GUADALUPE CDC AMENDMENT NO. 2.PDF
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Contract No. C-22-21-061-X-02 Amendment No. 2 Guadalupe Community Development Corporation Page 1 of 8 AMENDMENT NO. 2 TO THE DEVELOPER AGREEMENT BETWEEN MARICOPA COUNTY ADMINISTERED BY ITS HUMAN SERVICES DEPARTMENT AND GUADALUPE COMMUNITY DEVELOPMENT CORPORATION I. Maricopa County (“County”) administered by its Human Services Department and the Guadalupe Community Development Corporation (GCD) (“Developer”) entered into a financial Developer Agreement (“Agreement”) on or about November 23, 2020. The purpose of the Agreement is to provide funding to develop a single-family, affordable home for sale to a low-income family in Guadalupe. The County provided GCDC with $260,000 in 2020 HOME Investment Partnerships Program (HOME) funds from the U.S. Department of Housing and Urban Development (HUD). All work performed or costs incurred or expended shall be reimbursable through August 31, 2024. The County and the GCDC may be referred to individually as the “Party” and collectively referred to as the “Parties.” The Parties fully executed Amendment No. 1 on October 6, 2021, to add a 2021 Work Statement for the development of a single-family, affordable home for sale to a low-income family in Guadalupe. Amendment No. 1 also extended the term of the Agreement from August 31, 2024 to September 30, 2025. II. The Parties agree to enter into this Amendment No. 2 to amend the Agreement as follows: A. Revise Section 1 (General Provisions) to address the following paragraphs: 1. Paragraph 35.0 (INSURANCE), by deleting Subparagraphs 35.11 through 35.17 and replacing them with the following: 35.11 Commercial General Liability: Commercial General Liability insurance and, if necessary, Commercial Umbrella insurance with a limit of not less than $2,000,000 for each occurrence, $2,000,000 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. 35.12 Worker’s Compensation: 35.12.1Worker’s Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction of the Developer’s employees engaged in the performance of the work or services under this Agreement; and Employer’s Liability insurance of not less than $1,000,000 for each accident, $1,000,000 disease for each employee, and $1,000,000 disease policy limit. Contract No. C-22-21-061-X-02 Amendment No. 2 Guadalupe Community Development Corporation Page 2 of 8 35.12.2Developer waives all rights against County and its agents, representatives, officials, officers, directors, employees, volunteers, departments, agencies, boards, and commissions for recovery of damages to the extent these damages are covered by the Worker’s Compensation and Employer’s Liability or commercial umbrella liability insurance obtained by the Developer pursuant to this Agreement. 35.13 Sexual Molestation and Physical Abuse: 35.13.1When services involve working with children, elderly, or disabled individuals, the insurance requirements in the (sub)contract must include coverage for "sexual molestation and physical abuse." Coverage for this type of claim, or allegation, is excluded from standard general liability policies. Therefore, Developers whose services include working with or caring (or both) for children/elderly and disabled persons should have their policies specifically endorsed to include this coverage. 35.13.2The policy shall be endorsed to include coverage for sexual molestation and physical abuse at limits not less than $2,000,000.00 per occurrence and $4,000,000.00 aggregate. These limits may be included within a General Liability policy, Professional Liability policy or provided by separate endorsement with its own limits as required. Developer and its Subcontractors must provide the following statement on their Certificate(s) of Insurance: “Sexual molestation and physical abuse coverage is included.” Policies/certificates stating that “Sexual molestation and physical abuse coverage is not excluded” do not meet this requirement. 35.14 Certificates of Insurance: Upon execution of this Agreement, the Developer shall, and shall cause any of its Subcontractors, to furnish the County with valid and complete certificates of insurance, or formal endorsements as required by the Agreement, issued by the Developer’s insurer(s), as evidence that policies providing the required coverage, conditions and limits required by this Agreement are in full force and effect. Such certificates shall identify this Agreement by number and title. 35.15 Prior to commencing either work or services under this Agreement, the Developer shall have insurance in effect as required by the Agreement in the form provided by the County, issued by the Developer’s insurer(s), as evidence that policies providing the required coverage, conditions and limits required by this Agreement are in full force and effect. Such certificates shall be made available to the County with ten (10) business days after a request by the County. BY SIGNING THIS AGREEMENT, THE DEVELOPER AGREES TO THIS REQUIREMENT AND THAT FAILURE TO MEET THIS REQUIREMENT WILL RESULT IN CANCELLATION OF THIS AGREEMENT. 35.16 In the event any insurance policy(ies) required by this Agreement is (are) written on a “claims made” basis, coverage shall extend for two years past completion and acceptance of the Developer’s work or services and as evidenced by annual Certificates of Insurance. Contract No. C-22-21-061-X-02 Amendment No. 2 Guadalupe Community Development Corporation Page 3 of 8 35.17 If a policy does expire during the life of this Agreement, then a renewed Certificate of Insurance must be sent to the County forty- five (45) business days prior to the expiration date. 35.18 Cancellation and Expiration Notice: Insurance required under this Agreement shall not be permitted to expire, be canceled, or materially changed without thirty (30) business days prior written notice to the County. 35.19 If the Developer provides professional or semi-professional personal services under this Agreement for which malpractice or professional liability coverage is available, such as medical, psychiatric, or legal services, then the Developer shall carry minimum liability coverage of $2,000,000 each occurrence and provide the County with proof of coverage. 35.20 Subcontractor: The Developer’s certificate(s) shall include all Subcontractors as insureds under its policies or the Developer shall furnish to the County separate certificates for each Subcontractor. All coverages for Subcontractors shall be subject to the minimum requirements identified above. 35.21 Approval: Any modification or variation from the insurance requirements in any agreement must have prior approval from the County whose decision shall be final. Such action will not require a formal Amendment. Exceptions: In the event the Developer is a public entity, the Insurance Requirements shall not apply to such public entity. Such public entity shall provide a Certificate of Self-Insurance or a Certificate of Proof of Pool Insurance. Nongovernmental Subcontractors of the Developer shall comply with all insurance terms. 2. Paragraph 38.0 (NONDISCRIMINATION) delete in its entirety and replace with the following: 38.0 NONDISCRIMINATION, EQUAL OPPORTUNITY AND EQUAL ACCESS 38.1 The City, in connection with any services or other activities under this Agreement, shall not in any way discriminate against any person on the grounds of race, color, religion, sex, national origin, age, disability, political affiliation or belief. The City shall include this clause in all of its Subcontracts. 38.2 The City shall comply with requirements of the Housing and Urban Development Equal Access Rule at 24 C.F.R. Part 5, Final Rule 5863, to ensure equal access to housing and services regardless of gender identity. 3. Paragraph 46.0 (PROPERTY) delete in its entirety and replace with the following: 46.0 PROPERTY 46.1 Any County property furnished or purchased pursuant to the terms of this Agreement shall be utilized, maintained, repaired, and accounted for in accordance with instructions furnished by the County, and title to all such property shall revert to the County upon the expiration or termination of this Contract No. C-22-21-061-X-02 Amendment No. 2 Guadalupe Community Development Corporation Page 4 of 8 Agreement. The costs to repair such property are the responsibility of the Developer within the limits budgeted in this Agreement. 46.2 Any Developer property furnished or purchased pursuant to the terms of the Agreement shall be utilized, maintained, repaired, and accounted for by the Developer. Repair costs of such property shall be the responsibility of the Developer. 4. Paragraph 49.0 (EMPLOYMENT DISCLAIMER) delete in its entirety and replace with the following: 49.0 EMPLOYMENT DISCLAIMER 49.1 Any County property furnished or purchased pursuant to this Agreement is not intended to constitute, create, give rise to, or otherwise recognize a joint venture agreement, partnership, or other business association or organization of any kind between the Parties, and the rights and obligations of the Parties shall be only those expressly set forth in this Agreement. 49.2 The Developer agrees that no individual performing under this Agreement on behalf of the Developer may be considered a County agent, employee, or representative and that no rights of County civil service, County retirement, or County personnel rules shall accrue to or apply to any such individual. The Developer shall have total responsibility for all salaries, wages, bonuses, retirement, withholdings, workers’ compensation, occupational disease compensation, unemployment compensation, other employee benefits, and all taxes and premiums appurtenant thereto concerning such individuals and the Developer shall indemnify, defend, and hold harmless the County with respect thereto. 49.3 The County agrees that no individual performing under this Agreement on behalf of County may be considered a Developer agent, employee, or representative and that no rights of the Developer civil service, the Developer retirement, or the Developer personnel rules shall accrue to or apply to any such individual. The County shall have total responsibility for all salaries, wages, bonuses, retirement, withholdings, workers’ compensation, occupational disease compensation, unemployment compensation, other employee benefits, and all taxes and premiums appurtenant thereto concerning such individuals and the County shall indemnify, defend and hold harmless the Developer with respect thereto. 5. Paragraph 50.0 (CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION) delete in its entirety and replace with the following: 50.0 CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION 50.1 The undersigned, by signing this Agreement, represents that he/she has the authority to bind the Developer to the terms of this Certification. The Developer, as the primary participant in Contract No. C-22-21-061-X-02 Amendment No. 2 Guadalupe Community Development Corporation Page 5 of 8 accordance with 2 C.F.R. Part 180, certifies to the best of its knowledge and belief that it and its principals: 50.1.1 Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal department or agency; 50.1.2 Have not within a 3-year period preceding the Start Date of this Agreement, been convicted of or had a civil judgment rendered against them for (1) the commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, State, or local) transaction or contract under a public transaction; (2) the violation of any federal or State antitrust statutes or (3) the commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; 50.1.3 Are not presently indicted or otherwise criminally or civilly charged by a governmental entity (federal, state, or local) with the commission of any of the offenses enumerated in Sub-subparagraph 50.1.2 above; and 50.1.4 Have not, within a three-year period preceding this Start Date of this Agreement, had one or more public transactions (federal, state, or local) terminated for cause or default. 50.2 The Developer agrees to include, without modification, this clause in all lower tier covered transactions (i.e., transactions with Subcontractors) and in all solicitations for lower tier covered transactions related to this Agreement. 6. Paragraph 51.0 (CONTRACTOR EMPLOYEE WHISTLEBLOWER RIGHTS AND REQUIREMENT TO INFORM EMPLOYEES OF WHISTLEBLOWER RIGHTS) delete Subparagraph 51.3 and replace with the following: 51.3 The Developer shall insert the substance of this clause, including this Paragraph 51.0, in all subcontracts over the simplified acquisition threshold ($250,000 as of June 2021). B. Revise Section 2 (Special Provisions) to address the following paragraphs: 1. Paragraph 11.0 (ADMINISTRATIVE REQUIREMENTS) delete Sub-Sub- Sub-Subparagraph 11.1.2.1.11 and replace with the following: 11.1.2.1.11 Documenting compliance with Section 3 of the Housing and Urban Development Act of 1968 and implementing regulations at 24 C.F.R. § 75. 2. Paragraph 14.0 (SUBCONTRACTS AND VENDORS) delete Subparagraph 14.5 and replace with the following: 14.5 Section 3 of the Housing and Urban Development Act of 1968 – The Developer shall include the Section 3 clause in every Subcontract and shall take appropriate action pursuant to the Contract No. C-22-21-061-X-02 Amendment No. 2 Guadalupe Community Development Corporation Page 6 of 8 Subcontract upon a finding that a Subcontractor is in violation of regulations issued by HUD. The Developer shall not Subcontract with any entity where the Developer has notice or knowledge that the entity has been found in violation of the regulations under 24 C.F.R. § 75. The Developer has the responsibility of determining Section 3 eligibility. 3. Paragraph 18.0 (GENERAL CONDITIONS), delete Subparagraph 18.1 in its entirety and replace with the following: 18.1 Administrative Change Orders and Addenda – The Chairman of the Board of Supervisors is authorized upon the recommendation of the Human Services Department Director and Legal Counsel to: a.) make changes within the general scope of the Agreement on behalf of the County through Administrative Change Orders, and b.) identify the single-family properties that are subject of Section III (Work Statement), Paragraph 1.0 (Detailed Scope of Work) of this Agreement through Addenda. Both Administrative Change Orders and Addenda shall be approved and fully executed by the Chairman of the Board of Supervisors and the authorized representative for the Developer. 18.1.1 Administrative Change Orders may address any of the following areas: 18.1.1.1 Modifications to the Project timeline if the last day of the Project timeline is within the Agreement term; 18.1.1.2 Modifications to Budget line items if the Agreement Amount remains unchanged; 18.1.1.3 Modifications required by federal, state, or County regulations, ordinances, or policies; 18.1.1.4 Modifications to administrative requirements such as changes in reporting periods, frequency of reports, or report formats required by HUD or local regulations, policies, or requirements; and 18.1.1.5 Modifications to Administrative requirements such as changes in reporting periods, frequency of reports, or report formats required by HUD or by local regulations, policies, or requirements. 18.1.2 Addenda: 18.1.2.1 The Developer and the Administrator shall submit to the County, an Addendum when each property has been identified and will be acquired by the Developer and the Administrator for rehabilitation activities under this Agreement; and 18.1.2.2 All Addenda shall be integrated into the Agreement. Contract No. C-22-21-061-X-02 Amendment No. 2 Guadalupe Community Development Corporation Page 7 of 8 C. Revise Section 3 (Work Statement) to address the following paragraphs: 1. Revise the Work Statement in the Original Agreement, Paragraph 2.0 (Scope of Work) by deleting Subparagraph 2.1 in its entirety and replace with the following: 2.1 Project Description: The newly constructed home will be a 3- or 4- bedroom, 1 and 3/4 bath, 2-car garage, and have a total living space of approximately 1,500 square feet, located at 8234 S Calle Batoua, Guadalupe, Arizona 85283, APN #301-08-019. The project will create a homeownership for a low-income household and foster a healthy living environment. 2. Revise the Work Statement in the Original Agreement, Paragraph 5.0 (Performance Reporting Goals/Timeline of Activities) by deleting in its entirety and replace with the following: 5.0 PERFORMANCE REPORTING GOALS/TIMELINE OF ACTIVITIES MILESTONES: Tasks to be Performed COMPLETION DATE Application/market study 02/03/2020 Execute Developer Agreement with Maricopa County 09/30/2021 Development Plan Approved-Town of Guadalupe 09/01/2021 Environmental Review approval 03/31/2021 Submit complete application for construction permits 12/01/2021 RFP for construction activities 01/15/2022 Homeownership counseling/buyer preparation 06/15/2022 Construction of project 02/01/2022 Sale of Unit (Pre-sale and during construction) 07/30/2022 Execute Homebuyer Recapture Agreement 08/30/2022 Homebuyer financing secured 09/01/2022 Certificate of Occupancy 10/15/2022 Final inspection by MCHSD 10/31/2022 Final Close-out /Project Completion Form 11/30/2022 III. Section II above contains all the changes made by this Amendment No. 2. All other terms and conditions of the Agreement and previously approved Amendments shall remain in full force and effect as executed by the Parties. IV. The Parties have authorized the undersigned to execute this Amendment No. 2 on their behalf, and it shall be effective upon approval and signature by the Parties. Contract No. C-22-21-061-X-02 Amendment No. 2 Guadalupe Community Development Corporation Page 8 of 8 IN WITNESS THEREOF, the Parties have signed this Amendment: APPROVED BY: MARICOPA COUNTY Bill Gates Date Chairman, Board of Supervisors APPROVED BY: GUADALUPE COMMUNITY DEVELOPMENT CORPORATION (Developer) Steve Langstaff Date Executive Director Attested to: _ Clerk of the Board Date IN ACCORDANCE WITH A.R.S. §§ 11-201 11- 251, AND 11-952, THIS AMENDMENT NO. 2 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