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Page 1 of 55 NAC El Mirage HOME ARP Agreement DEVELOPER AGREEMENT BETWEEN MARICOPA COUNTY ADMINISTERED BY ITS HUMAN SERVICES DEPARTMENT AND NAC EL MIRAGE HOUSING, LLC Agreement Amount: $16,723,321.00 Agreement Start Date: February 28, 2024 Agreement Termination Date: December 31, 2026 Agreement Number: _______________________ ALN Numbers: 14.239, HOME Investment Partnerships Program, 21.027 American Rescue Plan Act, Coronavirus State and Local Fiscal Recovery UEI Number: GNHTQEMDUZM3 This Agreement (“Agreement”) is entered into between Maricopa County, administered by its Human Services Department (“County”), and NAC El Mirage Housing, LLC (“Developer”). The County and the Developer collectively are referred to in this Agreement as the “Parties” and individually as a “Party.” The County shall provide financial reimbursement in the amount listed above, subject to the terms of this Agreement and the availability of funds. The Agreement Amount constitutes the County’s entire participation and obligation in the performance and completion of all work to be performed under this Agreement. The Developer for and in consideration of the covenants and conditions set forth in this Agreement shall provide and perform the services set forth in this Agreement. The Parties agree to all rights and obligations of the Parties and shall be governed by the terms of this Agreement and its exhibits, attachments, and appendices, including any Subcontracts, Amendments, or Change Orders as set forth in this Agreement and in: Section 1 – General Provisions Section 2 – Special Provisions Section 3 – Work Statement Section 4 – Compensation Section 5 – Attachments This Agreement contains all the terms and conditions agreed to by the Parties. No other understandings, oral or otherwise, regarding the subject matter of this Agreement shall be Page 2 of 55 NAC El Mirage HOME ARP Agreement deemed to exist or to bind any of the Parties to this Agreement. Nothing in this Agreement shall be construed as consent to any lawsuits, or waiver of any defenses in a lawsuit brought against Maricopa County or the Developer in any state or federal court. IN WITNESS, the Parties have approved and signed this Agreement: APPROVED BY: NAC EL MIRAGE HOUSING, LLC Authorized Representative Date Trula Breuninger, President/CEO of its Sole Member, Native American Connections, Inc. ___________________________________ Printed Name and Title APPROVED BY: MARICOPA COUNTY Jack Sellers, Chairman Date Board of Supervisors Attested to: Juanita Garza Date Clerk, Board of Supervisors IN ACCORDANCE WITH A.R.S. §§ 11-201, 11-251, AND 11-952, THIS AGREEMENT HAS BEEN REVIEWED BY THE UNDERSIGNED ATTORNEY WHO HAS DETERMINED THIS AGREEMENT 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 Page 3 of 55 NAC El Mirage HOME ARP Agreement SECTION 1 GENERAL PROVISIONS Section 1 General Provisions Page 4 of 55 NAC El Mirage HOME ARP Agreement 1.0 PURPOSE Through this Agreement, affordable multifamily rental housing in Maricopa County will be expanded The purpose of this Agreement is to provide the Developer with funding to acquire land and construct a new multifamily rental community with 45 units and provide supportive services to those tenants. The project will service residence located within Maricopa County Urban County Cities of City of El Mirage, Town of Youngtown, City of Tolleson and any unincorporated areas of Maricopa County West of 67th Avenue, and the City of Avondale, City of Peoria, and City of Surprise. The County shall provide the Developer with U.S. Department of Housing and Urban Development (HUD) HOME Investment Partnerships Program funds and American Rescue Plan Act – Coronavirus State and Local Fiscal Recovery Funds (“ARPA”) provided to the County by the U. S. Treasury, for the provision of HOME activities as identified in Section 3 (Work Statement). 2.0 NOTICES All notices to be given pursuant to this Agreement will be delivered to the individuals and addresses listed below. Notices may be delivered via certified or registered mail (postage prepaid), overnight courier, or via email. For Maricopa County: Human Services Division Representative: Jamie Macfarlane, Program Manager, Housing and Community Development Division Phone: 602-506-5813 E-mail: Jamie.Macfarlane@maricopa.gov Address: 234 North Central Avenue, Third Floor, Phoenix, Arizona 85004 For Developer: NAC El Mirage Housing, LLC Representative: Joe Keeper, Senior Director of Real Estate Development of its Sole Member, Native American Connections, Inc. Phone: 602-327-2542 E-mail: j.keeper@nativeconnections.org Address: 3216 N. 3rd Street, Phoenix, AZ 85012 3.0 TERM OF AGREEMENT This Agreement shall be effective upon approval and signature by both Parties. The Term of this Agreement shall commence upon the signature of the last signer (“Agreement Start Date”) and terminate on the Agreement Termination Date listed on page 1 of this Agreement. 4.0 RENEWAL This Agreement may be renewed by a written amendment, provided, however, that the Developer is in full compliance with all terms and conditions of this Agreement. Under A.R.S. § 11-952, no renewal may exceed the duration of the previous agreement. The Developer shall notify the County in writing of its intent to request an extension of the Agreement term at least ninety (90) calendar days prior to the expiration of the original Agreement term, or any additional terms thereafter. 5.0 AMENDMENTS Section 1 General Provisions Page 5 of 55 NAC El Mirage HOME ARP Agreement All Amendments to this Agreement 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. 6.0 ADMINISTRATIVE CHANGE ORDERS 6.1 The Chairman of the Board of Supervisors is authorized upon the recommendation of the Human Services Department Director and Legal Counsel to make changes within the general scope of the Agreement on behalf of the County through Administrative Change Orders. Administrative Change Orders shall be approved and fully executed by the Chairman of the Board of Supervisors and the authorized representative for the Developer. 6.1.1 Administrative Change Orders may address any of the following areas: 6.1.1.1 Modifications to the project timeline if the last day of the project timeline is within the Agreement term; 6.1.1.2 Modifications to Budget line items if the Agreement Amount remains unchanged; 6.1.1.3 Modifications required by federal, state, or County regulations, ordinances, or policies; and 6.1.1.4 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. 6.1.2 It is the responsibility of the Developer to ensure the latest documents are consulted and followed 7.0 ACRONYMS AND DEFINITIONS Acronyms and Definitions found under 2 C.F.R. §§ 200.0 & 200.1 are incorporated by reference 8.0 EFFECT To the extent that the Special Provisions are in conflict with the General Provisions, the Special Provisions shall control. To the extent that the Work Statement and the Special or General Provisions are in conflict, the Work Statement shall control. To the extent that the Compensation Provisions are in conflict with the General Provisions, Special Provisions or Work Statement, the Compensation Provisions shall control. Nothing in this Agreement shall operate to increase the Operating Budget without a written amendment to this Agreement 9.0 TERMINATION 9.1 Pursuant to A.R.S. § 38-511, the County may cancel this Agreement without penalty or further obligation within three years after execution of this Agreement, if any person significantly involved in initiating, negotiating, securing, drafting or creating this Agreement on behalf of the County is at any time while this Agreement or any extension of this Agreement is in effect, is or becomes an employee or agent of any other party to this Agreement in any capacity or consultant to any other party to this Agreement with respect to the subject matter of this Agreement. 9.2 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 this Agreement on behalf of the County from any other party to this Agreement arising as the result of this Agreement. A cancellation notice made under this Subparagraph shall be effective when the recipient receives a written notice of cancellation unless the notice specifies a later date. Section 1 General Provisions Page 6 of 55 NAC El Mirage HOME ARP Agreement 9.3 Either Party may terminate this Agreement at any time by giving the other Party at least sixty (60) calendar days prior notice in writing (unless terminated by the County under the Availability of Funds provision). The notice shall be given by either personal delivery or by registered or certified mail, postage prepaid and return receipt requested to the persons at the addresses set forth on page 4 of this Agreement. 9.4 The County has the right to terminate this Agreement upon twenty-four (24) hour notice when the County deems the health or welfare of the service recipients are endangered or the Developer’s non-compliance jeopardizes funding source financial participation. If not terminated by one of the above methods, then this Agreement will terminate upon the expiration of the Term of this Agreement stated on page 1 of this Agreement. 9.5 In accordance with 2 C.F.R. §§ 200.340 et seq, the County may suspend or terminate this Agreement if the Developer violates any term or condition of this Agreement or if the Developer fails to maintain a good faith effort to carry out the purpose of this Agreement. 9.6 The Parties may terminate this Agreement for convenience in accordance with 2 C.F.R. § 200.340. The Parties shall agree upon the termination conditions including the effective date of the termination. The Party initiating the termination shall notify the other Party in writing stating the reasons for such termination. 10.0 DEFINITIONS As used throughout this Agreement, the following terms shall have the following meanings: 10.1 ARPA means American Rescue Plan Act State and Local Fiscal Recovery Funds. 10.2 Annual Action Plan means the annual plan submitted by the County (as the lead agency of the Maricopa HOME Consortium) to HUD, which describes the Consortium’s annual program goals. 10.3 Assistant Director means the Director of the Housing and Community Development Division within the Maricopa County Human Services Department. 10.4 Beneficiary means a person or household that meets the income requirements of 24 C.F.R. § 92.203 subject to the restriction on assistance to students enrolled in an institution of higher education, as described in 24 C.F.R. § 5.612. 10.5 Board of Supervisors (BOS) means the Maricopa County Board of Supervisors. 10.6 Commitment or Commit to a Specific Local Project shall have the same meaning as set forth in 24 C.F.R. § 92.2 (1) and (2), respectively. 10.7 County means Maricopa County. 10.8 Declaration means a document executed by Developer and recorded in the office of the Maricopa County Recorder against the Project Property defining the use, unit designation, eligible participants, and time frame of the Project period. 10.9 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. 10.10 Department means the Maricopa County Human Services Department, Housing and Community Development Division as Lead Agency. 10.11 Developer/Subcontractor means either a non-profit or for-profit organization carrying out HOME-related project activities as described in the written agreement between the County and the Developer. 10.12 Director means the Director of the Maricopa County Human Services Department. 10.13 Division means the Housing and Community Development Division of the Maricopa County Human Services Department. Section 1 General Provisions Page 7 of 55 NAC El Mirage HOME ARP Agreement 10.14 Five-Year Consolidated Plan means the HUD required Consolidated Plan submitted by the County as the Lead Agency for the Maricopa HOME Consortium. 10.15 HOME means the HOME Investment Partnerships Program. 10.16 HOME-ARP means HOME Investment Partnerships Program American Rescue Plan Act. 10.17 HUD means U.S. Department of Housing and Urban Development. 10.18 Lead Agency or Department means the Maricopa County Human Services Department, Housing and Community Development Division. 10.19 Low-income families means families whose annual incomes do not exceed 80 percent of the median income for the area, as determined by HUD, with adjustments for smaller and larger families, except that HUD may establish income ceilings higher or lower than 80 percent of the median for the area on the basis of HUD findings that such variations are necessary because of prevailing levels of construction costs or fair market rents, or unusually high or low family incomes. An individual does not qualify as a low-income family if the individual is a student who is not eligible to receive Section 8 assistance under 24 C.F.R. § 5.612. 10.20 LIHTC means Low-Income Housing Tax Credit. 10.21 Minority Business Enterprise (MBE) means an entity that is majority owned or controlled by a socially and economically disadvantaged individual as described by Public Law 95-507. 10.22 Net Proceeds means the amount remaining after deducting non-HOME debt and closing costs from the sale of a HOME funded asset, obligation, or loan. 10.23 Performance Bond means a bond executed to secure fulfillment of all of the Developer's obligations under this Agreement. 10.24 Period of Affordability means the length of time required that HOME-assisted housing must be occupied by income-eligible households. The minimum Period of Affordability is five years for HOME subsidies of less than $15,000 per unit; ten years for subsidies of $15,000 to $40,000; and 15 years for subsidies greater than $40,000. New construction of rental housing has a Period of Affordability of 20 years and refinancing of rental housing has a minimum Period of Affordability of 15 years. 10.25 Program Income means gross income received by the Developer directly generated from the use of HOME funds. For purposes of this Agreement, the gross income from the sale of real property acquired and constructed with HOME funds is considered Program Income. Program Income is subject to the requirements of the HOME regulations. 10.26 Projects means rehabilitation or new construction as described in a legally binding agreement between the Developer and the prospective owners or beneficiaries of the HOME funds for which all necessary financing has been secured and budgeted and for which an acquisition, construction, or rehabilitation schedule has been established and underwriting has been completed and otherwise complies with 24 C.F.R. Part 92.2(2) and 92.2 (A) and (B). 10.27 Promissory Note means a document evidencing Developer’s promise to repay the funds advanced under certain conditions set forth in the document. 10.28 Public Agency has the meaning prescribed by A.R.S. § 11-951. 10.29 Subcontract means any agreement entered into by the Developer with a third party for professional services performance of any of the work or provision of any of the services covered by this Agreement. 10.30 Subcontractor means an entity funded through the Developer to provide any work or services required by the Work Statement. Section 1 General Provisions Page 8 of 55 NAC El Mirage HOME ARP Agreement 10.31 Subrecipient means a public or private nonprofit agency, authority or organization, or an entity described in 24 C.F.R. § 570.204(c), to which a subaward is made and which is accountable to the recipient for the use of the funds provided. 10.32 Vendor means an entity funded through the Developer to provide services required by the Work Statement. 10.33 Very low-income families means low-income families whose annual incomes do not exceed 50 percent of the median family income for the area, as determined by HUD with adjustments for smaller and larger families, except that HUD may establish income ceilings higher or lower than 50 percent of the median for the area on the basis of HUD findings that such variations are necessary because of prevailing levels of construction costs or fair market rents, or unusually high or low family incomes. An individual does not qualify as a very low-income family if the individual is a student who is not eligible to receive Housing Choice Voucher assistance under 24 C.F.R. § 5.612. 10.34 Work Statement means the section of this Agreement that contains a description of services to be delivered pursuant to this Agreement. 10.35 Women’s Business Enterprise (WBE) means an entity in which a woman has majority ownership and control. 11.0 GENERAL REQUIREMENTS 11.1 The terms of this Agreement shall be construed in accordance with Arizona law and the applicable regulations of the United States Department of Housing and Urban Development (HUD). Any lawsuit arising out of this Agreement shall be brought in the appropriate court in Maricopa County, Arizona. 11.2 The Developer shall, without limitation, obtain and maintain all licenses, permits, and authority necessary to do business, render services, and perform work under this Agreement, and it shall comply with all laws regarding unemployment insurance, disability insurance, and workers’ compensation. 11.3 The Developer is an independent contractor in the performance of work and the provision of services under this Agreement and is not to be considered an officer, employee, or agent of the County. 11.4 The Developer shall comply with the provisions of 2 C.F.R. 200 and 2 C.F.R. 570.611 prohibiting a conflict of interest, and not make any payments, either directly or indirectly, to any person, partnership, corporation, trust, or other organization that has a substantial interest in the Developer’s organization or with which the Developer (or one of its directors, officers, owners, trust certificate holders, or relatives) has a substantial interest, unless the Developer makes full written disclosure of the proposed payments to the County and has received written approval for the payments. 11.5 For purposes of this provision, the terms "substantial interest" and "relative" shall have the meanings prescribed by A.R.S. § 38-502. 12.0 ACCEPTANCE OF FUNDS The Developer hereby agrees to the receipt of funds under the terms of this Agreement and agrees to execute and return a signed Agreement to the County within thirty (30) days after receipt of this Agreement unless the Developer has received a written waiver of this requirement from the County. 13.0 ASSIGNMENT AND SUBCONTRACTING 13.1 No right, liability, obligation, or duty under this Agreement may be assigned, delegated, or subcontracted, in whole or in part, without the prior written approval of Section 1 General Provisions Page 9 of 55 NAC El Mirage HOME ARP Agreement the County. The Developer shall bear all liability under this Agreement, even if it is assigned, delegated, or subcontracted, in whole or in part, unless the County agrees otherwise. 13.2 In accordance with 2 C.F.R. §200.331, the Developer may make a “Subaward” as a pass-through entity for the purpose of carrying out a portion of the federal award and general funds. The Developer will make determinations classifying recipients of federal funds as a Subrecipient or a Subcontractor. 13.3 The Subcontractor’s rate for the job shall not exceed that of the Developer’s rate, as bid in the pricing section, unless the Developer is willing to absorb any higher rates, or the County has approved the increase. The Subcontractor’s invoice shall be invoiced directly to the Developer, who in turn shall pass through the costs to the County, without mark-up. A copy of the Subcontractor’s invoice must accompany the Developer’s invoice. 13.4 The Developer must ensure any Subaward recipient or subcontractor is compliant with all ARPA and general federal grant requirements, including reporting requirements. 14.0 AVAILABILITY OF FUNDS 14.1 The provisions of this Agreement relating to the payment for services shall become effective when funds assigned for the purpose of compensating the Developer, as provided in this Agreement, are actually available to the County for disbursement. The County shall be the sole judge and authority in determining the availability of funds under this Agreement. The County shall keep the Developer fully informed as to the availability of funds. Failure to meet the obligations of the Agreement may result in a demand for repayment of the funds. 14.2 If any action is taken by any state agency, federal department, or any other agency or instrumentality to suspend, decrease, or terminate its fiscal obligation under, or in connection with this Agreement, then the Parties may amend, suspend, decrease, or terminate their obligations under or in connection with this Agreement. In the event of termination, the County shall be liable for payment only for services rendered prior to the effective date of the termination, provided that such services performed are in accordance with the provisions of this Agreement. The County shall give written notice of the effective date of any suspension, amendment, or termination under this Subparagraph at least ten (10) calendar days in advance. 15.0 BUDGET ADJUSTMENTS 15.1 Any requests for reasonable budget adjustments must be submitted ninety (90) calendar days prior to the expiration of this Agreement. Requests for adjustments to this Agreement must be supported by documentation. 15.2 The Developer must receive prior written approval from the County to move funds from one budget activity line item to another. Budget adjustments that do not change the Agreement amount may be documented by an Administrative Change Order signed by the Chairman of the Board of Supervisors and the Developer’s Executive Director as defined in Section 1 (General Provisions), Subparagraph 6.0 (Administrative Change Orders) If a budget change is necessary that either increases or decreases the Agreement amount, then the Parties shall follow Section 1 (General Provisions), Paragraph 5.0 (Amendments) of this Agreement to amend the Agreement. 16.0 DISPUTES. Section 1 General Provisions Page 10 of 55 NAC El Mirage HOME ARP Agreement 16.1 Except as may otherwise be provided for in this Agreement, the Parties may attempt to informally resolve any dispute arising out of this Agreement for a reasonable period of time, which shall not exceed one hundred twenty (120) calendar days. Disputes which are not resolved in that time period shall be submitted in accordance with the following formal dispute resolution process. 16.2 If a dispute cannot be resolved informally, then the Developer shall notify the Department in writing by mailing notice of the dispute to the Program Manager within ten (10) business days from expiration of the informal dispute resolution process described in Subparagraph 16.1 above. 16.3 The Program Manager shall respond in writing to the Developer within fourteen (14) business days. The decision of the Program Manager shall be final and conclusive unless, within seven (7) business days after the date the Developer is served with the decision, the Developer files a written notice of appeal with the Human Services Department Director. 16.4 The Human Services Department Director shall provide the Developer with a written response within fourteen (14) business days following receipt of the notice of appeal. The decision of the Department Director shall be final and not appealable. 16.5 Pending a final decision of the Department Director, the Developer shall diligently proceed with its performance of this Agreement in accordance with the Program Manager’s decision. 17.0 DEFAULT AND REMEDIES FOR NONCOMPLIANCE 17.1 Notwithstanding anything to the contrary, this Subparagraph shall not be deleted or superseded by any other provision of this Agreement. 17.2 This Agreement may be immediately terminated by the County if the Developer defaults by failing to perform any objective, or breaches any obligation under this Agreement, or any event occurs that jeopardizes the Developer’s ability to perform any of its obligations under this Agreement. The County reserves the right to have the services provided by persons other than the Developer if the Developer is unable or fails to provide required services within the specified time frame. 17.3 Failure to comply with the requirements of this Agreement and all applicable federal, state, or local laws, rules, and regulations may result in suspension or termination of this Agreement, the return of unexpended funds (less just compensation for work satisfactorily completed that, to date, has not been paid), the reimbursement of any funds improperly expended, or the recovery of funds improperly acquired. Noncompliance with this Agreement includes but is not limited to: 17.3.1 Nonperformance of any obligations required by this Agreement; 17.3.2 Noncompliance with any applicable federal, state, or local laws, rules, or regulations, including HUD guidelines, policies, or directives; 17.3.3 Unauthorized expenditure of funds; 17.3.4 Violation of the applicable affordability period; 17.3.5 Improper disposition of recaptured proceeds; 17.3.6 Improper disposition of project proceeds; 17.3.7 Noncompliance with applicable financial record requirements, accounting principles, or standards established by OMB Uniform Guidance 2 C.F.R. §§ 200, et seq; and 17.3.8 Noncompliance with recordkeeping, record retention, or reporting requirements. Section 1 General Provisions Page 11 of 55 NAC El Mirage HOME ARP Agreement 17.4 Notwithstanding the suspension or termination of this Agreement, or the final determination of the proper disposition of funds, the Developer shall, without intent to limit or with restrictions, be subject to the following: 17.4.1 All awards for funding shall be immediately revoked, and any approvals related to the project described in the Special Provision or Work Statement shall be deemed revoked and canceled. Thereby, any entitlements to compensation after suspension or termination of this Agreement are similarly revoked and unavailable. 17.4.2 Not be relieved of any liability or responsibility associated with the Special Provision or Work Statement. 17.4.3 Acknowledge that suspension or termination of this Agreement does not affect or terminate any rights against the Developer at the time of suspension or termination, or that may accrue later. Nothing herein shall be construed to limit or terminate any right or remedy available under contract or rule. 17.4.4 Waiver of a breach or default of any term, covenant, or condition of this Agreement or any federal, state, or local law, rule, or regulation shall not operate as a waiver of any subsequent breach of the same or any other term, covenant, condition, law, rule, or regulation. 17.5 The Developer shall, upon notice or with knowledge obtained by itself or others, take any and all proactive actions necessary, and provide any and all applicable remedies to address and correct any act by itself, and any and all of its agents, representatives, officers, officials, directors, employees, volunteers, successors, assigns, or Subcontractors that resulted in any wrongdoing (intentional or unintentional); misuse or misappropriation of funds; the incorrect or improper disposition of funds; any violation of any federal, state, or local law, rule, or regulation; or the breach of any certification or warranty provided in this Agreement. 18.0 SEVERABILITY Any provision of this Agreement that is determined to be invalid, void, or illegal by a court shall in no way affect, impair, or invalidate any other provision of this Agreement, and the remaining provisions shall remain in full force and effect. 19.0 STRICT COMPLIANCE The County’s acceptance of the Developer’s performance that is not in strict compliance with the terms of this Agreement, shall not be deemed to waive the requirements of strict compliance for all future performance. All changes in performance obligations under this Agreement shall follow Section 1 (General Provisions), Paragraph 5.0 (Amendments) of this Agreement. 20.0 NON-LIABILITY The County and its agents, representatives, officials, officers, directors, employees, volunteers, departments, agencies, boards, and commissions shall not be liable for any act or omission by the Developer or any and all of its agents, representatives, officials, officers, directors, employees, volunteers, agencies, boards, commissions, or Subcontractors occurring in the performance of this Agreement, nor shall the County and its agents, representatives, officials, officers, directors, employees, volunteers, departments, agencies, boards, and commissions be liable for purchases, Subcontract, or agreements made by the Developer or any and all of its agents, representatives, officials, officers, directors, Section 1 General Provisions Page 12 of 55 NAC El Mirage HOME ARP Agreement employees, volunteers, agencies, boards, commissions, or subcontractors in connection with this Agreement 21.0 GENERAL INDEMNIFICATION 21.1 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 Developer, the Developer shall defend, indemnify, and hold harmless the County, its agents, representatives, officers, directors, officials, and employees from and against all claims, damages, losses, and expenses (including, but not limited to reasonable attorneys' fees, court costs, expert witness fees, and the costs and attorneys' fees for appellate proceedings) arising out of the negligent acts, errors, omissions, of the Developer, its agents, representatives, employees, or subcontractors relating to the performance of this Agreement. 21.2 Developer'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 or omissions, in the performance of this Agreement, but only to the extent caused by the negligent acts or omissions of the Developer, 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 here under. 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. 21.3 Notwithstanding the foregoing to the contrary, Developer is not liable for the negligence or willful misconduct of County or any of the indemnitee. 22.0 OFFSHORE PERFORMANCE OF WORK PROHIBITED Due to security and identity protection concerns, direct services under this Agreement shall be performed within the borders of the United States. Any services that are described in the specifications or scope of work that directly serve the State of Arizona or its clients and may involve access to secure or sensitive data or personal client data or development or modification of software for the State shall be performed within the borders of the United States. Unless specifically stated otherwise in the specifications, this definition does not apply to indirect or “overhead” services, redundant back-up services or services that are incidental to the performance of this Agreement. The provision applies to work performed by Subcontractors at all tiers 23.0 TECHNICAL ASSISTANCE The County shall provide reasonable technical assistance to the Developer to assist in complying with state and federal laws and regulations, and accountability for diligent performance and compliance with the terms and conditions of this Agreement and all applicable laws, regulations, and standards. However, this assistance in no way relieves the Developer of full responsibility and accountability for its actions and performance in compliance with the terms of this Agreement. 24.0 SINGLE AUDIT ACT REQUIREMENTS The Developer is subject to the federal audit requirements of the Single Audit Act of 1984, as amended (Pub. L. No. 98-502) (codified at 31 U.S.C. §§ 7501, et seq.). The Developer shall comply with 2 C.F.R. §§ 200, et seq. Upon completion, such audits shall be made Section 1 General Provisions Page 13 of 55 NAC El Mirage HOME ARP Agreement available for public inspection. Audits shall be submitted within the twelve (12) months following the close of the fiscal year. The Developer shall take corrective actions within six (6) months after the date of receipt of the reports. The County shall consider sanctions as described in 2 C.F.R. § 200.505 if it is determined by either HUD or the County that the Developer is not in compliance with the audit requirements. 25.0 AUDIT DISALLOWANCES 25.1 The Developer shall, upon written notice, reimburse the County for any payments made under this Agreement that are disallowed by a federal, state, or County audit in the amount of the disallowance. Court costs and attorney and expert fees incurred will be specifically identified as applicable to the recovery of the disallowed costs in question. 25.2 If the County determines that a cost for which payment has been made is a disallowed cost, then the County will notify the Developer in writing of the disallowance and the required course of action, which shall be at the option of the County either to adjust any future claim submitted by the Developer by the amount of the disallowance or to require immediate repayment of the disallowed amount by the Developer issuing a check payable to the County. 26.0 STAFF AND VOLUNTEER TRAINING The County may make available to the Developer the opportunity to participate in any applicable training activities conducted by the County. 27.0 LOBBYING 27.1 No federal appropriated funds have been paid or will be paid by or on behalf of the Developer to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the awarding of any federal agreement, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal agreement, grant, loan, or cooperative agreement. 27.2 If any funds, other than federal appropriated funds, have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with any federal agreement, grant, loan or cooperative agreement, then the Developer shall complete and submit OMB Form- LLL, titled "Disclosure of Lobbying Activities," in accordance with its instructions and 31 U.S.C. § 1352. 28.0 RELIGIOUS ACTIVITIES The Developer agrees that none of its costs and none of the costs incurred by any Vendor will include any expense for any religious activity. 29.0 POLITICAL ACTIVITY PROHIBITED None of the funds, materials, property, or services contributed by the County or the Developer under this Agreement shall be used for any partisan political activity, or to further the election or defeat of any candidate for public office. 30.0 COVENANT AGAINST CONTINGENT FEES Section 1 General Provisions Page 14 of 55 NAC El Mirage HOME ARP Agreement The Developer warrants that no person or entity has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee. For breach or violation of this warranty, the County may immediately terminate this Agreement without liability. 31.0 CONFIDENTIAL INFORMATION 31.1 Any information obtained in the course of performing this Agreement may include information that is proprietary or confidential to the County. This provision establishes the Developer’s obligation regarding such information. 31.2 The Developer 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 Agreement shall be used by or disclosed by it, its agents, officers, or employees, except as required to efficiently perform duties under the Agreement, or as required by the Arizona Public Records Act. The Developer’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 Agreement, the County determines that the procedures and controls in place are not adequate, the Developer shall institute any new and/or additional measures requested by the County within fifteen (15) calendar days of the written request to do so. 31.3 Any requests to the Developer for County proprietary or confidential information shall be referred to the County for review and approval, prior to any dissemination 32.0 SAFEGUARDING OF PARTICIPANT INFORMATION 32.1 The Developer shall observe and abide by all applicable State of Arizona and federal statues, rules, and regulations regarding the use or disclosure of information including, but not limited to, information concerning applicants for and recipients of contracted services. To the extent permitted by law, the Developer shall release information to the County Department, Attorney General’s Office, or other designated agency as required by the County by the terms of this Agreement or by law. 32.2 The Developer shall comply with the requirements of the Arizona Address Confidentiality Program, A.R.S. §§ 41-161, et seq. The Department will advise the Developer as to applicable policies and procedures adopted for such compliance. 32.3 The Developer understands that client information collected under this Agreement is private and the use or disclosure of such information, when not directly connected with the administration of the Developer's responsibilities with respect to services provided under this Agreement, is prohibited unless written consent is obtained from such person receiving service. 33.0 RIGHTS IN DATA The Parties shall have the use of data and reports resulting from this Agreement without cost or other restriction, except as otherwise provided by law or applicable regulation. Each Party shall supply the other Parties, upon request, any available information that is relevant to this Agreement and to the performance under it. 34.0 COPYRIGHTS If this Agreement results in a book or other written material, then the author is free to copyright the work, but the County reserves a royalty-free, nonexclusive, perpetual, and irrevocable license to reproduce, publish, or otherwise use, and to authorize others to use Section 1 General Provisions Page 15 of 55 NAC El Mirage HOME ARP Agreement all copyrighted material and all material that can be copyrighted as a result of this Agreement. 35.0 PATENTS Any discovery or invention arising out of, or developed in the course of, work aided by this Agreement shall be promptly and fully reported to the County for determination as to whether patent protection on such invention or discovery shall be sought and how the rights in the invention or discovery, including rights under any patent issued on such invention or discovery, shall be disposed of and administered in order to protect the public interest. 36.0 AGREEMENT COMPLIANCE MONITORING 36.1 The County will monitor the Developer’s compliance with and performance under the terms and conditions of this Agreement and the applicable regulations promulgated by HUD and Maricopa County. On-site visits for compliance monitoring may be made by either the County or its grantor agencies (or by both the County and its grantor agencies) at any time during the Developer's normal business hours, announced or unannounced. For auditing purposes, the County shall provide the Developer with a 30-day advance notice of any proposed on-site visits. During an on-site visit, the Developer shall make all its records and accounts related to work performed under this Agreement available to the County for inspection and copying. 36.2 The County shall request information for monitoring/audit per Office of Management and Budget (OMB) Uniform Guidance 2 C.F.R. § 200, to include: 36.2.1 Financial Management 2 C.F.R. § 200.302 36.2.2 Internal Controls 2 C.F.R. § 200.303 36.2.3 Bonds 2 C.F.R. § 200.304 36.2.4 Payment and Financial Reporting 2 C.F.R. § 200.305 36.2.5 Cost Sharing or Matching 2 C.F.R. § 200.306 36.2.6 Program Income 2 C.F.R. § 200.307 36.2.7 Revision of Budget and Program Plans 2 C.F.R. § 200.308 36.2.8 Modifications to Period of Performance 2 C.F.R. § 200.309 36.2.9 Insurance Coverage 2 C.F.R. § 200.310 36.2.10 Record Retention and Access 2 C.F.R. § 200.334 – 200.338 36.2.11 Procurement Standards 2 C.F.R. § 200.318 36.2.12 Indirect Costs 2 C.F.R. § 200.414 36.2.13 Compensation-Personal Services 2 C.F.R. § 200.430 36.2.14 Audit Requirements 2 C.F.R. § 200.501-200.517 37.0 CONTINGENCY RELATING TO OTHER CONTRACTS AND GRANTS 37.1 The Developer shall, during the term of this Agreement, immediately inform the Program Manager in writing of any other agreement or grant, including any other agreement or grant awarded by the County, where the award may affect either the direct or indirect costs being paid or reimbursed under this Agreement. Failure by the Developer to notify the County of such award shall be considered a violation of this Agreement and the County may immediately terminate this Agreement without liability. 37.2 The County may request, and the Developer will provide within a reasonable time, which shall not exceed ten (10) business days, a copy of such other agreement or grant, when in the opinion of the County the award of the Agreement or grant may affect the costs being paid or reimbursed under this Agreement. 37.3 If the County determines that the award to the Developer of such other agreement or grant has affected the costs being paid or reimbursed under this Agreement, then Section 1 General Provisions Page 16 of 55 NAC El Mirage HOME ARP Agreement the County will prepare an amendment to this Agreement effecting a cost adjustment. If the Developer disputes the proposed cost adjustment, then the dispute shall be resolved pursuant to the "Disputes" section contained in this Agreement. 38.0 MINIMUM WAGE REQUIREMENTS The Developer warrants that it shall pay all of its employees who are engaged in either performing work or providing services under the terms of this Agreement not less than the minimum wage specified under Section 206(a)(1) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. §§ 201, et seq.), by law and regulation, and, as applicable, Executive Order 13658, as amended, and as specified by Arizona law. 39.0 RECOGNITION OF COUNTY SUPPORT The Developer will give recognition to the County and the funding source for its support when the Developer publishes materials that are (or releases of public information that is) paid for either in whole or in part with funds received by the Developer under this Agreement. 40.0 INSURANCE 40.1 The Developer, at Developer’s own expense, shall purchase and maintain at a minimum, the herein stipulated insurance in this Agreement from a company or companies duly licensed by the State of Arizona and possessing a current A.M. Best, Inc. rating of B++ or higher. 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 such insurance company or companies meet the approval of the County. The form of any insurance policies and forms must be acceptable to the County. 40.2 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 Agreement is satisfactorily completed and formally accepted. Failure to do so may, at the sole discretion of County, constitute a material breach of this Agreement. 40.3 In the event that the insurance required is written on a claims-made basis, Developer warrants that any retroactive date under the policy shall precede the effective date of this Agreement 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 Agreement is completed. 40.4 Developer’s insurance shall be primary insurance as respects County, and any insurance or self-insurance maintained by County shall not contribute to it. 40.5 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. 40.6 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. Developer shall be solely responsible for the deductible and/or self-insured retention and County, at its option, may require Developer to secure payment of such deductibles or self-insured retentions by a surety bond or an irrevocable and unconditional letter of credit. 40.7 The insurance policies required by this Agreement, except Workers’ Compensation and Errors and Omissions, shall name County, its agents, representatives, officers, directors, officials, and employees as additional insureds or additional loss payees as applicable. Section 1 General Provisions Page 17 of 55 NAC El Mirage HOME ARP Agreement 40.8 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 Developer’s work or service. 40.9 If available, the insurance policies required by this Agreement 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. 40.10 Commercial General Liability: 40.10.1 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 40.11 Errors and Omissions/Professional Liability Insurance 40.11.1 Errors and Omissions (Professional Liability) insurance which will insure and provide coverage for errors or omissions, or professional liability of the architect engaged by the Developer for the Project, with limits of no less than $2,000,000 for each claim. 40.12 Builder’s Risk (Property) Insurance 40.12.1 Developer shall purchase and maintain, on a replacement cost basis, Builders’ Risk insurance and, if necessary, Commercial Umbrella insurance in the amount of the initial Agreement amount, as well as subsequent modifications thereto for the entire work at the site. Such Builders’ Risk insurance shall be maintained until final payment has been made or until no person or entity other than County has an insurable interest in the property required to be covered, whichever is earlier. This insurance shall include interests of County, Developer, and all subcontractors and sub‐subcontractors in the work during the life of the Agreement and course of construction and shall continue until the work is completed and accepted by County. For new construction projects, Developer agrees to assume full responsibility for loss or damage to the work being performed and to the structures under construction. For renovation construction projects, Developer agrees to assume responsibility for loss or damage to the work being performed at least up to the full Agreement amount, unless otherwise required by the Agreement documents or amendments thereto. 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 Agreement. Builders’ Risk insurance must Section 1 General Provisions Page 18 of 55 NAC El Mirage HOME ARP Agreement provide coverage from the time any covered property comes under Developer’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 Agreement requires testing of equipment or other similar operations, at the option of County, Developer will be responsible for providing property insurance for these exposures under a Boiler and Machinery insurance policy or the Builders’ Risk Insurance policy 40.13 Workers’ Compensation: 40.13.1 Workers’ 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. 40.13.2 Developer 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 40.14 Certificates of Insurance: 40.14.1 Within ten (10) calendar days following the closing of construction financing for the Project. the Developer shall furnish the County with valid and complete Certificates of Insurance, or formal endorsements as required by the Agreement in the form provided by the County, issued by 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 number and title. 40.15 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 Developer’s work or services and as evidenced by annual certificates of insurance. 40.16 If a policy does expire during the life of the Agreement, a renewal certificate must be sent to County 15 calendar days prior to the expiration date. 40.17 Certificate holder shall be identified as: Maricopa County c/o Risk Management 301 W Jefferson St., Suite 910 Phoenix, AZ 85003 40.18 Cancellation and Expiration Notice 40.18.1 Applicable to all insurance policies required within the insurance requirements of this Agreement, Developer’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 Section 1 General Provisions Page 19 of 55 NAC El Mirage HOME ARP Agreement County. The Developer must provide Maricopa County, within ten 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 Human Services Department and shall be mailed, or delivered to 234 N. Central Avenue, Phoenix, AZ 85004, or emailed to the Human Services representative noted in the Agreement. 41.0 GRIEVANCE PROCEDURE The Developer shall establish a system through which applicants for, and recipients of, services may present grievances and may make appeals about eligibility and other aspects of the Developer’s work under this Agreement. The grievance procedure shall include provisions for notifying the applicants for, and recipients of, services of their eligibility or ineligibility for service and their right to appeal to the County if the grievance is not satisfied at the Developer’s level. This system shall include protest procedures for decisions related to contract awards and requests for reasonable accommodations for persons with disabilities. 42.0 NONDISCRIMINATION, EQUAL OPPORTUNITY AND EQUAL ACCESS 42.1 Developer shall 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 may be viewed and downloaded at the Arizona State Library Research website: (http://azmemory.azlibrary.gov/cdm/singleitem/collection/execorders/id/680/rec/1) which is hereby incorporated into this Agreement as if set forth in full herein. In connection with any service or other activity under this Agreement, Developer shall not discriminate against any employee, client, or any other individual in any way, including, not limited to, because of that person’s age, race, creed, color, religion, sex, disability, or national origin. 42.2 The Developer, in connection with any service or other activity 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 Developer shall include this clause in all of its Subcontracts. Refer to Paragraph 17.0, (Default and Remedies for Noncompliance). 43.0 EQUAL EMPLOYMENT OPPORTUNITY 43.1 The Developer shall not discriminate against any employee or applicant for employment in any way, including, but not limited to, because of race, age, disability, creed, color, religion, sex, disability, or national origin. 43.2 The Developer shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, age, creed, disability, color, religion, sex, or national origin. Such action shall include, but is not limited to, the following: employment, upgrading, demotion or transfer, recruitment, or recruitment advertising, lay-off or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The Developer will, in all solicitations or advertisements for employees placed by or on behalf of the Developer, state that it is an Equal Opportunity or Affirmative Action employer. 43.3 The Developer shall, to the extent the following provisions apply, comply with: Section 1 General Provisions Page 20 of 55 NAC El Mirage HOME ARP Agreement 43.3.1 Title VI and VII of the Civil Rights Act of 1964, as amended (42 U.S.C. §§ 2000a, et seq.); 43.3.2 the Rehabilitation Act of 1973, as amended (29 U.S.C. §§ 701, et seq.); 43.3.3 the Age Discrimination in Employment Act of 1967, as amended (29 U.S.C. §§ 621, et seq.); 43.3.4 the Americans With Disabilities Act of 1990 (42 U.S.C. §§ 12101, et seq.); and 43.3.5 Arizona Executive Order 2009-09, as amended, et seq. which mandates that all persons shall have equal access to employment opportunities. 43.4 The Developer shall include the above-listed provisions in every subcontract or purchase order, specifically or by reference. The inclusion of these provisions are binding and a requirement of this Agreement 44.0 DISABILITY REQUIREMENTS The Developer agrees that any electronic or information technology offered under this Agreement shall comply with A.R.S. §§41-2531 and 41-2532 and section 508 of the Rehabilitation Act of 1973, which requires that employees and members of the public shall have access to and use of information technology that is comparable to the access and use by employees and members of the public who are not individuals with disabilities. 45.0 UNIFORM ADMINISTRATIVE REQUIREMENTS By entering into this Agreement, the Developer 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. 46.0 FINANCIAL MANAGEMENT 46.1 The Developer agrees to maintain an adequate accounting system that provides for appropriate grant accounting (including calculation of program income). 46.2 The Developer shall comply with accounting principles and procedures required to utilize adequate internal controls and maintain necessary source documentation for all costs incurred, as well as any applicable federal laws and regulations. 46.3 The Developer shall establish and maintain a separate, interest-bearing bank account for money provided under this Agreement, or an accounting system that assures the safeguarding and accountability of all money and assets provided under this Agreement. No part of the money deposited in the bank account shall be commingled with other funds or money belonging to the Developer. All interest earned on the account shall be disposed of in a manner specified by the County in accordance with applicable state and federal regulations. 46.4 The Developer shall ensure accounting system used shall be in accord with generally accepted accounting principles. 47.0 RETENTION OF RECORDS 47.1 This provision applies to all financial and programmatic records, supporting documents, statistical records, and other records of the Developer that are related to this Agreement. 47.2 The Developer shall retain all records related to this Agreement for six (6) years after final payment or until after the resolution of any audit questions, which could be more than six (6) years, whichever is longer, or for the period of affordability imposed by deed restrictions. The County, federal and state auditors, and any other persons Section 1 General Provisions Page 21 of 55 NAC El Mirage HOME ARP Agreement duly authorized by the County, shall have full access to, and the right to examine, copy, and make use of any and all of the records. 48.0 ADEQUACY OF RECORDS If the Developer’s books, records, and other documents related to this Agreement are not sufficient to support and document that allowable services were provided to eligible participants, then the Developer shall reimburse the County for the services not supported and documented. 49.0 COMPETITIVE BID REQUIREMENTS All procurement completed under this Agreement shall comply with the requirements at 24 C.F.R. Part 92 and 2 C.F.R. Part 200, Subpart D, Procurement Standards. The Developer may utilize their own procurement system that meets or exceeds the requirements in 24 C.F.R. Part 92 and 2 C.F.R. 200 Subpart D. The Developer shall maintain an accessible policy adopting 24 C.F.R. Part 92 and 2 C.F.R. 200 Subpart D or a written procurement manual. 50.0 PROPERTY 50.1 Any County property furnished or purchased under 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 termination of this Agreement. The costs to repair such property are the responsibility of the Developer within the limits budgeted under this Agreement. Repair costs beyond the budgeted amount shall be approved by the County. 50.2 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. 50.3 The Developer shall maintain property and equipment inventory records that clearly identify properties and equipment purchased, improved, or sold. Properties and equipment retained shall continue to meet eligibility criteria and shall conform to the use of property and equipment 51.0 IMMIGRATION LAWS AND REGULATIONS 51.1 Federal Immigration and Nationality Act 51.1.1 The Developer understands and acknowledge the applicability of the Immigration Reform and Control Act of 1986 (IRCA). The Developer shall comply with the IRCA in performing under this Agreement and to permit the other Parties to inspect personnel records to verify such compliance. 51.1.2 The Developer warrants compliance with the Federal Immigration and Nationality Act (FINA) and all other federal immigration laws and regulations related to the immigration status of its employees. The Developer shall obtain statements from its Subcontractors certifying compliance and shall furnish the statements to the Assistant Director upon request. These warranties shall remain in effect through the term of this Agreement. The Developer and its Subcontractors shall also maintain Employment Eligibility Verification forms (I-9) as required by the U.S. Department of Labor’s Immigration and Control Act for all employees performing work under the Agreement. I-9 forms are available for download at USCIS.GOV. 51.1.3 The County may request verification of compliance for any employees or Subcontractors performing work under this Agreement. Should the County Section 1 General Provisions Page 22 of 55 NAC El Mirage HOME ARP Agreement either suspect or find that the Developer or any of its Subcontractors are not in compliance, then the County may pursue any and all remedies allowed by law, including, but not limited to suspension of work, termination of this Agreement for default, and suspension or debarment (or both) of the Developer. All costs necessary to verify compliance are the responsibility of the Developer and its Subcontractor(s). 51.2 Arizona Law 51.2.1 The Developer warrants that it will comply with A.R.S. § 41-4401 (e-verify requirements) and further acknowledges that: 51.2.2 The Developer and tits Subcontractors and Vendors, if any, warrant their compliance with all federal immigration laws and regulations that relate to their employees and their compliance with A.R.S. § 23-214; 51.2.3 A breach of a warranty under Subparagraph 47.2.1 above shall be deemed a material breach of this Agreement and the County may immediately terminate this Agreement without liability; and 51.2.4 The County and any contracting government entities retain the legal right to inspect the papers and employment records of any employees of the Developer and its Subcontractors and Vendors who work on this Agreement to ensure that the Developer and its Subcontractors and Vendors are complying with the warranty provided under Subparagraph 47.2.1 above and that the Developer agrees to make all papers and employment records of such employee(s) available during normal working hours in order to facilitate such an inspection. 52.0 EMPLOYMENT DISCLAIMER 52.1 This Agreement is not intended to constitute, create, give rise to, or otherwise recognize a joint venture agreement, partnership, or other formal business association or organization of any kind amongst the Parties, and the rights and obligations of the Parties shall be only those expressly set forth in this Agreement. 52.2 The Parties agree that no individuals performing activities under this Agreement on behalf the Developer are to be considered a County employee, and no rights of County civil service, County retirement, or County personnel rules shall accrue to such individuals. The Developer shall have total responsibility for all its 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 shall defend and hold the County harmless with respect thereto. 52.3 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. 53.0 CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION 53.1 The Developer, 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 Section 1 General Provisions Page 23 of 55 NAC El Mirage HOME ARP Agreement participant in accordance with 2 C.F.R. Part 180, certifies to the best of its knowledge and belief that it and its principals: 53.1.1 Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal department or agency or any state, or local jurisdiction; 53.1.2 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; 53.1.3 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 54.1.2 above; and 53.1.4 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. 53.2 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 54.0 DEVELOPER EMPLOYEE WHISTLEBLOWER RIGHTS AND REQUIREMENT TO INFORM EMPLOYEES OF WHISTLEBLOWER RIGHTS 54.1 The Developer agrees that this Agreement and employees working on this Agreement will be subject to the whistleblower rights and remedies in the pilot program on contractor employee whistleblower protections established at 41 U.S.C. § 4712 by Section 828 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112–239) and Section 3.908 of the Federal Acquisition Regulation; 54.2 The Developer 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 the Developer and copies provided to the County upon request; and 54.3 The Developer shall insert the substance of this clause, including this Subparagraph, in all Subcontracts over the simplified acquisition threshold ($250,000 as of June 2021). 55.0 WRITTEN CERTIFICATION PURSUANT TO A.R.S. § 35-393.01 If the Developer engages in for-profit activity and has 10 or more employees, and if this Agreement has a value of $100,000 or more, then the Developer certifies it is not currently engaging in and agrees for the duration of this Agreement not to 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. 56.0 SURVIVAL The indemnification, hold harmless, defense, and non-liability provisions of this Agreement shall have full force and effect notwithstanding any other provisions in this Agreement and shall survive the termination or expiration of this Agreement. Section 1 General Provisions Page 24 of 55 NAC El Mirage HOME ARP Agreement 57.0 FORCE MAJEURE 57.1 Neither Party shall be liable for failure of performance, nor incur any liability to the other Party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused by events, occurrences, or causes beyond the reasonable control and without negligence of the Parties. Such events, occurrences, or causes will include Acts of God/Nature (including fire, flood, earthquake, storm, hurricane, or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, riots, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, lockout, blockage, embargo, labor dispute, strike, pandemic, and interruption or failure of electricity or telecommunication service. 57.2 Each Party, as applicable, shall give the other Party notice of its inability to perform and particulars in reasonable detail of the cause of the inability. Each Party must use best efforts to remedy the situation and remove, as soon as practicable, the cause of its inability to perform or comply. 57.3 The Party asserting Force Majeure as a cause for non-performance shall have the burden of proving that reasonable steps were taken to minimize delay or damages caused by foreseeable events, all non-excused obligations were substantially fulfilled, and the other Party was timely notified of the likelihood or actual occurrence that would justify such an assertion, so that other prudent precautions could be contemplated. 58.0 UNIQUE ENTITY IDENTIFIER (UEI) AND SYSTEM FOR AWARD MANAGEMENT The Developer shall have a valid Unique Entity Identifier (UEI) number and an active profile in the federal System for Award Management, or SAM.gov. Documentation of the UEI Number must be included in all project files. The Developer must remain current with their registration throughout the term of the Agreement. Developer and subcontractors will not receive a subaward until that entity has provided its UEI number. 2 C.F.R. § 25.300; Appendix A to 2 C.F.R. § 25. 59.0 UYGHUR FORCED LABOR PREVENTION ACT (UFLPA) 59.1 The Developer warrants and certifies that it does not currently, and agrees for the duration of the agreement that it will not, use: 59.1.1 The forced labor of ethnic Uyghurs in the People’s Republic of China. 59.1.2 Any goods or services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China. 59.1.3 Any contractors, subcontractors or suppliers that use the forced labor or any goods or services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China. 59.2 If the Developer becomes aware during the term of the Agreement that the Developer is not in compliance with this paragraph, the Developer shall notify the County within five business days after becoming aware of the noncompliance. Failure of the Developer to provide a written certification that the Developer has remedied the noncompliance within one hundred eighty (180) days after notifying the public entity of its noncompliance, this Agreement shall terminate unless the Term of this Agreement shall end prior to said one hundred eighty (180) day period. 60.0 PROVISIONS REQUIRED BY LAW Section 1 General Provisions Page 25 of 55 NAC El Mirage HOME ARP Agreement Each and every provision of law and any clause required by law to be in this Agreement will be read and enforced as though it were included herein and, if through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon the application of either party, this Agreement will promptly be physically amended to make such insertion or correction. Page 26 of 55 NAC El Mirage HOME ARP Agreement SECTION 2 SPECIAL PROVISIONS Section 2 Special Provisions Page 27 of 55 NAC El Mirage HOME ARP Agreement 1.0 STANDARDS The Developer shall perform the work and provide the services identified in the Work Statement and the Developer shall immediately notify the County whenever the Developer is unable to, or anticipates an inability to, perform any of the work, or provide any of the services required by the terms of this Agreement. The Developer acknowledges that any inability to perform the work and provide the services, or comply with the standards, set forth in this Agreement may subject the Developer to the remedies provided in the Default and Remedies for Noncompliance established in the General Provisions. 2.0 COMPLIANCE WITH LAWS, RULES & REGULATIONS This Agreement and the Parties to it are subject to all applicable federal, state, or local laws, rules, and regulations. The Developer shall comply with all applicable laws, rules, and regulations, without limitation to those designated within this Agreement. Refer to Paragraph 17.0, (Default and Remedies for Noncompliance) provided in Section 1 (General Provisions). 3.0 COMPLIANCE WITH REQUIREMENTS REGARDING ELIGIBILITY FOR PUBLIC BENEFITS 3.1 The Developer shall comply with state and other laws regarding eligibility for public benefits, including A.R.S. §§ 1-501 and 1-502, which state that public benefits shall only be provided to eligible applicants who are citizens of the United States, or are Qualified Non-Citizens: 3.1.1 All applicants authorized to receive public benefits must provide documentation of their lawful presence in the United States through a verification process. 3.1.2 All eligible applicants must also execute an affidavit stating that the documentation provided during the verification process to prove citizenship or qualified non-citizen is true. 3.1.3 The Affidavit Demonstrating Lawful Presence in the United States or similar form shall be used to document compliance with requirements listed above. 3.1.4 Maricopa County and its subcontracted entities are required to report “discovered violations” of federal immigration law. 3.1.5 Federal public benefits are defined in A.R.S. § 1-501 as any grant, contract, loan, professional license, or commercial license provided by an agency of the United States or by appropriated funds of the United States; and any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the United States or by appropriated funds of the United States. 3.1.6 State or local public benefits are defined in A.R.S. § 1-502 as any grant, contract, loan, professional license, or commercial license provide by an agency of the state or local government or by appropriated funds of a state or local government; and any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a state or local government or by appropriated funds of a state or local government. Section 2 Special Provisions Page 28 of 55 NAC El Mirage HOME ARP Agreement 3.2 Programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) that meet the following conditions are exempt from A.R.S. §§ 1-501 and 1-502: 3.2.1 deliver in-kind services at the community level, including through public or private nonprofit agencies; 3.2.2 do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the individual recipient’s income or resources; and 3.2.3 are necessary for the protection of life or safety. 4.0 AUDIT REQUIREMENTS In accordance with A.R.S. § 11-624, the Developer shall, at its own expense, file with the County by March 31st of each Agreement year, either: 4.1 Audited financial statements prepared in accordance with federal single audit requirements; or 4.2 Financial statements prepared in accordance with generally accepted accounting principles audited by an independent certified public accountant; or 4.3 A Comprehensive Annual Financial Report, prepared in accordance with generally accepted accounting principles audited by an independent certified public accountant. 5.0 SPECIAL FEDERAL AND PROJECT PROVISIONS 5.1 In accordance with HUD HOME Program regulations, the Developer agrees to use HOME funds pursuant to the Five-Year Consolidated Plan and the Annual Action Plan as approved by HUD and all requirements of 24 C.F.R. § 92. The Developer will require that this requirement is included in the award documents for all subawards at all tiers (including Subcontracts, subgrants, and agreements under grants, loans, and cooperative agreements) and that all Subcontractors and Vendors shall certify and disclose accordingly. The Annual Action Plan is hereby incorporated by reference into this Agreement. The project activities are described in Section 3 (Work Statement). The Developer shall be responsible to provide reports of all activities related to the Work Statement. The Developer agrees to submit to the County the following reports: 5.1.1 Quarterly Performance Reports: due on the 15th of January, April, July, and October of the preceding three (3) months (i.e., the July report covers the months of April, May, and June). Reports shall address all project activities described in the Work Statement. Failure to submit timely Quarterly Performance Reports will result in suspension of reimbursement of funds requested until all reports are brought current. 5.1.2 Request for Reimbursements: The Request for Reimbursement Form must include all supporting documentation, a Match Log, and Summary of Project Proceeds/Recaptured Funds Report. The Developer will complete the documents and submit them to the County for approval. 5.1.3 HOME Setup Reports: due within one (1) year after the date this Agreement is fully executed. According to 24 C.F.R. § 92.250 (b): Before Setup Reports are submitted, the Developer must evaluate the project in accordance with guidelines that it has adopted for determining a reasonable level of profit or return its investment in a project and must not commit or invest any more HOME funds, alone or in combination with other governmental assistance, than are necessary to provide quality affordable housing that is financially viable for a reasonable period (at a minimum, the Section 2 Special Provisions Page 29 of 55 NAC El Mirage HOME ARP Agreement period of affordability in accordance with 24 C.F.R. §§ 92.252 and 92.254) and that will not provide a profit or return on its investment that exceeds the Developer’s established standards for the size, type, and complexity of the project. 5.1.4 HOME Completion Report: due no later than sixty (60) days after final payment is requested. The HOME Completion Report must include all required documents as described in this Agreement. Within ten (10) business days after receipt of the HOME Completion Report, the County will enter project completion data into the HUD Exchange Integrated Disbursement and Information System (IDIS). The date the HOME Completion Report is entered into IDIS is the date the affordability period commences for each activity. 5.1.5 Initial Request for Reimbursement form: with required documentation for each activity is due within 45 (forty-five) days after submitting a HOME Setup Report. 5.1.6 Other HUD: required reporting data as applicable. 6.0 PROGRAM INCOME All Program Income generated from this Agreement shall be used to fund either the acquisition or rehabilitation (or both) of additional HOME eligible properties to be sold to qualified low-income families as defined in 24 C.F.R. § 92. The HOME requirements shall continue to apply if the Developer receives and uses Program Income, even if the Program Income funds are earned and expended after the expiration of this Agreement. 7.0 REAL PROPERTY ACQUIRED OR IMPROVED WITH HOME FUNDS Upon expiration of this Agreement, any real property under the Developer’s control that was acquired or improved in whole or in part with HOME funds must be occupied by low- or very-low-income households (or both) and in compliance with HOME occupancy limits and must meet the requirements to qualify as affordable housing subject to encumbrances and obligations described in any applicable recorded deed restrictions. The option to use deed restrictions must include period of affordability set forth in 24 C.F.R. §§ 92.252 and 92.254. 8.0 DE-OBLIGATION 8.1 The County may de-obligate funds under this Agreement under any one or more of the following circumstances upon written notice to the Developer: 8.1.1 The Developer completes performance under the Work Statement without using all funds provided by the County under this Agreement; 8.1.2 The County’s original allocation was a loan, and the Developer paid the loan; 8.1.3 A Program activity under the Work Statement is cancelled or changed for reasons other than non-performance; or 8.1.4 This Agreement has been terminated. 8.1.5 The NEPA Environmental Review is not approved. 9.0 REDUCTION IN FUNDS 9.1 The County, through an Amendment, may reduce Agreement funds under either of the following circumstances: 9.1.1 The County determines that the Developer failed to utilize the funds provided by this Agreement in compliance with the terms and conditions outlined herein; or Section 2 Special Provisions Page 30 of 55 NAC El Mirage HOME ARP Agreement 9.1.2 The Developer failed to perform in accordance with Section 3 (Work Statement) and identified timelines. 10.0 REPAYMENT OF FUNDS The Developer agrees to repay funds provided under this Agreement for noncompliance with the terms of this Agreement. Repayment shall be in accordance with the terms of this Agreement or the requirement of applicable laws and regulations, including continuing use compliance. Repayment of funds is required by HUD for failed projects during the period of affordability for projects financed under this Agreement. The County may specify in writing the terms of the repayment or alternative terms in lieu of repayment. However, in no case shall repayment or compliance with the alternative terms be accomplished any later than sixty(60) calendar days following the written determination of non-compliance by the County. 11.0 ADMINISTRATIVE REQUIREMENTS 11.1 The County is responsible for ensuring HUD HOME Program funds are administered in accordance with the HOME regulations, 24 C.F.R. §§ 92, et seq. The County shall monitor the Developer’s activities to ensure compliance with the following: 11.1.1 FINANCIAL RECORDS: accounting system and financial records comply with the applicable requirements and standards of 2 C.F.R. §§ 200, et seq. and are subject to monitoring from time to time by either the County or by HUD. 11.1.1.1 The Developer agrees to adhere to accounting principles and procedures, to utilize adequate internal controls, and maintain necessary source documentation for all costs incurred. The Developer further agrees to maintain an adequate accounting system that provides for appropriate grant accounting (including calculation of project proceeds). 11.1.1.2 The Developer shall adhere to applicable audit requirements as described in, and in accordance with, 2 C.F.R. §§ 200, et seq. In addition, the Developer must provide annual single-audit reports or annual audited financial statements to the County. 11.1.1.3 The Developer shall adhere to the repayment of investment requirements set forth in 24 C.F.R. § 92.503. Any HOME Funds invested in housing that do not meet the affordability requirements for the period specified in either 24 C.F.R. § 92.252 or § 92.254, as applicable, must be repaid in accordance with 24 C.F.R. § 92.503(b)(3). 11.1.2 DOCUMENTATION AND RECORD KEEPING 11.1.2.1 Records to be Maintained: The Developer shall maintain all records required by the federal regulations specified in 24 C.F.R. § 92.508 that are pertinent to the activities to be funded under this Agreement. Such records shall include, but not be limited to, records: 11.1.2.1.1 Providing a full description of each activity undertaken and its impact; 11.1.2.1.2 Required to determine the eligibility of activities; 11.1.2.1.3 Demonstrating compliance with environmental review requirements; Section 2 Special Provisions Page 31 of 55 NAC El Mirage HOME ARP Agreement 11.1.2.1.4 Required to document the acquisition, improvement, use, or disposition of real property acquired or improved with HOME assistance (Properties retained shall continue to meet eligibility criteria); 11.1.2.1.5 Demonstrating citizen participation; 11.1.2.1.6 Demonstrating compliance regarding acquisitions, displacement, relocation, and replacement housing; 11.1.2.1.7 Demonstrating continuing compliance for all activities and compliance with recapture provisions of the affordability standards; 11.1.2.1.8 Documenting compliance with the fair housing and equal opportunity components of the HOME Program; 11.1.2.1.9 Required by 24 C.F.R. § 570.502, 2 C.F.R. §§ 200, et seq., and OMB Circulars; 11.1.2.1.10 Other records necessary to document compliance with HOME Program requirements; 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. § 135; 11.1.2.1.12 Demonstrating compliance with deeds of trust, promissory notes, and forgivable loans; 11.1.2.1.13 Supporting that the Developer has maintained client data demonstrating all clients served have met the income and other criteria required by federal law and that no unlawful discrimination occurs in the solicitation or selection process of low-income persons or groups and that no conflict of interest exists, as described in 24 C.F.R. § 92.356; 11.1.2.1.14 Documenting compliance with underwriting and subsidy layering requirements, including the requirement that the Developer will not invest any more HOME funds in combination with other federal assistance than is necessary to provide affordable housing, as described in 24 C.F.R. § 92.250 and further described in HUD Notice CPD 15-11; and, 11.1.2.1.15 Demonstrating compliance with federal, state, and local laws and regulations, including compliance with A.R.S. §§ 1-501 and 1-502. 11.1.2.2 Outcome Measures – The Developer shall maintain data that supports the accomplishment of the desired outcomes as indicated in the Work Statement. 11.1.2.3 Disclosure – The Developer understands that client information collected under this Agreement is private and the use or disclosure of such information, when not directly connected with the administration of the County’s or the Developer’s responsibilities with respect to services provided under this Agreement, is prohibited unless written consent is obtained from such person receiving service. Section 2 Special Provisions Page 32 of 55 NAC El Mirage HOME ARP Agreement 11.1.2.4 Program Activity Reports – Such reports as required by the County including, but not limited to, HOME Setup/Completion Reports, Quarterly Performance Reports, Quarterly Project Proceeds Reports, Match Reports, MBE/WBE information, and other HUD-required reporting data, as applicable, shall be submitted at the completion of each Program that is described under the Work Statement. 11.1.2.5 Audits and Inspections – All of the records with respect to any matters covered by this Agreement shall be made available to the County, its designees, and the federal government, at any time during normal business hours, as often as the County deems necessary, to audit, examine, and make excerpts or transcripts of all relevant data. Any relevant deficiencies noted in audit reports shall be addressed by the Developer within 45 days after receipt by the Developer. Failure of the Developer to comply with the above audit requirements shall constitute a violation of this Agreement and may result in the withholding of future payments. The Annual Audit requirement is applicable to all levels of funding received by the Developer under this Agreement, even if the level of funding is less than the current thresholds cited in 2 C.F.R. § 200.501. 11.1.2.6 Performance Monitoring – The County will monitor the Developer to determine whether HOME funded activities are implemented and administered in accordance with all applicable federal requirements and gauge performance of the Developer against goals and performance standards required in this Agreement. The Developer shall ensure that all required files and documentation are available at scheduled monitoring. The failure of the Developer to administer, implement, and perform as determined by federal regulations and by the County shall constitute non-compliance with this Agreement. Non- compliance is a violation of this Agreement and may result in the withholding of future payments. 12.0 ENVIRONMENTAL REVIEW CONDITIONS 12.1 Completion of the Environmental Review Record (ERR) is mandatory before taking any physical action on a site or entering into choice-limiting contracts. Only exempt activities such as administration may be taken and reimbursed by the County prior to receiving a written release of HOME funds to the Developer. Exempt activities described in 24 C.F.R. § 58.34(a)(1)-(11) are activities that generally have no physical impact on the environment. If federal funds are involved in an activity, then neither federal nor non-federal funds may be expended or committed by contract (conditional or not) for property acquisition, rehabilitation, conversion, lease, repair, or construction activities until either HUD or the County provide the Developer with written authorization based on approval of an ERR. 12.2 An option agreement (to purchase land or a single-family residence) on a proposed site or property is allowable prior to the completion of the environmental review if the option agreement is contingent upon a HUD authorization to use funds based on the completion of the ERR. The cost of the option must be a nominal portion of the purchase price. Section 2 Special Provisions Page 33 of 55 NAC El Mirage HOME ARP Agreement 12.2.1 The Developer agrees to comply with: The National Environmental Policy Act of 1969 (P.L. 91-190) pursuant thereto 40 C.F.R. Parts 1500 – 1508; Environmental Review Procedures for Entities Assuming HUD Environmental Responsibilities pursuant thereto Title 24 C.F.R. Part 58, Subpart A; and all conditions required in the process of the environmental assessment. 12.2.1.1 Clean Air Act, 42 U.S.C. § 7401, et seq., as amended. 12.2.1.2 Federal Water Pollution Control Act, as amended, 33 U.S.C. §§ 1251, et seq, as amended, Section 1318 relating to inspection, monitoring, entry, reports, and information, and all regulations and guidelines issued thereunder. 12.2.1.3 Environmental Protection Agency (EPA) regulations pursuant to 40 C.F.R. § 50, as amended. 12.2.1.4 The Developer agrees to comply with conditions set forth by the Maricopa County Air Quality Department or other County agency, as required. 12.2.1.5 Flood Disaster Protection - In accordance with the requirements of the Flood Disaster Protection Act of 1973 (42 U.S.C. § 4001), the Developer shall ensure that for activities located in an area identified by FEMA as having special flood hazards, flood insurance under the National Flood Insurance Program is obtained and maintained as a condition of financial assistance for acquisition or construction purposes. The Developer shall require the homeowner to obtain and maintain flood insurance as a condition of funding, or funds shall not be utilized. 12.2.1.6 Historic Preservation - The Developer shall comply with the Historic Preservation requirements set forth in the National Historic Preservation Act of 1966 (16 U.S.C. § 470) and the procedures set forth in 36 C.F.R. § 800, Advisory Council on Historic Preservation Procedures for Protection of Historic Properties, insofar as they apply to the performance of this Agreement. 12.2.2 Release of Funds (ROF) - No funds may be encumbered prior to the completion of the Environmental Review. The ERR must be completed before any funds are obligated. Funding is also conditioned upon the completion of the ERR of every activity site by address. The responsibility for certifying the appropriate ERR and ROF shall rest with the County. It is the responsibility of the Developer to notify the County and to refrain from making any commitments and expenditures on a site until a ROF has been issued by the County. Failure to meet these conditions will mean that requested funds will not be disbursed. 13.0 ADDITIONAL CERTIFICATIONS, WARRANTIES, AND AGREEMENTS 13.1 The Developer agrees to undertake the same obligations as the County has undertaken to HUD pursuant to the County’s Annual Action Plan (included in this Agreement by reference) and shall adhere to the federal Certifications reference below, including Attachment 1 - Certification for a Drug-Free Workplace (HUD form 50070) and Attachment 2 - Certification of Payments to Influence Federal Transactions (HUD form 50071). The Developer shall hold the County harmless, defend, and indemnify the County against any damages or other liabilities that the Section 2 Special Provisions Page 34 of 55 NAC El Mirage HOME ARP Agreement County may incur with respect to HUD as a result of any failures on the part of the Developer. 13.2 The Developer agrees: 13.2.1 To ensure that the total HOME investment in each unit does not exceed the maximum per unit subsidy (24 C.F.R. § 92.250) for the area in which the property is located. This limit is updated annually. Refer to Section 3 Subparagraph 11 of this Agreement. 13.2.2 To ensure that the period of affordability imposed on the project reflects the per unit subsidy limit. The minimum affordability period is five years for HOME subsidies of less than $15,000 per unit; ten years for subsidies of $15,000 to $40,000; and 15 years for subsidies greater than $40,000, new construction of rental housing has a Period of Affordability of 20 years and refinancing of rental housing has a minimum Period of Affordability of 15 years 13.2.3 To ensure that the annual Homeownership Value Limits are not exceeded. HOME funds for homebuyer assistance or single-family rehabilitation projects must have an initial purchase price that does not exceed 95% of the median purchase price for Maricopa County These limits apply to homeownership units assisted with HOME funds for the following single- family activity types: new housing construction for resale; homebuyer assistance; acquisition with rehabilitation for resale; and owner-occupied housing rehabilitation. This limit is updated annually. Refer to Attachment 3 of this Agreement. 13.2.4 To utilize and make available the HOME funds in conformity with the non- discrimination and equal opportunity requirements set out in the HUD regulations in the National Housing Affordability and Stability Act (24 C.F.R. §§ 92.350-92.454), which include: 13.2.5 Implementation of the Fair Housing Act, (42 C.F.R. §§ 3601-3620), and implementing regulations at 24 C.F.R. § 100 (discriminatory conduct under the Fair Housing Act), Executive Order 11063 (Equal Opportunity in Housing) as amended by Executive Order 12259 (leadership and coordination of fair housing in federal programs) (3 C.F.R. §§ 1958-1963 Comp., p. 652 and 3 C.F.R. § 1980, Comp. p. 307) and implementing regulations at 24 C.F.R. Part 107 (nondiscrimination and equal opportunity in housing under Executive Order 11063), and Title VI of the Civil Rights Act of 1964 (42 U. S. C. §§ 2000d, et seq.), and implementing regulations at 24 C.F.R. Part 1 (Nondiscrimination in Federally Assisted Programs of HUD); 13.2.6 Affirmatively further fair housing, which includes taking appropriate actions to overcome the effects of any impediments identified in the County’s “Analysis of Impediments to Fair Housing Choice” and maintain records reflecting any actions taken in regard to fair housing; 13.2.7 Adhere to Executive Order 13166 (Improving Access to Services for Persons with Limited English Proficiency) in accordance with Title VI of the Civil Rights Act of 1964; 13.2.8 Implementation of the prohibitions against discrimination on the basis of age under the Age Discrimination Act of 1975 (42 U.S.C. §§ 6101, et seq.) and the regulations at 24 C.F.R. § 146 (nondiscrimination on the basis of age in HUD programs or activities receiving federal financial assistance); 13.2.9 Implementation of the prohibitions against discrimination on the basis of handicap under Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. Section 2 Special Provisions Page 35 of 55 NAC El Mirage HOME ARP Agreement §§ 794, et seq.) and implementing regulations at 24 C.F.R. § 8 (nondiscrimination based on handicap in federally assisted programs and activities of HUD) and the Americans with Disabilities Act 1990 (42 U.S.C. §§ 12101, et seq.); 13.2.10 Adhere to the requirements of the Executive Order 11246 (Equal Employment Opportunity) and the regulations issued under the Order at 41 C.F.R. Chapter 60 (3 C.F.R. §§ 1964-65, Comp, p. 339); 13.2.11 Implementation of the requirements of Section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. § 1702u) (Employment Opportunities for Business and Lower Income Persons in Connection with Assisted Activities); 13.2.12 Implementation of the requirements of Executive Orders 11625 and 12432 regarding MBE development and 12138 regarding WBE, and Regulations S. 85.36 (e) and of Section 281 of the National Housing Affordability and Stability Act; and 13.2.13 Implementation of the requirements of the HUD 246 Rule (24 C.F.R. Part 5 Final Rule 5863) to ensure equal access to housing and services regardless of gender identity. 13.3 The Developer agrees that it will prepare and adopt acceptable procedures and requirements for affirmatively marketing units in the HOME Activities, when HOME Program-assisted housing contains five (5) or more rental units, by providing information about the availability of HOME Program-assisted units that are vacant at the time of completion or that later become vacant. The Developer shall make good faith efforts to provide information and to otherwise attract eligible persons from all racial, ethnic, and gender groups in the housing market to the available housing during the period of affordability. These procedures and requirements are not applicable when units are occupied by families referred from a Public Housing Authority's (PHA) waiting list, or to families receiving tenant-based rental assistance provided from HOME funds. 13.4 HOME funds may not be used for operations or modernization of public housing projects financed under the Housing Act of 1937. 13.5 The County, as the participating jurisdiction, assumes all the responsibilities for environmental review, decision making, and action under the National Environmental Policy Act of 1969 (42 U.S.C. § 4321) and the other provisions of the law that would apply to HUD were HUD to undertake such Activities as Federal Activities in accordance with 24 C.F.R. § 58 (environmental review procedures for entities assuming HUD environmental responsibilities). The County will assume the responsibilities for the Request for Release of Funds. The Developer agrees not to commit or incur expenditures for HOME activities until this environmental review process has been completed. Should it be determined that the Developer has incurred expenses in violation of the NEPA requirements, the Developer will be responsible for the full costs for such expenditures and repayment of any related reimbursements. The Developer shall provide all necessary assistance to the County in completing this environmental review process. 13.6 The Developer agrees to comply with the acquisition and relocation requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA) (42 U.S.C. §§ 4291-4655) and the governmental implementing regulations at 49 C.F.R. Part 24; and follow a residential anti-displacement and relocation assistance plan required under §104(d) of the Housing and Community Development Act of 1974, as amended, in connection with any activity assisted with funding as they apply to the HOME Program. Section 2 Special Provisions Page 36 of 55 NAC El Mirage HOME ARP Agreement 13.7 The Developer shall comply with the Davis-Bacon Act (40 U.S.C. §§ 276a, et seq.), Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 327, et seq.) related acts, and the provisions of 24 C.F.R. § 24 regarding Government Debarment and Suspension as they apply to this HOME Program. 13.8 The Developer shall comply with the Flood Disaster Protection Act of 1973 (42 U.S.C. §§ 4001, et seq.) as they apply to this HOME Program. 13.9 The Developer shall comply with the Drug-Free Workplace Act of 1988 as it applies to the HOME Program. 13.10 Housing assisted with HOME Program funds constitutes HUD-assisted housing for the purposes of the Lead-Based Paint Poisoning Prevention Act (42. U.S.C. §§ 4801, et seq.) and is therefore subject to 24 C.F.R. § 35. 13.11 No person who is an employee, agent, consultant, officer or elected official, or appointed official who exercises or has exercised any functions or responsibilities with respect to activities assisted with HOME funds or who is in a position in a decision making process or gains inside information with regard to these activities, may obtain a financial interest or benefit from a HOME-assisted activity, either for himself/herself or those whom the person has family or business ties, during his/her tenure or for one year thereafter. 14.0 SUBCONTRACTS AND VENDORS 14.1 Approvals – Unless expressly authorized in this Agreement, exempt activities such as architectural, engineering, and administration may not be undertaken and reimbursed by the County prior to receipt of HUD Request Release of Funds (RROF). Exempt activities described in 24 C.F.R. § 58.34(1)(1)-(11) are activities that generally have no physical impact on the environment. Otherwise, the Developer shall not expend or commit federal or non-federal funds by contract (conditional or not) for property acquisition, rehabilitation, conversion, lease, repair, or construction activities, until HUD has provided written authorization based on approved ERR. Any pre-Agreement costs entered into by Subcontract with any agency or individual in the performance of this Program that are not exempt activities without Release of Funds (ROF) from the County prior to the execution of such Agreement. 14.2 UEI Number: All Subcontractors shall have a valid UEI number and an active profile in the federal System for Award Management (SAM). Subcontractors will not receive a subaward until that entity has provided its UEI number. 2 C.F.R. § 25.300; Appendix A to 2 C.F.R. § 25. 14.3 Fees – The Developer and all Subcontractors under this Agreement shall not charge servicing, origination, or other fees for the costs of administering the HOME Program, except as permitted by 24 C.F.R. § 92.214(b)(1). 14.4 Selection Process – The Developer shall ensure that all Subcontracts in the performance of this Agreement are awarded on a fair and open competitive basis. Executed copies of all Subcontracts shall be forwarded to the County along with documentation, if requested, concerning the selection process. 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 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. § 135. The Developer has the responsibility of determining Section 3 eligibility. Section 2 Special Provisions Page 37 of 55 NAC El Mirage HOME ARP Agreement 14.6 Monitoring – The Developer shall monitor/review all subcontracted services to assure contract compliance. Results of monitoring efforts shall be summarized in Quarterly Performance Reports and supported with documented evidence, if requested, of follow-up actions taken to correct areas of noncompliance. 15.0 THE COUNTY CERTIFIES 15.1 That a public purpose is served by the County contracting for activities identified in Section 3 (Work Statement). 15.2 That the HOME Program funds designated for the Work Statement activities constitute reasonable and prudent assistance. 16.0 PROGRAM COMPLETION 16.1 Upon completion of the Agreement activities, any Agreement funds not expended shall be retained by the County for reallocation as defined by the Maricopa HOME Consortium Policies and Procedures. 16.2 The disposition of any property purchased during the term of this Agreement shall follow Section 1 (General Provisions), Paragraph 47.0 (Property). 16.3 The Developer shall continue to be responsible for compliance activities until all HOME Program requirements and contractual obligations are met, including affordability restrictions. The Developer’s obligations shall not end until all close- out requirements are completed. The County will notify the Developer in writing that a Completion Report is due to the County within sixty (60) days after one of the following occurrences: 16.3.1 Funds have been expended for the activity; 16.3.2 The Work Statement has been completed; 16.3.3 This Agreement has expired; or 16.3.4 The Agreement has otherwise been terminated. 16.4 Following the receipt and approval of the Completion Report for each activity, the County will notify the Developer in writing that each activity is closed. In compliance with 24 C.F.R. § 92.502(d), all project completion data shall be entered into IDIS by the County within 120 days after the final drawdown. Project completion means projects have all necessary title transfer and construction work completed, projects comply with HOME requirements including property standards set forth at 24 C.F.R. § 92.251, the final draw has been disbursed, and the projection completion data has been entered into IDIS. 16.5 For the purposes of a rental project, the following shall apply: 16.5.1 The project shall be completed when the site receives a Certificate of Occupancy; 16.5.2 It is not required for a beneficiary to be identified for the project to be considered complete. Vacant rental units may be marked as vacant when completion data is entered into IDIS. 16.5.3 If any rental unit remains unoccupied six (6) months after the date of project completion, the Developer must provide the County information about marketing efforts to place occupants in the unit and, if appropriate, an enhanced plan for marketing the unit so that it is leased as quickly as possible. 16.5.4 Within eighteen (18) months after the date of project completion, if efforts to market the unit are unsuccessful and the unit is not occupied by an eligible beneficiary (or beneficiaries), the Developer shall be required to repay all HOME funds invested in the unit. Section 2 Special Provisions Page 38 of 55 NAC El Mirage HOME ARP Agreement 17.0 FAILURE TO MAKE PROGRESS 17.1 The failure of the Developer to make progress according to the Work Statement may result in the termination of this Agreement, de-obligation of funds, or recapture of funds. The Developer agrees to meet with the County at the site at which the funded activity is to take place to discuss progress and allow the County to provide technical assistance if: 17.1.1 The Developer fails to complete an Environmental Review pursuant to Section 2 (Special Provision) Paragraph 12.0 (Environmental Review Conditions) within one hundred and eighty (180) calendar days after the date this Agreement is executed; 17.1.2 The Developer fails to commit funds to a specific local project in accordance with the terms of this Agreement within eighteen (18) months after the date of full execution of this Agreement. Commit for the purposes of this paragraph shall have the same meaning as in 24 C.F.R. § 92.2(2)(i)- (iii). 17.1.3 The Developer fails to expend HOME funds in performance of project activities in accordance with the terms of this Agreement within twenty-four (24) months after the date of full execution of this Agreement. 17.1.4 Within six (6) months after the date of project completion, if a unit remains unoccupied, then the Developer must provide the County information about current marketing efforts and, if appropriate, an enhanced plan for marketing the unit so that it is leased as quickly as possible. Within 18 months from the date of project completion, if efforts to market the unit are unsuccessful and the unit is not occupied by an eligible tenant, then HUD will require repayment of all HOME funds invested in the unit. A unit that has not served a low- or very low-income household has not met the purpose of the HOME program. Therefore, the costs associated with the unit are ineligible. This tracking provides the County with early notice of any units at risk of going unoccupied as described in 24 C.F.R. § 92.252. 17.2 The County will terminate this Agreement and recapture funds if the Developer does not perform the activities described in the Work Statement of this Agreement. The County, in its sole discretion, may forgo providing technical assistance and require repayment of funds as outlined in this Agreement under Section 2 (Special Provisions), Paragraph 10.0, or terminate the Agreement for cause under Section 1 (General Provisions), Paragraph 9.0. 18.0 REVERSION OF ASSETS Unexpended funds must be de-obligated and returned to the County for reallocation. At the expiration of this Agreement, the County, upon recommendation of the Maricopa HOME Consortium staff, may reallocate any unencumbered funds per the Consortium reallocation policy, as stated in the Maricopa HOME Consortium Intergovernmental Three- year Cooperative Agreement. A written letter to de-obligate funds will be sent to the Developer from the County a minimum of ninety (90) calendar days prior to termination of this Agreement 19.0 VIOLENCE AGAINST WOMEN REAUTHORIZATION ACT OF 2013 19.1 HOME rental units must comply with all HOME requirements for the period of affordability applicable to rental units, according to 24 C.F.R. § 92.254(a)(3). 19.2 The Developer then also must comply with VAWA 2013, which applies to all victims of domestic violence, dating violence, sexual assault, and stalking, regardless of Section 2 Special Provisions Page 39 of 55 NAC El Mirage HOME ARP Agreement sex, gender identity, or sexual orientation, and which must be applied consistent with all nondiscrimination and fair housing requirements. 19.3 The Developer must give a Notice of Occupancy Rights to tenants and applicants to ensure they are aware of their rights under VAWA, maintain an emergency transfer plan, and document incidents of domestic violence, dating violence, sexual assault, and stalking. Page 40 of 55 NAC El Mirage HOME ARP Agreement SECTION 3 WORK STATEMENT Section 3 Work Statement Page 41 of 55 NAC El Mirage HOME ARP Agreement MARICOPA COUNTY HOME Investment Partnerships Program - American Rescue Plan (HOME-ARP) American Rescue Plan Act (ARPA) DEVELOPER: NAC El Mirage Housing, LLC HOME-ARP Funds: $6,140,196 ($5,230,440 entitlement and $909,756 admin) ARPA Funds: $10,583,125 Activity Type: Acquisition and Development of Affordable Multifamily Rental and Non-Congregate Shelter Community Activity Name: The Flats @ EL Mirage (“Project”) 1.0 FUNDING HOME-ARP PY 21 HOME-ARP ADMIN PY21 ARPA TOTAL $5,230,440 $909,756 $10,583,125 $16,723,321 1.1 ARPA funds $10,583,125 for development of affordable housing must be expended before HOME ARP funds are utilized unless otherwise approved by the County. 1.1.1 ARPA funds must be fully expended by December 31, 2026. 1.2 HOME-ARP funds $4,924,214 shall be expended on development of non- congregate shelter (“NCS”). 1.2.2 HOME-ARP funds NCS funds must be fully expended by December 31, 2026. 1.3 HOME-ARP funds $1,215,982 shall be expended on Supportive Services. 1.3.3 HOME-ARP Supportive Services must be fully expended by June 30, 2030. 2.0 DETAILED SCOPE OF WORK 2.1 The Developer will utilize HOME-ARP and ARPA funds to acquire and construct a new multifamily rental community with 45 units and provide supportive services to those tenants. The project will service residence located within Maricopa County Urban County Cities of, City of El Mirage, Town of Youngtown, City of Tolleson and any unincorporated areas of Maricopa County West of 67th Avenue, and the City of Avondale, City of Peoria, and City of Surprise. The project is located at approximately 16102 N. El Mirage Rd, Surprise, AZ 85335, including parcels 501-78-070D and 501-78-065B. The project will benefit low- income families with an annual household income at or below 60% of the area median income (“AMI”). 32 units will be affordable housing units and 13 units will be NCS units; 13 HOME-ARP-assisted NCS units serving the qualified populations per the CPD Notice 21-10 and will support households experiencing homelessness with short-term housing program agreements with the opportunity to transition to permanent affordable units with successful completion of a supportive service program. 21 ARPA-assisted units serving households at or below 60% AMI. The remaining 11 units will be non-assisted and have the flexibility to act as a HOME-ARP-assisted or ARPA-assisted unit at the Developers discretion. All 45 units in the Project shall be “Floating Units” with respect to their allocation above. Floating Units means the total number of Section 3 Work Statement Page 42 of 55 NAC El Mirage HOME ARP Agreement County-Assisted Units in the Project is to be maintained for the Affordability Period and extended commitment period, but that the Developer may from time to time change the designation of individual units from a County HOME-ARP- Assisted or ARPA-Assisted Unit to a non-County-Assisted Unit so long as the total number of County HOME-ARP-assisted or ARPA-assisted Units and the Unit Mix at all times conform to the requirements of this Agreement. 2.2 The Developer will provide onsite supportive services including Street Outreach and Diversion; Individualized Case Management; Food Pantry; Basic Needs; A Healthy You Program – Health Care; Job Readiness and Financial training Workshops; Childcare Coordination of Care; Housing Stability Resources. In addition, the Developer operates supportive services located at multiple facilities throughout Maricopa County and can provide transportation services to tenants if needed. The onsite services will be staffed by Site Supervisor(s), Housing Navigator(s), Case Manager(s) and Case Aid(s).All HOME-ARP activities will follow the guidance provided in Notice CPD-21-10: Requirements for Use of Funds in the HOME-ARP Program 2.3 Project Staff: The Developer shall maintain staff qualified to perform the duties of the project. The Developer shall immediately notify the County regarding any changes in staff committed to the project. The County reserves the right to review the qualifications of new staff committed to the project after the execution of this Agreement. The Developer will be responsible for all communications with the Maricopa HOME Consortium, providing all updates and as needed reporting. In addition, any complaints will be the responsibility of the Developer. 2.4 Subcontractors: The Developer will oversee every aspect of the project. This oversight includes, but is not limited to, day-to-day operations; preparing budgets; managing the budget, timeline, and change orders; issuing a Request for Proposal and selecting the general contractor and Subcontractors. The Developer shall select Subcontractors in accordance with the Administrative Requirements of this Agreement. The Developer shall contract with responsible and qualified Subcontractors to perform the duties of the project. The Developer shall verify the qualifications of each Subcontractor through license verification, references, and SAM.gov. Section 3 Work Statement Page 43 of 55 NAC El Mirage HOME ARP Agreement 3.0 ACTIVITY GOALS: Activity Goal ACTIVITY GOALS Development of Affordable Rental Housing Supportive Services Acquisition and Development of Non-Congregate Shelters (“NCS”) Tenant Based Rental Assistance HOME -ARP ARPA HOME -ARP ARPA HOME- ARP ARPA HOME -ARP ARPA Estimated Number of New Units Developed 0 21 0 0 13 0 0 0 Estimated Number of Households to Benefit 0 21 45 0 13 0 0 0 45 Units total in the Project 11 units are non-HOME-ARP-Assisted or ARPA-Assisted. HOME-ARP- Assisted NCS is defined in this project as short-term housing where tenants will sign Housing Program Agreement (“HPA”). The HPA stay will be no less than 6 months but no more than 12 months with no lease agreement. Tenants will have the opportunity to leave HPA at any time with no penalty should suitable, affordable, sustainable housing be secured. The intent is for participants to utilize supportive services, gain stability and transition to transitional or permanent affordable units. ARPA-Assisted units will have a minimum lease of 6 months with renewals not extending past 2 years without the County’s approval. The intent is for participants to utilize supportive services, gain stability and transition to permanent affordable units. 4.0 LOGIC MODEL: PERFORMANCE INDICATORS: INPUTS/RESOURCES In order to accomplish proposed activities, the Developer will need the following: ACTIVITIES In order to address the issue, the Developer will conduct the following activities: OUTPUTS Once completed, these activities will produce the following: OUTCOMES When completed, these activities will lead to the following changes: IMPACT Long term changes: HOME-ARP and ARPA funding Acquire land in the West Valley and construction 45 multifamily rental community and provide supportive services to those living in the community 45 units. 13 HOME-ARP NCS units. 21 ARPA affordable housing units. 11 un-assisted flex units. Expand affordable housing opportunities. Safe and decent housing for low-income households experiencing homelessness. Improved Safe, stable, and affordable housing and reducing homelessness in the west valley. Long- term sustainability of rental housing. Keep families connected to Section 3 Work Statement Page 44 of 55 NAC El Mirage HOME ARP Agreement stability and self-sufficiency their West Valley community as contributing citizens. 5.0 QUALIFIED POPULATIONS OF PROPOSED BENEFICIARIES Qualified Populations Number Individuals Number of Families Homeless At Risk of Homelessness Fleeing, or Attempting to Flee, Domestic Violence, Dating Violence, Sexual Assault, Stalking, or Human Trafficking Other Populations: (1) Other Families Requiring Services or Housing Assistance to Prevent Homelessness Other Populations: (2) At Greatest Risk of Housing Instability Veterans and Families that include a Veteran Family Member (that meet one of the preceding populations) None - prioritizing units serving all of the above 180 45 TOTAL 180 45 (Only required for Development of Affordable Housing) HOME-ARP Rental Housing Occupancy Requirements Number of Units Total Number of Units Percentage of Units HOME-ARP Units assisted based on status as qualifying household (Minimum 70%) 0 0 70% HOME-ARP Units assisted based on income eligibility (not to exceed 30%) 0 0 30% TOTAL 0 0 100% 6.0 PREFERNCES AMONG QUALIFYING POPULATIONS, REFERRAL METHODS, AND SUBPOPULATIONS 6.1 Identify the intent to give preference to one or more qualifying populations or a subpopulation within one or more qualifying populations for any eligible activity or project: The Developer is not intending to give preference to one or more qualifying populations or subpopulations and will serve all qualifying populations. 6.2 Referral Methods for Project or Activity: The Developer will work directly with the Single and Family Coordinated Entry Lead Operating Agencies within Maricopa County to place west valley residents into a NCS and rental housing. Internal referral methods may be adapted and are in the initial planning stages and program development. Section 3 Work Statement Page 45 of 55 NAC El Mirage HOME ARP Agreement 6.3 Waitlist Procedures: The Developer will also work with the Single and Family Coordinated Entry Lead Operating Agencies for identification west valley individuals and families experiencing homelessness or at risk of homelessness. Applications will be accepted on a first come first served basis and will be screened for eligibility. The Developer will maintain a point of contact with the west valley cities and towns where referrals can be made, and available units can be shared. 7.0 PERFORMANCE REPORTING GOALS-TIMELINE OF ACTIVITIES: MILESTONES START DATE COMPLETION DATE Contract Executed February 2024 February 2024 Environmental Reviews January 2024 April 2024 Property Acquisition December 2023 May 2024 Civil Permits February 2024 August 2024 Building Permits April 2024 August 2024 Construction 25% Complete August 2024 December 2024 Construction 50% Complete January 2025 April 2025 Construction 75% Complete April 2025 August 2025 Construction 100% Complete September 2025 October 2025 100% Occupancy November 2025 December 2025 HOME-ARP Supportive Services November 2025 December 2026 ARPA funds fully expended May 2024 July 2026 HOME-ARP funds fully expended May 2024 July 2026 Any change to the Timeline will need to be submitted to and approved by Maricopa County. 8.0 ACTIVITY BUDGET SUMMARY: COSTS HOME-ARP FUNDS HOME-ARP ADMIN ARPA Additional Sources* (defined in Table 9) TOTAL COST Property Acquisition $1,950,000 $1,950,000 Environmental Reviews $25,000 $25,000 Pre-development $1,070,042 $1,070,042 Construction $4,924,214 $7,538,083 $973,804 $13,436,101 Supportive Services $1,215,982 $1,250,000 $2,465,982 Reserves $280,086 $280,086 FF&E’s/Appliances $750,000 $750,000 Developer Fees $1,089,836 $1,089,836 TOTAL $4,924,214 $1,215,982 $10,583,125 $4,343,725 $21,067,046 Section 3 Work Statement Page 46 of 55 NAC El Mirage HOME ARP Agreement 9.0 SOURCE AND AMOUNT OF OTHER RESOURCES: FUNDING AGENCY CASH AMOUNT VOLUNTEER/ IN-KIND AMOUNT ADOH – Housing Trust Fund (Development Costs)* $3,093,725 N/A ADOH – Housing Trust Fund (Supportive Services)* $1,250,000 N/A TOTAL $4,343,725 *Application pending with ADOH. If not funded, NAC to utilize Bezos Funds 10.0 MATCH: Matching Contribution Requirements. The requirements of 24 CFR 92.218 through 24 CFR 92.222 and any other requirements for matching contributions in 24 CFR part 92 shall not apply to HOME-ARP funds, as subsection (c)(1) of ARP states that the underlying statutory requirement at section 220 of NAHA (42 U.S.C. 12750) does not apply to HOME- ARP funds. Matching funds shall not apply to ARPA funds. 11.0 HOME MAX SUBSIDY: Per CPD Notice 21-10 the HOME max subsidy limit is waived for HOME-ARP. Max subsidy does not apply to ARPA. 12.0 PROPERTY STANDARDS Housing that is constructed or rehabilitated with HOME funds must meet all applicable federal, state, and local codes, rehabilitation and construction standards, ordinances, and zoning ordinances, including Section 504 of the Rehabilitation Act of 1973 and Fair Housing Act, as amended, at the time of project completion. All work will meet decent, safe, and sanitary housing standards consistent with HOME regulations including HUD Uniform Property Conditions Standards (UPCS) and Maricopa County Housing Rehabilitation Standards. These standards are available on the Maricopa County website under Housing & Community Development or upon request. 13.0 OCCUPANCY REQUIREMENTS The Developer staff will determine and verify income eligibility of tenants for the HOME- ARP and ARPA assisted-units prior to occupancy of a unit. The occupancy of the County HOME assisted units must be by households whose income is at or below 60% AMI or the required qualifying populations throughout the Period of Affordability. The Developer will define “Annual Income” as it is defined at 24 CFR Part 92 and will document sources of income and examine eligibility on an annual basis in order to meet requirements of HOME regulations at 24 CFR Part 92.203. 14.0 AFFORDABLITY PERIOD The Developer will ensure that all housing assisted under this Agreement meets the affordability requirements of 24 CFR § 92.252, as applicable. The period of affordability for the HOME-ARP-Assisted NCS units is 10 years after which the units can transition to HOME-ARP Affordable Housing units per CPD Notice 21-10 for a period of 5 years with an additional extend commitment period of 15 years, totaling 30 years. The Period of Affordability for the ARPA-Assisted Units will be 30 years. Section 3 Work Statement Page 47 of 55 NAC El Mirage HOME ARP Agreement 15.0 METHODS AND INSTRUMENTS USED FOR ENSURING AFFORDABLITY 15.1 Recapture provision. The HOME-ARP and ARPA funds used for development will be secured by a Deed of Trust, Promissory Note, and Declaration of Land Use Restrictions for a term of 30 years. The County utilizes a recapture provision that will require the HOME-ARP funds to be repaid in full by the Developer if the unit is determined to be no longer eligible. Funds to be repaid will be based on the entire amount of HOME-ARP and ARPA subsidy that was originally used to purchase and construct the project. All units are secured by a Deed of Trust and Promissory Note. 15.2 The Developer and County shall assemble a loan package comprised of an agreed upon Deed of Trust, Promissory Note, Declaration of Land Use Restrictions, and any other documents required to secure the obligation required by the County, other Lenders lending to the Project, or Title Agency. 15.3 Prior to any funds being disbursed, Developer shall deliver to the County a fully authorized and executed Declaration of Land Use Restrictions, and a Deed of Trust, which documents shall be recorded in the Maricopa County Recorder’s Office, to attach to the Project. Declaration and Land Use Restrictions shall bind the property of the Project to provide affordable housing to the tenants who are to reside in the Project during the entirety of the Affordability Period and extended commitment period. In no event shall said Declaration be removed of record or modified in any manner without the prior written consent of the County. 16.0 INCOME LIMITS, RENT LIMITS & UTILITY ALLOWANCE 16.1 Income & Rent Limits - HOME-ARP and ARPA-Assisted units Rents will be at or below the Low HOME rent and rents will be at or below 30% of tenant’s gross income. Updated HOME income and rent limits from the Maricopa County Housing & Community Development division are available on an annual basis. These limits are adjusted annually by the U.S. Department of Housing & Urban Development (HUD). The Developer can request the updated limits from the County or by going to https://www.maricopa.gov/3893/Notices-Documents or going to HUD’s website for the updated versions each year. 16.2 Utility Allowance Determination - A utility allowance must be used when determining all eligible unit rents only if, and only for, utilities that are paid directly by the resident. If all utilities are provided by the owner/agent, there is no utility allowance. A copy of the current utility allowance schedule must be submitted to the County each year with the Annual Report. It is noted that utility allowance schedules often remain the same from year to year. If the table has not changed, the owner/agent should include a copy of a letter so stating from the appropriate authority dated in the calendar year covered by the annual report. If a project is receiving both ARPA and LIHTC funding, a County may coordinate with the LIHTC agency to obtain a project-specific agency estimate or may accept a UA approved by the LIHTC agency based on its actual usage methodology. 17.0 ANNUAL INCOME DETERMINATION The HOME regulations at 92.203(a) Require the income eligibility of applicants to be determined by examining source documentation which provides evidence of annual income, such as: wage statements, interest statements, and unemployment compensation statements. Section 3 Work Statement Page 48 of 55 NAC El Mirage HOME ARP Agreement 18.0 AFFIRMATIVE MARKETING Per 92.351 The developer will adopt maintain an Affirmative Marketing Policy and procedures which follow the County’s Affirmative Marketing Policy and procedures. The public, property owners, and potential tenants will be informed about the responsibilities of the Project in complying with Fair Housing Act and Affirmative Marketing, regulations, and the goal of attracting persons from all racial, ethnic, and gender groups in the housing market area to the available housing. This policy applies equally to all recipients of HOME- ARP and ARPA funds. The HOME-ARP and ARPA funds defer to the HOME Regulations regarding Fair Housing and Equal Opportunity (Title VI of the Civil Rights Act of 1964, As Amended, The Fair Housing Act, Equal Opportunity in Housing (Executive Order 11063, As Amended by Executive Order 12259), and the Age Discrimination Act of 1975, As Amended; (https://www.hud.gov/program_offices/fair_housing_equal_opp) and Affirmative Marketing (24 CFR Part 92.253(d); 2 CFR Part 92.351(a); HUD Executive Orders 11625, 12432, 12138). 19.0 MONITORING Not later than July 30 of each year and continuing until the expiration of the Affordability Period or extended commitment period, unless otherwise determined by the Human Services Department but not to exceed a 5-year period per 2 CFR Part 200.330. Developer shall provide to the County: 19.1 A copy of the then current rent rolls. 19.2 Proof that all residents of the Project are qualified by income to reside in the Project. 19.3 A copy of the then current forms of lease required to be executed by residents of the Project. 19.4 Such other information as, in the sole discretion of the County, is necessary to demonstrate to the County that all requirements with respect to affordability are satisfied. 19.5 Schedule with the County an inspection to allow the County to ensure all units are in compliance with Housing Quality Standards (HQS 20.0 PROHIBITED LEASE PROVISIONS The HOME-ARP and ARPA funded units will defer to HOME Regulations regarding prohibited lease terms. Pursuant to 24 CFR 92.253(b), the following terms are prohibited from inclusion in leases of HOME-ARP and ARPA- assisted. units: for the period of affordability and extended commitment period agreed upon herein 20.1 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. 20.2 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. 20.3 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. 20.4 Waiver of Notice. Tenant shall not be required to waive notification of a lawsuit instituted by landlord. 20.5 Waiver of Legal Proceedings. Tenant shall not be required to waive a court proceeding in an eviction process. 20.6 Waiver of Jury Trial. Tenant shall not be required to waive any right to a trial jury. 20.7 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. Section 3 Work Statement Page 49 of 55 NAC El Mirage HOME ARP Agreement 20.8 Tenant's Payment of Legal Fees. Tenant shall not be required to pay any legal costs of landlord associated with a court proceeding. 20.9 Mandatory Supportive Services. Tenant shall not be required to accept supportive services in connection with their occupancy of the assisted unit. Page 50 of 55 NAC El Mirage HOME ARP Agreement SECTION 4 COMPENSATION Section 4 Compensation Page 51 of 55 NAC El Mirage HOME ARP Agreement 1.0 COMPENSATION 1.1 The Developer will only utilize HOME funds to pay for eligible activities and costs of those activities permitted in 24 C.F.R. § 92.300 and not specifically prohibited under 24 C.F.R. § 92.214 (Prohibited Activities and Fees). 1.2 The Developer shall be reimbursed utilizing the Assistance Listing Number (ALN): 14.239, HOME Investment Partnerships Program provided to the County through the U.S. Department of Housing and Urban Development (HUD) and 21.027 American Rescue Plan Act provided to the County through the U.S. Department of Treasury. 1.3 Subject to the availability and authorization of funds for the explicit purposes set forth below, the County will pay the Developer compensation for services rendered as indicated in the following subparagraphs. The County will not be liable for any contracts entered into by Developer in anticipation of receiving payments under the Agreement. 1.4 The Developer shall not retain any funds drawn down in excess of immediate cash needs (to be used within 15 days after draw down) to cover subsequent requests for reimbursement. Any excess funds must be returned to the County within 30 days after receipt. The Developer also must return to the County any interest that is earned on these funds that are drawn down and not expended for eligible costs within 15 days after the funds have been drawn down. 2.0 METHOD OF PAYMENT 2.1 The Developer agrees to submit reimbursement requests utilizing the approved Reimbursement Request Form to the County, along with the Match Log Certification Form. The Developer may request funds only after it has satisfied the funding contingencies and federal Environmental Review conditions and have a written agreement in place for Project activities. 2.2 The Developer may not request disbursement of funds under this Agreement until the funds are needed for payment of eligible costs. The amount of each request must be limited to the amount needed. Program Income funds must be disbursed before the Developer requests funds from the County. 2.3 The County agrees to reimburse the Developer for actual allowable costs incurred, upon certification of HUD Environmental Release of Funds and submittal by the Developer of an itemized statement of actual expenditures incurred, supported by appropriate documentation. 2.4 The Developer shall submit to the County a Request for Reimbursement of all expenditures within the same fiscal year in which the expenditures are incurred. The fiscal year runs July 1st through June 30th, and all Requests for Reimbursement shall be submitted no later than July 15th for the preceding fiscal year 2.5 All requests for reimbursement shall be submitted to:HSDFINANCE@MARICOPA.GOV 2.6 Reimbursement by the County is not to be construed as final in the event that HUD disallows reimbursement for the Program or any portion thereof. 2.7 The County shall reimburse the Developer on a Net zero (0) payment standard. 2.8 The Developer shall comply with all requirements under 2 C.F.R. 200.415, incorporated herein by reference. 3.0 TIMELINESS The Subrecipient will submit Requests for Reimbursements to the County at least quarterly, provided Subrecipient has expended at least $1,000. Section 4 Compensation Page 52 of 55 NAC El Mirage HOME ARP Agreement 4.0 REIMBURSEMENT 4.1 The County shall: 4.1.1 provide financial assistance in an amount not to exceed Sixteen million, seven hundred twenty-three thousand, three hundred twenty-one dollars and zero cents ($16,723,321.00) subject to the terms of this Agreement and availability of funds. 4.1.2 Review the claim for reimbursement to ensure compliance with applicable requirements pursuant to the Agreement. The approval of payment based on a claim for reimbursement is at the County’s discretion. 4.1.3 Notify the Developer of any deficiencies in the claim for reimbursement and itemize what additional information, if any, is needed. 4.1.4 Conduct, if, in the opinion of the County it is necessary, an inspection of the Project. 4.1.5 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. 5.0 FINAL REIMBURSEMENT UPON AGREEMENT TERMINATION 5.1 Upon termination of this Agreement at the date identified on page 1 of this Agreement, or as may be amended, the Developer shall submit the final reimbursement request. 5.1.1 This request shall be submitted no later than 30 calendar days after the termination date except as noted immediately below. 5.1.2 If the termination date is between June 10th and June 30th, then the final reimbursement request shall be submitted by July 10th. 5.1.3 The final progress report, and any other required reports that may be applicable such as the Project proceeds report, shall be submitted with the final reimbursement request. Page 53 of 55 NAC El Mirage HOME ARP Agreement SECTION 5 ATTACHMENTS Section 5 Attachments Page 54 of 55 NAC El Mirage HOME ARP Agreement Attachment 1 Section 5 Attachments Page 55 of 55 NAC El Mirage HOME ARP Agreement Attachment 2