for all receipts submitted
The County reserves the right to delay processing of reimbursements under this Agreement until
all required documents and back-up information is submitted to the County.
EXHIBIT D- ADDITIONAL PROCEDURES/FORMS
Attachment D5: Sample Request for Reimbursement Cover Letter
AGENCY LETTERHEAD
Date
Rachel Milne, Assistant Director
Maricopa County Human Services Department
234 North Central Avenue
Phoenix, AZ 85004
Re: Project Name:
Quarterly Report Enclosed _____
Contract Number: ________________ Payment Request Number: _________
Dear _________________:
This letter certifies that ( Agency Name )(“Project Name”) has complied with the requirements of the
Department of Housing and Urban Development, Maricopa County, the ARPA Program and our agreement
for reasonable and necessary costs of construction. The Project additionally certifies the files, including
project management documentation files, and financial documentation of expenditures incurred in
accordance with the program rules and regulations for eligible costs.
Therefore,
the
Project
respectfully
requests
reimbursement
of
funds
in
the
amount
of
$_________________ as established by the attached itemized expenditure invoice, other invoices, current
project status report, proof of payment and other supporting documentation. If you have any questions,
please contact me at _____________________.
Sincerely,
Signature: __________________________
Printed Name: _______________________
Title: _______________________________
Enclosures
EXHIBIT D- ADDITIONAL PROCEDURES/FORMS
Attachment D6: Request for Reimbursement Form
Page 3 of 41
EXHIBITS
This document is available in Excel format.
EXHIBIT D- ADDITIONAL PROCEDURES/FORMS
Attachment D7: Rental Set Up and Completion Form
EXHIBIT D- ADDITIONAL PROCEDURES/FORMS
Attachment D9: Annual Rental Compliance Report
A version of this form will be available in an Excel format.
EXHIBIT E-SECURITY INSTRUMENTS
Attachment E1: Sample Declaration and Assignment of Affirmative Land Use; Deed of
Trust; Promissory Note; Subordination Agreement
EXHIBIT E-SECURITY INSTRUMENTS
Attachment E2: Sample ALTA / NSPS Land Title Survey