220166-FSL HOLDING PROPERTIES AMENDMENT 2.PDF
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Amendment No. 2
C-73-22-081-X-20
Serial 220166-RFP
AMENDMENT NO. 2
TO
SERIAL 220166-RFP, AFFORDABLE HOUSING DEVELOPMENT OPPORTUNITIES
BETWEEN
FSL HOLDING PROPERTIES, LLC
&
MARICOPA COUNTY
WHEREAS, Maricopa County, Arizona (“County”) and FSL HOLDING PROPERTIES, LLC (“Contractor”) have
entered into a Contract for the purchase of AFFORDABLE HOUSING DEVELOPMENT
OPPORTUNITIES dated May 18, 2022 (“Agreement”) County Contract No: 220166-RFP.
WHEREAS, County and Contractor have agreed to further modify the Agreement by changing certain terms and
conditions in Amendment No. 1 dated May 24, 2023.
WHEREAS, County and FSL Holding Properties, LLC have agreed to further modify the Agreement by changing
certain terms and conditions through this Amendment No. 2.
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, receipt of
which is hereby acknowledged, the parties hereto agree as follows:
1.
The purpose of the Amendment is to amend portions of the Agreement and adjust the structure of
the Agreement accordingly. This Amendment No. 2 is subject to and incorporates the provisions
of A.R.S. § 38-511.
2.
Amend the following sections as indicated:
2.1
Amend Section 1.0 - Contract Term such that the term of the contract is extended from
two years and one month to three years and seven months. The expiration date will be
extended from June 30, 2024, to December 31, 2025.
2.2
Amend Section 2.0 Option to Renew such that the renewal term available will be revised
from “two years and six months” to indicate renewal terms of “up to a maximum-date not
to extend beyond December 31, 2026.”
2.3
Amend Section 7.0 - Terms and Conditions as follows:
2.3.1
Strike sections 7.2.1 through 7.2.9 Contractor’s Provisions, General Commercial
Liability, Errors and Omissions Liability and Builders Risk Insurance
2.3.2
Add Section 7.2.10 - Owners Controlled Insurance Program (“OCIP”)
2.3.3
Renumber Section 7.2.10 Certificates of Insurance as 7.2.11 Certificates of
Insurance
2.3.2.1 Strike the second subsection under Certificates of Insurance
2.3.4
Strike Section 7.2.11 Cancellation and Expiration notice in its entirety.
2.4
Amend section 7.30 Incorporation of Documents to add Exhibit F – Additional Insurance
Provisions, “OCIP” – Owners Controlled Insurance Program.
2.5
Amend 7.31 Notices to change Contractor contact by adding Dan Pierce and add Lotzar
Law Firm as additional contact for Contractor
2.6
Amend to add the following new sections:
2.6.1
Section 7.35 - Provisions Required by Law
2.6.2
Section 7.36- Religious Activities
2.6.3
Section 7.37 - Political Activities Prohibited
2.6.4
Section 7.38 - Equal Employment Opportunity
Amendment No. 2
C-73-22-081-X-20
Serial 220166-RFP
2.6.5
Section 7.39 - Certification Regarding Lobbying
2.6.6
Section 7.40 - Clean Air Act & Clean Water Act
2.6.7
Section 7.41 - Energy Policy and Conservation Act
2.7
Amend Exhibit B - Statement of Work as follows:
2.7.1
Amend Attachment B1: Project Description as follows:
2.7.1.1 The number of affordable single-family detached homes shall change
from 12 to 16 homes.
2.7.1.2 ARPA funding shall increase from $480,000 to a new funding amount
of $833,647.
2.7.1.3 Strike requirements to use $180,000 to assist 12 owners with Down
Payment Assistance.
2.7.1.4 Strike the following language: “In addition to ARPA funds, the
Developer also has Maricopa County HOME funds and Affordable
Housing Program funds from Federal Home Loan Bank. The project
shall serve nine Owner’s whose households earn at or below 80% area
median income (AMI) and three whose household income is at or below
65% AMI”; add the following: “The project shall serve households that
earn at or below 120% of the Area Median Income (AMI).”
2.7.1.5 Strike “The Developer shall market two floor plans with three elevation
options each”; add “The Developer shall market three floor plans.”
2.7.1.6 Floor plan square footage (sq. ft.) range shall change from 1,375 - 1,600
sq. ft. to 1,236 - 1,607 sq. ft.
2.7.1.7 Add sales price requirements such that the sales price of the homes shall
be the lowest of the following: the appraised value, the Maximum
HOME Value Limits, or listed price per sq. ft. of $428,000 for a 1,236
sq. ft. plan, $432,000 for a 1,389 sq. ft. plan and $470,000 for 1,607
sq. ft. plan.
2.7.1.8 Add “as well as down payment assistance” to paragraph referencing
contract with Newtown CDC.
2.7.1.9 Project Eligibility, Occupancy Requirements indicate household
income shall be at or below 120% AMI; strike “at or below 80% AMI.”
2.7.1.10 Deliverables Beneficiaries shall be adjusted such that “Number of
Households (units)” increases from 12 to 16, and “Number of people
(approximate)” increases from 36 to 48 .
2.7.2
Amend Exhibit B-Statement of Work, Attachment - B2: Budget as follows:
2.7.2.1 Increase funding such that ARPA Funds increase from $480,000 to
$833,647 (a total increase of $ 353,647).
2.7.2.2 “Site Development and Hard Construction Costs – Residential” is
increased from $300,000 to $833,647 (an increase of $533,647) as a
result of increases in project construction costs and housing cost
increases.
2.7.2.3 “Down Payment/Closing Cost Assistance” is reduced from $180,000 to
$0.
2.7.3
Amend Exhibit B – Statement of Work, Attachment B3: Proposed Project
Schedule to update completion dates.
2.8
Amend Exhibit C – Special Terms and Conditions as follows:
Amendment No. 2
C-73-22-081-X-20
Serial 220166-RFP
2.8.1
Extend the Funding Completion Date from June 30, 2024, to December 31, 2025.
2.8.2
In Section 8, increase funding from $480,000 to $833,647 (a total increase of
$353,647).
2.9
Amend Exhibit - D Additional Procedures/Forms, Attachment D2: Occupancy
Restrictions and Project Unit Characteristics as follows:
2.9.1
In Section 1. Project Properties:
2.9.1.1 Increase the number of single family affordable residential units from
12 to 16, an addition of 4 units.
2.9.1.2 Remove “and the project shall provide down payment assistance for the
12 Owners to purchase housing at an affordable cost.”
2.9.2
In Section 2. Owner Income Restrictions, increase AMI from 80% to 120%.
2.9.3
In Section 2b) Benefit Type, strike “the Developer is using ARPA funds to
provide down payment assistance to create affordable units.
2.9.4
Strike Section 3. Security Instruments for Affordability, 3b. Down Payment
Assistance.
2.10
Amend to add Exhibit F – ADDITIONAL INSURANCE PROVISIONS, “OCIP” –
Owners Controlled Insurance Program.
Please see revisions following the signature page.
ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED
Amendment No. 2
C-73-22-081-X-20
Serial 220166-RFP
IN WITNESS WHEREOF, the Contract Amendment is executed on the date set forth below and executed by
Maricopa County.
FSL HOLDING PROPERTIES LLC, an Arizona limited liability company
BY: FSL REAL ESTATE SERVICES, an Arizona Nonprofit Corporation
ITS: SOLE MEMBER
BY:_________________________________________________________________
STEPHEN HASTINGS, CHIEF OF REAL ESTATE SERVICES
__________________________________________________________________
ADDRESS
____________________________
DATE
MARICOPA COUNTY
__________________________________________________________________
CHAIRMAN, BOARD OF SUPERVISORS
DATE
ATTESTED:
__________________________________________________________________
CLERK OF THE BOARD
DATE
APPROVED AS TO FORM:
__________________________________________________________________
DEPUTY COUNTY ATTORNEY
DATE
Amendment No. 2
C-73-22-081-X-20
Serial 220166-RFP
Revisions to contract in red.
AFFORDABLE HOUSING DEVELOPMENT OPPORTUNITIES
220166-RFP
This Contract is entered into this 18th day of May 2022 by and between Maricopa County (“County”), a
political subdivision of the State of Arizona, and FSL Holding Properties LLC, an Arizona limited liability
corporation (“Contractor” or “Developer”).
1.0
CONTRACT TERM
This Contract is for a term of two three years and one month seven months, beginning on the 18th
day of May 2022 and ending the 30th 31st day of June December 2025; however, all applicable
terms and conditions of this Contract, and any Exhibits hereto, shall remain valid for the entire
Affordability Period as defined in Exhibit C, Special Terms and Conditions, attached hereto, and
made a part hereof. (“Contractor” will be referred to in Exhibit C – Special Terms and Conditions,
as “Developer”).
2.0
OPTION TO RENEW
The County may, at its option and with the concurrence of the Contractor, renew the term of this
Contract up to a maximum of two years and six months date not to extend beyond December
31, 2026. The Contractor shall be notified in writing by the Office of Procurement Services of the
County’s intention to renew the Contract term at least 60 calendar days prior to the expiration of
the original Contract term.
3.0
SPECIAL TERMS AND CONDITIONS TERM
Special Terms and Conditions (Exhibit C) Developer’s Contract Termination Date: (i) for indirect
benefit, at the time Developer has satisfied the terms of the Developer Deed of Trust and
Promissory Note and the County has provided a full release of the Obligations Secured; or (ii) for
direct benefit, 15 years from the date Developer and Owner execute Deed of Trust.
4.0
CONTRACT COMPLETION
In preparation for Contract completion, the Contractor shall make all reasonable efforts for an
orderly transition of its duties and responsibilities to another provider and/or to the County. This
may include, but is not limited to, preparation of a transition plan and cooperation with the County
or other providers in the transition. The transition includes the transfer of all records and other data
in the possession, custody, or control of the Contractor that are required to be provided to the
County either by the terms of this agreement or as a matter of law. The provisions of this clause
shall survive the expiration or termination of this agreement.
5.0
AVAILABILITY OF FUNDS
Amendment No. 2
C-73-22-081-X-20
Serial 220166-RFP
5.1
The provisions of this Contract relating to payment for services shall become effective
when funds assigned for the purpose of compensating the Contractor as herein provided
are actually available to County for disbursement. The County shall be the sole judge and
authority in determining the availability of funds under this contract. County shall keep the
Contractor fully informed as to the availability of funds.
5.2
If any action is taken by, any State agency, Federal department, or any other agency or
instrumentality to suspend, decrease, or terminate its fiscal obligations under, or in
connection with, this contract, County may amend, suspend, decrease, or terminate its
obligations under, or in connection with, this contract. In the event of termination, County
shall be liable for payment only for services rendered prior to the effective date of the
termination, provided that such services are performed in accordance with the provisions
of this contract. County shall give written notice of the effective date of any suspension,
amendment, or termination under this section, at least 10 days in advance.
6.0
DUTIES
The Contractor shall perform all duties stated in Exhibit B – Statement of Work, or as otherwise
directed in writing by the Human Services Department, and the procurement officer (as applicable).
7.0
TERMS AND CONDITIONS
7.1
INDEMNIFICATION
7.1.1
To the fullest extent permitted by law, and to the extent that claims, damages,
losses, or expenses are not covered and paid by insurance purchased by the
Contractor, the Contractor shall defend, indemnify, and hold harmless the County
(as Owner), its agents, representatives, officers, directors, officials, and employees
from and against all claims, damages, losses, and expenses (including, but not
limited to attorneys' fees, court costs, expert witness fees, and the costs and
attorneys' fees for appellate proceedings) arising out of, or alleged to have resulted
from, the negligent acts, errors, omissions, or mistakes of the Contractor, its
agents, representatives, employees, or subcontractors relating to the performance
of this Contract.
7.1.2
Contractor's duty to defend, indemnify, and hold harmless the County, its agents,
representatives, officers, directors, officials, and employees shall arise in
connection with any claim, damage, loss, or expense that is attributable to bodily
injury, sickness, disease, death, or injury to, impairment of, or destruction of
tangible property, including loss of use resulting therefrom, caused by negligent
acts, errors, omissions, or mistakes in the performance of this contract, but only to
the extent caused by the negligent acts or omissions of the Contractor, a
subcontractor, anyone directly or indirectly employed by them, or anyone for
whose acts they may be liable, regardless of whether or not such claim, damage,
loss, or expense is caused in part by a party indemnified hereunder.
7.1.3
The amount and type of insurance coverage requirements set forth herein will in
no way be construed as limiting the scope of the indemnity in this section.
7.1.4
The scope of this indemnification does not extend to the sole negligence of County.
7.2
INSURANCE
7.2.1
Contractor, at Contractor’s own expense, shall purchase and maintain, at a
minimum, the herein stipulated insurance from a company or companies duly
licensed by the State of Arizona and possessing an AM Best, Inc. category rating
of B++. In lieu of State of Arizona licensing, the stipulated insurance may be
purchased from a company or companies, which are authorized to do business in
Amendment No. 2
C-73-22-081-X-20
Serial 220166-RFP
the State of Arizona, provided that said insurance companies meet the approval of
County. The form of any insurance policies and forms must be acceptable to
County.
7.2.2
All insurance required herein shall be maintained in full force and effect until all
work or service required to be performed under the terms of the Contract is
satisfactorily completed and formally accepted. Failure to do so may, at the sole
discretion of County, constitute a material breach of this contract.
7.2.3
In the event that the insurance required is written on a claims-made basis,
Contractor warrants that any retroactive date under the policy shall precede the
effective date of this Contract and either continuous coverage shall be maintained,
or an extended discovery period shall be exercised for a period of two years
beginning at the time work under this Contract is completed.
7.2.4
Contractor’s insurance shall be primary insurance as respects County, and any
insurance or self-insurance maintained by County shall not contribute to it.
7.2.5
Any failure to comply with the claim reporting provisions of the insurance policies
or any breach of an insurance policy warranty shall not affect the County’s right to
coverage afforded under the insurance policies.
7.2.6
The insurance policies may provide coverage that contains deductibles or self-
insured retentions. Such deductible and/or self-insured retentions shall not be
applicable with respect to the coverage provided to County under such policies.
Contractor shall be solely responsible for the deductible and/or self-insured
retention and County, at its option, may require Contractor to secure payment of
such deductibles or self-insured retentions by a surety bond or an irrevocable and
unconditional letter of credit.
7.2.7
The insurance policies required by this contract, except Workers’ Compensation
and Errors and Omissions, shall name County, its agents, representatives, officers,
directors, officials, and employees as additional insureds.
7.2.8
The policies required hereunder, except Errors and Omissions, shall contain a
waiver of transfer of rights of recovery (subrogation) against County, its agents,
representatives, officers, directors, officials, and employees for any claims arising
out of Contractor’s work or service.
7.2.9
If available, the insurance policies required by this Contract may be combined with
Commercial Umbrella Insurance policies to meet the minimum limit requirements.
If a Commercial Umbrella insurance policy is utilized to meet insurance
requirements, the Certificate of Insurance shall indicate which lines the
Commercial Umbrella Insurance covers.
7.2.9.1
Commercial General Liability
Commercial General Liability (CGL) insurance and, if necessary,
Commercial Umbrella insurance with a limit of not less than $2,000,000
for each occurrence, $4,000,000 Products/Completed Operations
Aggregate, and $4,000,000 General Aggregate Limit. The policy shall
include coverage for premises liability, bodily injury, broad form property
damage, personal injury, products and completed operations and
blanket contractual coverage, and shall not contain any provisions which
would serve to limit third party action over claims. There shall be no
endorsement or modifications of the CGL limiting the scope of coverage
for liability arising from explosion, collapse, or underground property
damage.
Amendment No. 2
C-73-22-081-X-20
Serial 220166-RFP
7.2.9.2
Errors and Omissions/Professional Liability Insurance
Errors and Omissions (Professional Liability) insurance which will insure
and provide coverage for errors or omissions or professional liability of
the Contractor, with limits of no less than $2,000,000 for each claim.
7.2.9.3
Builder’s Risk (Property) Insurance
Contractor shall purchase and maintain, on a replacement cost basis,
Builders’ Risk insurance and, if necessary, Commercial Umbrella
insurance in the amount of the initial Contract amount, as well as
subsequent modifications thereto for the entire work at the site. Such
Builders’ Risk insurance shall be maintained until final payment has
been made or until no person or entity other than County has an
insurable interest in the property required to be covered, whichever is
earlier. This insurance shall include interests of County, Contractor, and
all subcontractors and sub‐subcontractors in the work during the life of
the Contract and course of construction and shall continue until the work
is completed and accepted by County. For new construction projects,
Contractor agrees to assume full responsibility for loss or damage to the
work being performed and to the structures under construction. For
renovation construction projects, Contractor agrees to assume
responsibility for loss or damage to the work being performed at least up
to the full Contract amount, unless otherwise required by the Contract
documents or amendments thereto. Builders’ Risk insurance shall be on
a special form and shall also cover false work and temporary buildings
and shall insure against risk of direct physical loss or damage from
external causes including debris removal, and demolition occasioned by
enforcement of any applicable legal requirements and shall cover
reasonable compensation for architect’s service and expenses required
as a result of such insured loss and other “soft costs” as required by the
contract. Builders’ Risk insurance must provide coverage from the time
any covered property comes under Contractor’s control and/or
responsibility, and continue without interruption during construction,
renovation, or installation, including any time during which the covered
property is being transported to the construction installation site and
while on the construction or installation site awaiting installation. The
policy will provide coverage while the covered premises or any part
thereof are occupied. Builders’ Risk insurance shall be primary, and any
insurance or self‐insurance maintained by the County is not contributory.
If the Contract requires testing of equipment or other similar operations,
at the option of County, Contractor shall be responsible for providing
property insurance for these exposures under a Boiler and Machinery
insurance policy or the Builders’ Risk Insurance policy.
7.2.10 Owner Controlled Insurance Program:
7.2.10.1 Owner shall furnish for the benefit of the Project an Owner-
Controlled Insurance Program (“OCIP”) insurance policy covering
the Owner, the Project general contractor, and all Project
subcontractors.
7.2.10.2 The OCIP policy shall include the following policies/limits to cover
all persons performing Work: Builder’s Risk with coverage for the
total completed value of the project, and General Liability
Insurance (including bodily injury and property damage and
completed operations) of up to $3,000,000.
Amendment No. 2
C-73-22-081-X-20
Serial 220166-RFP
7.2.10.3 Prior to commencement of the Work, Owner, at its sole option and
cost, shall secure and maintain at all times during this Agreement,
the OCIP policy described herein.
7.2.10.4 The Project General Contractor and the Project subcontractors
shall furnish and keep in force all other insurance required of them
as provided for in Exhibit F.
7.2.10.5 All persons covered by the OCIP shall comply with the
administrative and reporting requirements of the Lockton
Companies, Owner’s OCIP insurance provider.
7.2.10.6 The insurance policy described herein shall name County of
Maricopa as an additional insured. The insurance described herein
is subject to such deductibles and exclusions as described in
Exhibit F.
7.2.11 Certificates of Insurance
7.2.11.1 Prior to Contract award, Contractor shall furnish the County with valid
and complete Certificates of Insurance, or formal endorsements as
required by the Contract in the form provided by the County, issued by
Contractor’s insurer(s), as evidence that policies providing the required
coverage, conditions and limits required by this Contract are in full force
and effect. Such certificates shall identify this Contract number and title.
7.2.11.2 In the event any insurance policy(ies) required by this Contract is (are)
written on a claims-made basis, coverage shall extend for two years past
completion and acceptance of Contractor’s work or services and as
evidenced by annual certificates of insurance.
7.2.11.3 If the policy does expire during the life of the Contract, a renewal
certificate must be sent to County 15 calendar days prior to the
expiration date.
7.2.11.4 Certificate holder shall be identified as:
Maricopa County
c/o Risk Management
301 W Jefferson St., Suite 910
Phoenix, AZ 85003
7.2.11. Cancellation and Expiration Notice
Applicable to all insurance policies required within the insurance requirements of
this contract, Contractor’s insurance shall not be permitted to expire, be
suspended, be canceled, or be materially changed for any reason without 30 days
prior written notice to Maricopa County. Contractor must provide to Maricopa
County, within two business days of receipt, if they receive notice of a policy that
has been or will be suspended, canceled, materially changed for any reason, has
expired, or will be expiring. Such notice shall be sent directly to Maricopa County
Office of Procurement Services and shall be mailed, or hand delivered to
160 S. 4th Avenue, Phoenix, AZ 85003, or emailed to the procurement officer noted
in the solicitation.
7.3
TERMINATION FOR CONVENIENCE
Amendment No. 2
C-73-22-081-X-20
Serial 220166-RFP
Maricopa County may terminate the resultant Contract for convenience by providing 60
calendar days advance notice to the Contractor.
7.4
TERMINATION FOR DEFAULT
7.4.1
The County may, by written Notice of Default to the Contractor, terminate this
Contract in whole or in part if the Contractor fails to:
7.4.1.1
perform the services within the time specified in this Contract or any
extension;
7.4.1.2
make progress, so as to endanger performance of this contract; or
7.4.1.3
perform any of the other provisions of this contract.
7.4.2
The County’s right to terminate this Contract under these subparagraphs may be
exercised if the Contractor does not cure such failure after receipt of a Notice to
Cure from the procurement officer specifying the failure and time frame allowed in
which to remedy.
7.5
PERFORMANCE
It shall be the Contractor’s responsibility to meet the proposed performance requirements.
7.6
STATUTORY RIGHT OF CANCELLATION FOR CONFLICT OF INTEREST
Notice is given that, pursuant to A.R.S. § 38-511, the County may cancel any Contract
without penalty or further obligation within three years after execution of the contract, if any
person significantly involved in initiating, negotiating, securing, drafting, or creating the
Contract on behalf of the County is at any time, while the Contract or any extension of the
Contract is in effect, an employee or agent of any other party to the Contract in any capacity
or consultant to any other party of the Contract with respect to the subject matter of the
contract. Additionally, pursuant to A.R.S. § 38-511, the County may recoup any fee or
commission paid or due to any person significantly involved in initiating, negotiating,
securing, drafting, or creating the Contract on behalf of the County from any other party to
the Contract arising as the result of the contract.
7.7
ASSIGNMENT
The Contractor may not assign to another party for performance of the terms and
conditions hereof without the written consent of the County. All correspondence authorizing
assignment must reference the Contract serial number and identify the job or project.
7.8
AMENDMENTS
All amendments to this Contract shall be in writing and approved/signed by both parties.
Maricopa County Board of Supervisors shall be responsible for approving all amendments
for Maricopa County.
7.9
RIGHTS IN DATA
7.9.1
The County shall have the use of data and reports resulting from a Contract without
additional cost or other restriction except as may be established by law or
applicable regulation. Each party shall supply to the other party, upon request, any
available information that is relevant to a Contract and to the performance
thereunder.
Amendment No. 2
C-73-22-081-X-20
Serial 220166-RFP
7.9.2
Data, records, reports, and all other information generated for the County by a third
party as the result of a Contract are the property of the County and shall be
provided in a format designated by the County or shall be and remain accessible
to the County into perpetuity.
7.10
ACCESS TO AND RETENTION OF RECORDS FOR THE PURPOSE OF AUDIT AND/OR
OTHER REVIEW
7.10.1 In accordance with Section MC1-372 of the Maricopa County Procurement Code,
the Contractor agrees to retain (physical or digital copies of) all books, records,
accounts, statements, reports, files, and other records and back-up documentation
relevant to this Contract for six years after final payment or until after the resolution
of any audit questions, which could be more than six years, whichever is longest.
The County, Federal or State auditors and any other persons duly authorized by
the department shall have full access to and the right to examine, copy, and make
use of, any and all said materials.
7.10.2 If the Contractor’s books, records, accounts, statements, reports, files, and other
records and back-up documentation relevant to this Contract are not sufficient to
support and document that requested services were provided, the Contractor shall
reimburse Maricopa County for the services not so adequately supported and
documented.
7.11
AUDIT DISALLOWANCES
If at any time it is determined by the County that a cost for which payment has been made
is a disallowed cost, the County shall notify the Contractor in writing of the disallowance.
The course of action to address the disallowance shall be at sole discretion of the County,
and may include either an adjustment to future invoices, request for credit, request for a
check, or a deduction from current invoices submitted by the Contractor equal to the
amount of the disallowance, or to require reimbursement forthwith of the disallowed amount
by the Contractor by issuing a check payable to Maricopa County.
7.12
STRICT COMPLIANCE
Acceptance by County of a performance that is not in strict compliance with the terms of
the Contract shall not be deemed to be a waiver of strict compliance with respect to all
other terms of the contract.
7.13
VALIDITY
The invalidity, in whole or in part, of any provision of this Contract shall not void or affect
the validity of any other provision of the contract.
7.14
SEVERABILITY
The removal, in whole or in part, of any provision of this Contract shall not void or affect
the validity of any other provision of this contract.
7.15
NON-DISCRIMINATION
Contractor agrees to comply with all provisions and requirements of Arizona Executive
Order 2009-09, including flow down of all provisions and requirements to any
subcontractors. Executive Order 2009-09 supersedes Executive Order 99-4 and amends
Executive Order 75-5 and is hereby incorporated into this Contract as set forth in full herein.
During the performance of this contract, Contractor shall not discriminate against any
employee, client, or any other individual in any way because of that person’s age, race,
creed, color, religion, sex, disability, or national origin. (Arizona Executive Order 2009-09
Amendment No. 2
C-73-22-081-X-20
Serial 220166-RFP
can
be
downloaded
from
the
Arizona
Memory
Project
at
http://azmemory.azlibrary.gov/cdm/singleitem/collection/execorders/id/680/rec/1.)
7.16
WRITTEN CERTIFICATION PURSUANT to A.R.S. § 35-393.01
If Contractor or any subcontractor employed for the work engages in for-profit activity and
has 10 or more employees, Contractor certifies it is not currently engaged in, and agrees
for the duration of this agreement to not engage in, a boycott of goods or services from
Israel. This certification does not apply to a boycott prohibited by 50 U.S.C. § 4842 or a
regulation issued pursuant to 50 U.S.C. § 4842.
7.17
UNIQUE ENTITY IDENTIFIER AND SYSTEM FOR AWARD MANAGEMENT
REGISTRATION
Funding for activities under this Contract are provided through under the American Rescue
Plan Act – Coronavirus State and Local Fiscal Recovery Funds Assistance Listing Number
(ALN) 21.027. All Contractors that receive Federal funding must obtain a Unique Entity
Identifier (UEI) through www.sam.gov . Contractor must also and remain current with the
System for Award Management (SAM) at www.sam.gov, a database of basic business
information for Contractors that receive federal funds.
7.18
CERTIFICATION REGARDING DEBARMENT AND SUSPENSION
7.18.1 The undersigned (authorized official signing on behalf of the Contractor) certifies
to the best of his or her knowledge and belief that the Contractor, its current
officers, and directors:
7.18.1.1 are not presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded from being awarded any
Contract or grant by any United States department or agency or any
state, or local jurisdiction;
7.18.1.2 have not within a three-year period preceding this contract:
7.18.1.2.1 been convicted of fraud or any criminal offense in
connection with obtaining, attempting to obtain, or as the
result of performing a government entity (Federal, State or
local) transaction or contract; or
7.18.1.2.2 been convicted of violation of any Federal or State antitrust
statutes or conviction for embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false
statements, or receiving stolen property regarding a
government entity transaction or contract;
7.18.1.2.3 are not presently indicted or criminally charged by a
government entity (Federal, State or local) with commission
of any criminal offenses in connection with obtaining,
attempting to obtain, or as the result of performing a
government entity public (Federal, State or local)
transaction or contract;
7.18.1.3 are not presently facing any civil charges from any governmental entity
regarding obtaining, attempting to obtain, or from performing any
governmental entity Contract or other transaction; and
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7.18.1.4 have not within a three-year period preceding this Contract had any
public transaction (Federal, State or local) terminated for cause or
default.
7.18.2 If any of the above circumstances described in the paragraph are applicable to the
entity submitting a bid for this requirement, include with your bid an explanation of
the matter including any final resolution.
7.18.3 The Contractor shall include, without modification, this clause in all lower tier
covered transactions (i.e., transactions with subcontractors or sub-subcontractors)
and in all solicitations for lower tier covered transactions related to this contract. If
this clause is applicable to a subcontractor or sub-subcontractor, the Contractor
shall include the information required by this clause with their bid.
7.19
VERIFICATION REGARDING COMPLIANCE WITH A.R.S. § 41-4401 AND FEDERAL
IMMIGRATION LAWS AND REGULATIONS
7.19.1 By entering into the contract, the Contractor warrants compliance with the
Immigration and Nationality Act (INA using E-Verify) and all other Federal
immigration laws and regulations related to the immigration status of its employees
and A.R.S. § 23-214(A). The Contractor shall obtain statements from its
subcontractors certifying compliance and shall furnish the statements to the
procurement officer upon request. These warranties shall remain in effect through
the term of the contract. The Contractor and its subcontractors shall also maintain
Employment Eligibility Verification forms (I-9) as required by the Immigration
Reform and Control Act of 1986, as amended from time to time, for all employees
performing work under the Contract and verify employee compliance using the E-
Verify system and shall keep a record of the verification for the duration of the
employee’s employment or at least three years, whichever is longer. I-9 forms are
available for download at www.uscis.gov.
7.19.2 The County retains the legal right to inspect documents of Contractor and
subcontractor employees performing work under this Contract to verify compliance
with paragraph 7.19.1 of this section. Contractor and subcontractor shall be given
reasonable notice of the County’s intent to inspect and shall make the documents
available at the time and date specified. Should the County suspect or find that the
Contractor or any of its subcontractors are not in compliance, the County will
consider this a material breach of the Contract and may pursue any and all
remedies allowed by law, including, but not limited to, suspension of work,
termination of the Contract for default, and suspension and/or debarment of the
Contractor. All costs necessary to verify compliance are the responsibility of the
Contractor.
7.20
CONTRACTOR EMPLOYEE WHISTLEBLOWER RIGHTS AND REQUIREMENT TO
INFORM EMPLOYEES OF WHISTLEBLOWER RIGHTS
7.20.1 The parties agree that this Contract and employees working on this Contract will
be subject to the Contractor employee whistleblower protections established by
Title 41 U.S.C. § 4712 and Section 3.908 of the Federal Acquisition Regulation.
7.20.2 Contractor shall inform its employees in writing, in the predominant language of
the workforce, of employee whistleblower rights and protections under 41 U.S.C.
§ 4712, as described in Section 3.908 of the Federal Acquisition Regulation.
Documentation of such employee notification must be kept on file by Contractor
and copies provided to County upon request.
Amendment No. 2
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7.20.3 Contractor shall insert the substance of this clause, including this paragraph, in all
subcontracts over the simplified acquisition threshold ($250,000 as of fiscal year
2018).
7.21
CONTRACTOR LICENSE REQUIREMENT
The Contractor shall procure all permits, insurance, and licenses, and pay the charges and
fees necessary and incidental to the lawful conduct of his/her business, and as necessary
complete any requirements, by any and all governmental or non-governmental entities as
mandated to maintain compliance with and remain in good standing. The Contractor shall
keep fully informed of existing and future trade or industry requirements, and Federal,
State, and local laws, ordinances, and regulations which in any manner affect the fulfillment
of a Contract and shall comply with the same. Contractor shall immediately notify both
Office of Procurement Services and the department of any and all changes concerning
permits, insurance, or licenses.
7.22
INFLUENCE
7.22.1 As prescribed in MC1-1203 of the Maricopa County Procurement Code, any effort
to influence an employee or agent to breach the Maricopa County Ethical Code of
Conduct or any ethical conduct, may be grounds for disbarment or suspension
under MC1-902.
7.22.2 An attempt to influence includes, but is not limited to:
7.22.2.1 A person offering or providing a gratuity, gift, tip, present, donation,
money, entertainment or educational passes or tickets, or any type of
valuable contribution or subsidy that is offered or given with the intent to
influence a decision, obtain a contract, garner favorable treatment, or
gain favorable consideration of any kind.
7.22.3 If a person attempts to influence any employee or agent of Maricopa County, the
chief procurement officer, or his designee, reserves the right to seek any remedy
provided by the Maricopa County Procurement Code, any remedy in equity or in
the law, or any remedy provided by this contract.
7.23
CONFIDENTIAL INFORMATION
7.23.1 Any information obtained in the course of performing this Contract may include
information that is proprietary or confidential to the County. This provision
establishes the Contractor’s obligation regarding such information.
7.23.2 The Contractor shall establish and maintain procedures and controls that are
adequate to assure that no information contained in its records and/or obtained
from the County or from others in carrying out its functions (services) under the
Contract shall be used by or disclosed by it, its agents, officers, or employees,
except as required to efficiently perform duties under the contract. The Contractor’s
procedures and controls, at a minimum, must be the same procedures and controls
it uses to protect its own proprietary or confidential information. If, at any time
during the duration of the contract, the County determines that the procedures and
controls in place are not adequate, the Contractor shall institute any new and/or
additional measures requested by the County within 15 business days of the
written request to do so.
7.23.3 Any requests to the Contractor for County proprietary or confidential information
shall be referred to the County for review and approval, prior to any dissemination.
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7.24
PUBLIC RECORDS
Under Arizona law, all offers submitted and opened are public records and must be
retained by the County at the Maricopa County Office of Procurement Services. Offers shall
be open to public inspection and copying after Contract award and execution, except for
such offers or sections thereof determined to contain proprietary or confidential information
by the Office of Procurement Services. If an offeror believes that information in its offer or
any resulting Contract should not be released in response to a public record request, under
Arizona law, the offeror shall indicate the specific information deemed confidential or
proprietary and submit a statement with its offer detailing the reasons that the information
should not be disclosed. Such reasons shall include the specific harm or prejudice which
may arise from disclosure. The records manager of the Office of Procurement Services
shall determine whether the identified information is confidential pursuant to the Maricopa
County Procurement Code.
7.25
INTEGRATION
This Contract represents the entire and integrated agreement between the parties and
supersedes
all
prior
negotiations,
proposals,
communications,
understandings,
representations, or agreements, whether oral or written, expressed, or implied.
7.26
UNIFORM ADMINISTRATIVE REQUIREMENTS
By entering into this contract, the Contractor agrees to comply with all applicable provisions
of
Title
2,
Subtitle
A,
Chapter
II,
Part
200—UNIFORM
ADMINISTRATIVE
REQUIREMENTS, COST PRINCIPLES, AND AUDIT REQUIREMENTS FOR FEDERAL
AWARDS contained in Title 2 C.F.R. § 200 et seq.
7.27
GOVERNING LAW
This Contract shall be governed by the laws of the State of Arizona. Venue for any actions
or lawsuits involving this Contract will be in Maricopa County Superior Court, Phoenix,
Arizona.
7.28
SPECIAL TERMS AND CONDITIONS AGREEMENT
Special terms and conditions can be found in Exhibit C – SPECIAL TERMS AND
CONDITIONS which are incorporated herein and made a part hereof.
7.29
ORDER OF PRECEDENCE
If there is any conflict between the terms of this Contract and any exhibit to this Contract,
unless otherwise specified, the terms of this Contract shall prevail.
7.30
INCORPORATION OF DOCUMENTS
7.30.1 The following are to be attached to and made part of this Contract:
7.30.1.1 EXHIBIT A – CONTRACTOR INFORMATION
7.30.1.2 EXHIBIT B – STATEMENT OF WORK
7.30.1.2.1 Attachment B1: Project Description
7.30.1.2.2 Attachment B2: Budget
7.30.1.2.3 Attachment B3: Proposed Project Schedule
7.30.1.2.4 Attachment B4: Budget Amendment Request Form
7.30.1.2.5 Attachment B5: HOME Income Limits
7.30.1.3 EXHIBIT C – SPECIAL TERMS AND CONDITIONS
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7.30.1.4 EXHIBIT D – ADDITIONAL PROCEDURES/FORMS
7.30.1.4.1 Attachment D1: Affirmative Marketing and Fair Housing
Policies and Procedures
7.30.1.4.2 Attachment D2: Occupancy Restrictions and Project Unit
Characteristics
7.30.1.4.3 Attachment D3: Request for Reimbursement Procedures
7.30.1.4.4 Attachment D4: Sample Request for Reimbursement Cover
Letter
7.30.1.4.5 Attachment D5: Request for Reimbursement Form
7.30.1.4.6 Attachment D6: ARPA Progress Report
7.30.1.5 EXHIBIT E – SECURITY INSTRUMENTS
7.30.1.5.1 Attachment E1: Developer Deed of Trust; Promissory Note
7.30.1.6 EXHIBIT F – ADDITIONAL INSURANCE PROVISIONS, “OCIP” –
Owners Controlled Insurance Program
7.31
NOTICES
All notices given pursuant to the terms of this Contract shall be addressed to:
For County:
Maricopa County Human Services Department
Housing and Community Development
234 N. Central Ave., Third Floor,
Phoenix, AZ 85004
Attention: Housing and Community Development Manager
Phone Number: 602-506-5813
AND
Maricopa County
Office of Procurement Services
160 S. 4th Avenue
Phoenix, Arizona 85003-1647
For Contractor:
FSL Holding Properties, LLC
c/o FSL Real Estate Services
1201 E. Thomas Rd
Phoenix, AZ 85014
Attention: Krista Schwartz Dan Pierce
Phone: 602-285-0505 x 121 141
Email: kschwartz@fsl.org dpierce@fsl.org
AND
Lotzar Law Firm, PC
8687 E. Via de Ventura, Suite 115
Scottsdale, AZ 85258
Attn: Mary Sue Lotzar
Phone: 480-905-0300 (101)
Email: msl@lotzar.com
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7.32
INQUIRIES
7.32.1 Administrative telephone/email inquiries shall be addressed to:
ELIZABETH KUTTNER, PROCUREMENT OFFICER
TELEPHONE: (602) 506-0099
elizabeth.kuttner@maricopa.gov
7.32.2 Inquiries may be submitted by telephone but must be followed up in writing. No
oral communication is binding on Maricopa County.
7.33
ADMINISTRATIVE CHANGE ORDERS
The Chairman of the Board of Supervisors is authorized upon the recommendation of the
Human Services Department Director and the County Attorney to make changes within the
general scope of the contract on behalf of the County through Administrative Change
Orders. Administrative Change shall be approved and fully executed by the Chairman of
the Board of Supervisors and the Contractor. Administrative Change Orders may address
any of the following areas:
7.33.1 Modifications to the project timeline if the last day of the project timeline is within
the Agreement term;
7.33.2 Modifications to Budget line items if the Agreement Amount remains
unchanged;
7.33.3 Modifications required by federal, state, or County regulations, ordinances, or
policies; and
7.33.4 Modifications to Administrative requirements such as changes in reporting
periods, frequency of reports, or report formats required by local regulations,
policies or requirements.
7.34
FORCED LABOR
7.34.1 By submitting a bid for this solicitation and/or entering into a contract as a
result of this solicitation, contractor agrees to comply with all applicable
portions of Arizona Revised Statutes Section 35-394. Contracting;
procurement; prohibition; written certification; remedy; termination;
exception; definitions.
7.34.2 Contractor certifies that it does not currently, and agrees for the duration of
the contract, that it will not use:
7.34.2.1 The forced labor of ethnic Uyghurs in the People’s Republic of
China.
7.34.2.2 Any goods or services produced by the forced labor of ethnic
Uyghurs in the People’s Republic of China.
7.34.2.3 Any contractors, subcontractors or suppliers that use the forced
labor or any good or services produced by the forced labor of
ethnic Uyghurs in the People’s Republic of China.
7.34.3 If contractor becomes aware during the term of the agreement that contractor
is not in compliance with this paragraph, the contractor shall notify the County
within five business days after becoming aware of the noncompliance. If the
contractor fails to provide a written certification to the County that the
contractor has remedied the noncompliance within 180 days after notifying
the County of its noncompliance, then the agreement terminates, except that
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if the agreement termination date occurs before the end the 180 day period,
the agreement terminates on the agreement termination date.
7.35
PROVISIONS REQUIRED BY LAW
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.
7.36
RELIGIOUS ACTIVITIES
The contractor agrees that costs, planned or claimed, including costs incurred, shall
not include any expense for any religious activity.
7.37
POLITICAL ACTIVITY PROHIBITED
None of the funds, materials, property, or services contributed by the County or the
contractor under the agreement shall be used in the performance of this agreement
for any partisan political activity, or to further the election or defeat of any candidate
for public office.
7.38
EQUAL EMPLOYMENT OPPORTUNITY
7.38.1 The contractor shall not discriminate against any employee or applicant for
employment because of race, age, disability, color, religion, sex, or national
origin. The contractor shall take affirmative action to ensure applicants are
employed and that employees are treated during employment without regard
to their race, age, 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.
7.38.2 Contractor shall comply with the following provisions:
7.38.2.1 Title VI and VII of the Civil Rights Act of 1964, as amended (42
U.S.C. §§ 2000a, et seq.);
7.38.2.2 The Rehabilitation Act of 1973, as amended (29 U.S.C. §§ 701, et
seq.);
7.38.2.3 The Age Discrimination in Employment Act of 1967, as amended
(29U.S.C. §§ 621, et seq.);
7.38.2.4 The Americans With Disabilities Act of 1990 (42 U.S.C. §§ 12101, et
seq.); and Arizona Executive Order 2009-09, as amended, et seq.
which mandates that all persons shall have equal access to
employment opportunities.
7.38.2.5 Contractor understands that the United States has the right to seek
judicial enforcement of this assurance.
7.39
CERTIFICATION REGARDING LOBBYING
7.39.1 Contractor certifies, to the best of their knowledge and belief, that:
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7.39.1.2 No federal appropriated funds have been paid or will be paid, by or
on behalf of the contractor, to any person for influencing or
attempting to influence an officer or employee of any agency. This
applies to a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress in connection
with the awarding of any federal contract, the making of any federal
grant. Including the making of any federal, loan the entering into of
any cooperative agreement, and the extension, continuation,
renewal, amendment, or modification of any federal contract, grant,
loan, or cooperative agreement.
7.39.2 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, member of Congress, an officer or employee of
Congress, or an employee of a member of Congress in connection with this
federal contract, grant, loan, or cooperative agreement, the undersigned
shall complete and submit Standard Form-LLL, “Disclosure Form to Report
Lobbying,” in accordance with its instructions.
7.39.3 Contractor shall include Lobbying Certification language in the award
documents for all subcontractors (including sub-grants, and contract under
grants, loans, and cooperative agreements) and that all sub-recipients shall
certify and disclose accordingly.
7.39.3.1 The Lobbying Certification is a material representation of fact upon
which reliance was placed when this transaction is made or
entered into. Submission of this certification is prerequisite for
making or entering into this transaction imposed by section 1352,
Title 31, U.S. Code. Any successful proposer(s) who fail to file the
required certification shall be subject to a civil penalty of not less
than $10,000.00 and not more than $100,000.00 for each such
failure.
7.40
CLEAN AIR ACT & CLEAN WATER ACT
Contractor must comply with all applicable standards, orders, or requirements
issued under section 306 of the Clean Air Act (42 U.S.C. 1857(h), section 508 of the
Clean Water Act (33 U.S.C. 1368) Executive Order 11738, and Environmental
Protection Agency regulations (40 CFR part 15).
7.41
ENERGY POLICY AND CONSERVATION ACT
Contractor must adhere to the standards and policies relating to energy efficiency,
which are contained in the State energy conservation plan issued in compliance with
the Energy Policy and Conservation Act (Pub. L. 94-163, 89 Stat.871).
[signature page follows]
Amendment No. 2
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Amendment No. 2
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Serial 220166-RFP
EXHIBIT A - CONTRACTOR (DEVELOPER) INFORMATION
SAM.GOV UNIQUE ENTITY ID
R6MVWQNDW1C6
FEDERAL TAX ID
02-0605634
FEDERAL TAX ID
02-0605634
COMPANY NAME:
FSL HOLDING PROPERTIES LLC
DOING BUSINESS AS (dba):
MAILING ADDRESS:
1201 E. Thomas Rd., Phoenix, AZ 85014
REMIT TO ADDRESS:
1201 E. Thomas Rd., Phoenix, AZ 85014
TELEPHONE NUMBER:
(602) 285-1800
FAX NUMBER:
(602) 285-0225
WWW ADDRESS:
www.FSL.org
REPRESENTATIVE NAME:
Krista Schwartz
REPRESENTATIVE TELEPHONE NUMBER:
(602) 285-0505 ext. 121
REPRESENTATIVE EMAIL:
kschwartz@fsl.org
YES
NO
REBATE
WILL ALLOW OTHER GOVERNMENTAL ENTITIES TO PURCHASE
FROM THIS CONTRACT:
WILL ACCEPT PROCUREMENT CARD FOR PAYMENT:
NET 0 DAYS
Amendment No. 2
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EXHIBIT B – STATEMENT OF WORK
Attachment B1: Project Description
Project Description:
The Project, described herein as Casa Del Sol, shall utilize ARPA funds to develop 12 16 affordable single-
family detached homes in a 16-lot subdivision. The Project is located at approximately 439 W Palm Drive,
Wickenburg, Arizona on a 2.9-acre site.
The ARPA funds in the amount of $480,000 will be for this project$833,647 will be used for an indirect
benefit of infrastructure and construction costs and $180,000 shall be used as a direct benefit providing 12
owners with $15,000 of down payment assistance. In addition to ARPA funds, the Developer also has
Maricopa County HOME funds and Affordable Housing Program funds from Federal Home Loan Bank. The
project shall serve nine Owner’s whose households earn at or below 80% area median income (AMI) and
three whose household income is at or below 65% AMI. The project shall serve households that earn
at or below 120% of the Area Median Income (AMI).
The Developer shall market two three floor plans with three elevation options each. The largest plan is
1,600 1,607 sq. ft. and features five bedrooms, two baths, and a two-car garage. The smallest plan is 1,389
sq. ft. plan and includes three bedrooms plus a small flex space, two full bathrooms, and a one-car garage.
Acknowledging the work-from-home trend, the flex space is smaller than a traditional bedroom, but large
enough to accommodate most home office needs. Centrally located within the home, it is also an ideal
space for a variety of functions which may change over time depending upon the household’s needs.
Possible uses include a nursery, a playroom, a media room, a small guest suite with space for a twin-sized
day bed, or a craft room. The smallest home is 1236 sq. ft. and includes 3 bedrooms, 2 bathrooms,
and a 1-car garage.
The sales price of the homes shall be the lowest of the following: appraised value, the Maximum
HOME Value Limits, or the following:
1236 sf Plan - $428,000
1389 sf Plan - $432,000
1607 sf Plan - $470,000
All plans shall incorporate a number of Universal Design features, such as zero-step entries, 36” wide
interior doors, and lever-style door hardware and plumbing fixtures.
The Developer shall contract with Newtown CDC, a HUD-approved housing counseling agency, who shall
provide one-on-one housing counseling and an online homebuyer education class, as well as down
payment assistance. Newtown shall also collect income documentation from potential buyers and verify
that the households meet all program criteria before issuing an eligibility letter. Developer shall only execute
purchase contracts with households who have been issued an eligibility letter by Newtown CDC.
Project Eligibility:
Property Standards - Housing that is constructed or rehabilitated with ARPA funds must meet all applicable
local codes, rehabilitation, and construction standards, ordinances, and zoning ordinances, including
Section 504 of the Rehabilitation Act of 1973 and Fair Housing Act, as amended, at the time of project
completion. All work shall meet decent, safe, and sanitary housing standards consistent with HOME
regulations including HUD Housing Quality Standards and Maricopa County Housing Rehabilitation
Standards. These standards are available on the Maricopa County website under Housing & Community
Development or upon request.
Occupancy Requirements – The Project staff shall determine and verify income eligibility of Owners for the
ARPA assisted-units prior to occupancy of a unit. The occupancy of the ARPA-assisted units must be by
households whose income is initially at or below 80% 120% AMI (low to moderate income); see Exhibit B,
Attachment B5: HOME Income Limits. The Project shall define “Annual Income” as it is defined at 24 C.F.R.
Part 92 Additional guidance and resources are outlined in Exhibit D, Attachment D2: Occupancy
Restrictions and Project Unit Characteristics.
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Deliverables
Beneficiaries
Number of households (units)
1216
Number of people (approximate)
3648
Use of ARPA Funds - The ARPA funds provided under this Agreement shall be used for the cost detailed
in the budget found in Attachment B2.
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EXHIBIT B – STATEMENT OF WORK
Attachment B2: Budget
FUND SOURCES
Sources
Total
MCHSD ARPA Funds
Grant/soft loan
$480, 000 $833,647
Total
$480,000 $833,647
BUDGET SUMMARY
Name of Activity: Casa del Sol
ARPA Funds
Site Development and Hard Construction
Costs- Residential
$300,000 $833,647
Down Payment / Closing Cost Assistance
$180,000
TOTALS
$480,000 $833,647
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EXHIBIT B – STATEMENT OF WORK
Attachment B3: Proposed Project Schedule
Project Milestones
Estimated
Completion Date
Comments
Construction Documents (standard plans)
6/15/22
Complete
Town approval of Construction Documents
7/15/22
Complete
Public Bid Phase
8/15/22 2/15/2023
Complete
Select General Contractor
8/31/22 7/27/2023
Complete
Begin Construction
9/15/22 3/15/2024
Form HOA
9/30/22 2/28/2024
Public Report (AZ Dept. of Real Estate)
10/14/22 5/14/2024
Begin Accepting Sales Contracts
10/29/22 8/15/2024
Finish Construction of Last Home
12/30/23 3/15/2025
Last Home Sale
2/28/24 8/30/2025
Project Close Out
3/30/24 12/30/2025
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EXHIBIT C – SPECIAL TERMS AND CONDITIONS
Funding Completion Date: June 30, 2024 December 31, 2025
Developer: FSL Holding Properties, LLC
ALN Number: ALN 21.027 American Rescue Plan Act Coronavirus State and Local Fiscal Recovery Funds
UEI Number: R6MVWQNDW1C6
These Special Terms and Conditions are attached to and made part of the Contract - AFFORDABLE
HOUSING DEVELOPMENT OPPORTUNITIES 220166-RFP.
1.
The County is the recipient of funds from the United States of America pursuant to the
American Rescue Plan Act of 2021 (ARPA).
2.
On December 9, 2021, County did solicit proposals from developers seeking to obtain
ARPA funds for projects that are to include affordable housing within the County.
3.
Developer, in response to said solicitation, did submit a proposal for a project known as
Casa Del Sol.
4.
County has reviewed Developer’s proposal and has determined that said proposal is
eligible for funding pursuant to the criteria established by the County.
5.
The purpose of these Special Terms and Conditions is to set forth the basis pursuant to
which the County will provide to Developer money from the allocation of ARPA funds made available to
HSD, and to establish that the failure of Developer to abide by or perform any of these term or condition
shall result in the breach of the Contract.
6.
The following words and phrases shall have the definitions set forth when used in this
Agreement:
a. “Claim for reimbursement” means the process and procedures the Developer must use to
obtain the disbursal of the funds being provided pursuant to the Contract.
b. “Declaration” means a document executed by Developer and recorded in the office of the
Maricopa County recorder against the Project Property restricting units, or some of them,
in the Project as available only to residents who income qualify for a period that is not
shorter than thirty (30) years.
c. Deed of Trust” means (i) when an indirect benefit is provided, a security instrument naming
Maricopa County the Beneficiary 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; or (ii) when a direct benefit
is provided, a security instrument naming the Developer as the Beneficiary executed by
the Owner and recorded in the office of the Maricopa County Recorder that secures the
repayment of funds advanced to the beneficiary under certain conditions.
d. “Direct Benefit” means funding provided to the Owner to assist in making the property
affordable or when the Developer reduces the sale price of the property based on the
funding provided for construction or infrastructure.
e. “Indirect Benefit” means funding provided for construction or infrastructure which benefits
the Developer enabling them to create the affordable housing.
f.
“Obligations Secured” means the Promissory Note, the Contract and the Deed of Trust to
be executed and, as appropriate, recorded in connection with securing the repayment of
the funds to Developer under certain conditions set forth in those documents.
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g. “Owner” means the purchaser from the Developer of a property within the project subject
to a Period of Affordability.
h. “Period of Affordability” means (i) when a direct benefit is provided, a term of fifteen (15)
years, commencing on the date the individual property in the project is sold to Owner; or
(ii) when an indirect benefit is provided, the term defined in the Promissory Note and Deed
of Trust.
i.
“Project” means Casa Del Sol, as submitted to the County by Developer in response to the
solicitation by the County on January 11, 2022.
j.
“Promissory Note” means (i) when an indirect benefit is provided, a document evidencing
Developer’s promise to repay to Maricopa County the funds advanced under certain
conditions set forth in the document; or (ii) when a direct benefit is provided, a document
evidencing the Owner’s promise to repay to the Developer the funds advanced under
certain conditions set forth in the document.
k. “Work” shall mean the acquisition of the property, the designing of the Project, the obtaining
of all necessary permits, approvals and land rights for the Project, the overseeing of
management of the Project, and the completion of Project’s individual properties to be sold
to Owner who shall reside in the Project.
7.
Developer shall complete all Work as described on Exhibit B to the Contract.
8.
County will provide funding to Developer, subject to the availability of funds, and all terms
and conditions of the Obligations Secured, in the amount of $480,000 $833,647, which funding shall be
used exclusively for Work. In no event will any funding be provided as reimbursement for monies paid for
Work performed prior to the effective date of the Contract. Failure to meet the obligations of the Contract
may result in a demand for repayment of the funds.
9.
Funding is contingent upon all housing in the Project complying with the affordability
requirements, that are further described on Exhibit D to the Contract. Failure to comply with the affordability
requirements is a material breach of the Contract and these Special Terms and Conditions, and Developer
shall repay the County any and all funds disbursed for any purpose other than funding compliant housing
unit(s).
10.
Prior to any funds being disbursed, Developer shall deliver to the County a copy of all
proposed forms of security instruments that will be required to be executed by prospective Owner of the
property within the Project. No funds will be disbursed unless and until the County approves all proposed
forms of security instruments.
11.
Prior to any funds being disbursed when an indirect benefit is provided, Developer shall
deliver to the County a fully authorized and executed Deed of Trust, which documents shall be recorded in
the Maricopa County Recorder’s Office, to attach to the Project. The forms for such documents are attached
to the Contract as Exhibit E, attachment E1. In no event shall said Deed of Trust be removed of record or
modified in any manner without the prior written consent of the County.
12.
Funds will be disbursed as repayment of costs for Work performed on or after the effective
date of the Contract. At the discretion of the Maricopa County Board of Supervisors, this date may be
extended, but in no event will this date be extended beyond December 31, 2026, or such other date as may
be established by the United States Government. To obtain such repayment costs, Developer shall:
a. Submit a claim for reimbursement to hsdfinance@maricopa.gov and hcd@maricopa.gov.
The payment procedures and sample forms for a properly executed claim are shown on
Exhibit D, attachments D3-D5 of the Contract.
b. Submit a request for inspection of the Work performed.
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c. Not submit a claim for reimbursement until the funds are needed for payment related to
Work.
d. Submit its initial claim for reimbursement not later than 180 days from the effective date of
the Contract.
e. Not submit more than one claim for reimbursement in the same calendar month.
13.
Upon receipt of a claim for reimbursement from the Developer, the County will:
a. Review the claim for reimbursement to ensure compliance with applicable requirements
pursuant to the Contract. The approval of payment based on a claim for reimbursement is
at the County’s discretion.
b. Notify the Developer of any deficiencies in the claim for reimbursement and itemize what
additional information, if any, is need.
c. Conduct, if, in the opinion of the County it is necessary, an inspection of the Project.
d. Disburse all funds for which and to the extent of approval of the submitted claim for
reimbursement in the manner, amount, increment, and timeframe determined at County’s
discretion.
14.
Funding is contingent upon the availability of funds. If any action is taken by any State
agency, federal department or any other agency or instrumentality to suspend, decrease or terminate its
fiscal obligation under, or in connection with the Contract, the County may amend, suspend, decrease or
terminate its obligations under or in connection with the Contract. In the event of termination, the County
will, subject to the provisions of paragraphs 9, 10, 11, 12, 13 and 15 hereof, disburse funds for Work
performed prior to the effective date of the termination. The County will give written notice of the effective
date of any suspension, amendment, or termination under this Section at least 10 calendar days in advance.
15.
Prior to completion of the Project the total sum of all claims for reimbursement shall not
exceed ninety-five percent (95%) of total funding to Developer by the County pursuant to the Contract.
Developer shall not submit the final claim for reimbursement unless and until the Project has received the
final certificate of occupancy or title transfer to an Owner or other proof of completion satisfactory to
Maricopa County, Developer shall submit all claims for reimbursement not later than June 30, 2024, unless
extended pursuant to paragraph 14 hereof.
16.
The County will not be liable for any contracts entered into by Developer in anticipation of
receiving payments under the Contract.
17.
Not later than July 30 of each year and continuing until the expiration of the Affordability
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:
a. Record of any ARPA funds recaptured or proceeds and the projects the funds were applied
to.
b. Proof recaptured or proceed ARPA funds were used on projects benefiting an income
qualified Owner.
c. 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.
18.
Notwithstanding any reporting obligations set forth herein, Developer shall provide any and
all progress reports attached to ARPA funding by the federal government, the State of Arizona and/or the
County. Furthermore, until sale or transfer of all of the Project’s properties to qualified Beneficiaries, the
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Developer shall provide County with progress reports not less frequently than 15 days after the end of each
calendar quarter, providing the information required by and on the form attached hereto as Exhibit D,
attachment D7. In addition to the obligations set forth herein, Developer shall, simultaneously with the
reporting obligation of the receiving entity, provide County with a copy of all reports and filings made with
the federal government and/or the State of Arizona and/or any municipality, with respect to the Project.
19.
Developer shall comply with any and all federal, state and local statutes, ordinances,
resolution, regulations and rules, and any violation of any such law shall be deemed to be a material breach
of the Contract. Specifically, Developer shall comply with all applicable provisions of American Rescue Plan
Act 2021 and the Coronavirus State and Local Fiscal Recovery Funds.
20.
Developer must receive prior written approval from the County for all Project amendments
involving changes in the scope of the work, completion dates of project phases, location of approved
activities, or budget.
21.
The parties shall execute and deliver all such documents and perform all such acts as
reasonably may be requested by the other party in order to conduct the activities described herein and to
enforce the applicable affordability requirements.
22.
Developer shall acknowledge the contribution of the County in all related publications
during the Term of the Contract. Developer shall not use the name of Maricopa County in any other manner
without prior written consent. Developer shall not use the County of Maricopa logo in any publications,
marketing, or any other type of media without prior written authorization.
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EXHIBIT D- ADDITIONAL PROCEDURES/FORMS
Attachment D2: Occupancy Restrictions and Project Unit Characteristics
This Attachment describes the specific affordability requirements and occupancy restrictions for the Project required by the
applicable program regulations and the project characteristics as described and represented to the County. The Project
shall be operated and maintained according to the unit mix and with the amenities described herein.
1. Project Properties: The Developer acknowledges that the Project shall contain 12 16 single family affordable residential
units ranging from 3 to 5 bedrooms. and the project shall provide down payment assistance for the 12 Owners to purchase
housing at an affordable cost
2. Owner Income Restrictions: The ARPA-Assisted Units shall be transferred or sold to income qualified Owners earning
at or below 80 120 percent of the area median income adjusted by household size.
a) Source Documentation – The ARPA fund will defer to The HOME regulations in 24 C.F.R. 92.203 for the income
eligibility of applicants to be determined by examining source documentation which provides evidence of annual income.
Verification of household income must be verified by the developer in accordance with 24 CFR 92.203. The project shall
obtain and keep as part of its records the required documentation from the applicant for all ARPA-assisted units on an
annual basis.
b) Benefit Type: The County considers the infrastructure and construction to be an in-direct benefit to the Owners and the
down payment assistance to be a direct benefit to the Owner. The Developer is using ARPA funds to provide down
payment assistance to create affordable units.
3. Security Instruments for Affordability:
a) For Construction Cost: The Developer and County will execute a Developer Deed of Trust including all of the properties
within the project. The County will provide a Partial Deed Release to the Developer when a property within the project
is complete, Owner has been qualified and the loan has been underwritten and is ready to close escrow. The Developer
and Owner will execute security instruments naming the Developer as the Beneficiary at the time of sale. The indirect
benefit is not subject to a period of affordability, recapture provisions or tracking of proceeds.
b) For Down Payment assistance: The Developer shall execute a Deed of Trust and Promissory Note with the Owner
naming the Developer the beneficiary for the direct benefit amount of down payment assistance for a minimum Period
of Affordability for 15 years. The Developer shall operate this project as a revolving fund, tracking recaptured funds and
ensuring funds are revolved into additional down payment assistance for affordable housing. At a minimum the
Developer shall provide annual reporting for the project to the County demonstrating the long-term benefits of the
revolving fund.
4. Sale Price: The Developer shall not sell a property included in the Project for more than the appraised value.
5. Recaptured Funds: Any direct benefit funds recaptured by the Developer due to the sale or transfer of the property by
the Owner shall be used directly for affordable housing.
6. Proceeds: Any proceeds the Developer received from the project shall be tracked and used directly for affordable
housing.
7. Supportive Services: The Developer shall provide Housing Counseling Courses to all Owners prior to the sale of the
property.
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EXHIBIT F- ADDITIONAL INSURANCE PROVISIONS
“OCIP” – Owners Controlled Insurance Program
EXHIBIT F
to Standard Form of Agreement between Owner and Contractor
INSURANCE REQUIREMENTS
General Conditions of the Contract for Construction shall be governed by this Exhibit and the
insurance provided herein. To the extent that there is conflict between these documents the stricter
of the two documents will apply.
INTRODUCTIONS / DEFINITIONS
Capitalized terms not otherwise defined in this Exhibit shall have the meanings assigned to them in
the Agreement.
Contract: means (i) a written agreement between Owner and Contractor for performing Work on the
Project, and/or (ii) with respect to any Subcontractor, any written agreement between a Contractor
and such Subcontractor for performing Work on the Project.
Contractor: means the person or entity awarded the Contract to provide construction services for the
Project, including General Contractor and Subcontractors of every tier.
General Contractor: means Magnolia Design Build LLC
Insurance Representative and Project OCIP Administrator: means the entity or individual designated
by Owner to represent its interest in the OCIP through the coordination of enrollment, claims and
other OCIP activities, as well as monitoring for compliance to OCIP policies, procedures, and
guidelines.
Owner: means FSL Holding Properties LLC, and the "Casa Del Sol Community Association", an
Arizona nonprofit corporation, its successors and assigns, their agents, employees, representatives,
officers, directors, principals, members, managers, shareholders, joint ventures, partnerships and/or
related or affiliated persons and entities of every tier, successors and assigns. Owner further means
the Owner of the property regardless of the entity name as set forth in the Contract.
Owner-Controlled Insurance Program (OCIP): means an insurance delivery method that assures
Contractors on the Project are insured for commercial general liability and such other coverage as the
Owner may in writing specifically add or delete for the Project.
Project: means the construction of the Casa del Sol and adjacent areas where incidental Work is being
performed, excluding permanent locations of the Insured other than the Owner(s), and/or as
otherwise provided in the contract.
Project Site: means the physical location of Work to be performed on the Project as described in the
Contract.
Subcontractor: means an eligible individual or entity having a direct contract with General
Contractor or with any other Subcontractor for performing any part of the Work at the Site.
Work: means all activities required to be conducted by Contractor to fulfill its obligations under the
Contract.
This Exhibit outlines the Insurance applicable for:
1
Owner Controlled Insurance Program (OCIP)
2
Contractor Obligations - OCIP
3
Contractor Provided Insurance – Required
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4
Contractor Obligations
5
Insurance Requirement for Other Work Related Parties
6
Alternate Insurance
7
Subrogation and Waivers
8
Evidence of Insurance
9
Miscellaneous
§ 1 OWNER CONTROLLED INSURANCE PROGRAM (OCIP)
The Project shall be subject to an Owner Controlled Insurance Program (“OCIP”). Owner,
acting directly or through its authorized designee shall administer the OCIP.
Prior to commencement of the Work, Owner, at its sole option and cost, shall secure and
thereafter, except as otherwise provided herein, maintain at all times during the performance
of this Contract, the insurance specified herein, with Owner, General Contractor,
Subcontractors, and such other persons or interests as Owner may designate as eligible
insured parties with limits not less than those specified below for each coverage.
Owner provided insurance to the Contractor shall apply only to Contractors who are eligible
and have completed the enrollment process, complied with the insurance requirements
herein, and received notification of enrollment from the Project OCIP Administrator. Owner
reserves the right to exclude any Subcontractor from the OCIP.
Except as specifically provided herein, Contractor shall be responsible for ensuring
compliance with all OCIP requirements described herein for Contractor and its
Subcontractors at any tier. Contractor shall provide its eligible Subcontractors with all
documentation related to the OCIP.
Contractor will receive a project insurance manual as a part of this Exhibit as developed and
published by Owner’s Insurance Representative, which will include a summary of the
insurance coverage and the programs loss control, administrative and claim procedures and
requirements. The project insurance manual will also include enrollment forms and
reporting requirements for the OCIP. Contractor shall use and comply with the program
insurance manual which shall be incorporated by attachment to this Contract, and as may be
amended.
Owner provided insurance shall not apply to vendors, suppliers, material dealers, haulers
and/or independent haulers, and others who merely transport, pick up, deliver or carry
materials, personnel, parts or equipment, or any other items or persons to or from the Project
Site. Subcontractors providing on site hauling services with dedicated payroll will be
considered eligible for enrollment at Owner’s discretion.
The Project Site will include adjacent areas or nearby described tracts of land where
incidental operations, related to the Work, are performed, excluding permanent locations of
any insured party other than Owner. The OCIP shall not apply to the operations of
Contractor or any Subcontractor at their offices, factories or warehouses.
The cost of the OCIP Insurance specified above to be obtained by Owner will be paid for by
Owner, and Owner shall receive and pay, as the case may be, all adjustments in such costs,
whether by way of dividends or otherwise. Owner shall execute such instruments of
assignment as may be necessary to permit Owner to receiver such adjustments and shall
cause Contractor and all Subcontractors covered by such insurance to do the same.
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The furnishing of insurance by Owner shall in no way relieve, limit, or be construed to
relieve Contractor of any responsibility or obligation whatsoever otherwise imposed by the
Contract.
Owner assumes no obligation to provide insurance other than that specified herein.
However, Owner reserves the right to furnish additional insurance coverage of various types
and limits.
1.1 Commercial General Liability (ISG)
$3,000,000 Bodily Injury and Property Damage – Combined Single Limit Per
Occurrence
$3,000,000 General Aggregate (Annual/Project)
$3,000,000 Completed Operations Aggregate
$100,000
Fire Legal Liability
$5,000
Medical Expense
The policy limits are shared by all Contractors / Subcontractors enrolled in the OCIP and
are exclusive to this Project.
Policy Exclusions – Policy Forms – CG 0001 (04-13) – policy provided upon written request)
COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
COVERAGE B PERSONAL AND ADVERTISING INJURY LIABILITY
COVERAGE C MEDICAL PAYMENTS
Additional Policy Endorsements
Endorsements:
Limits of Insurance
Limitation of Coverage to Designated Project
Service of Suit
Signature Endorsement
Minimum Premium Endorsement - 100%
Additional Insured – Managers or Lessors of Premises - Blanket
Additional Insured – State or Political Subdivision Permits - Blanket
Additional Insured – Mortgagee, Assignee, or Receiver - Blanket
Additional Insured – Lessor of Leased Equipment
Claims Directory – Duties in Event of an Occurrence, Offense, Claim
or Suit
Addition of Named Insureds
Wrap-Up Contractors Conditional Endorsement
Limits Eroded by Expense Endorsement
Extended Products-Completed Operations Hazard - Applicable Law
Endorsement
Punitive Damages Limitation Endorsement
Extension of Coverage for Warranty Work Endorsement
Self-Insured Retention Endorsement
Single Limit Endorsement For Multi-Year Policy Term
Amendment - Property Damage
Quality Assurance Peer Review Increase in Self-Insured Retention
Additional Policy Exclusions
Exclusions:
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Exclusion - Access or Disclosure of Confidential or Personal
Information
Communicable Disease Exclusion
Limitation of Coverage to Designated Premises or Project
Employment-Related Practices Exclusion
Total Pollution Exclusion with a Building Heating, Cooling and
Dehumidifying
Equipment Exception and a Hostile Fire Exception
Fungi or Bacteria Exclusion
Exclusion of Certified Acts of Terrorism
Exclusion - Exterior Insulation and Finish System
Silica or Silica-Related Dust Exclusion
Exclusion - Contractors - Professional Liability
Exclusion - Real Estate Agents or Brokers Errors and Omissions
Asbestos Exclusion
Rental Exclusion - Excludes OLT exposure once units are rented or
leased
Amendment of Copyright, Patent, Trademark or Trade Secret Exclusion
Exclusion - Conversion and Trespass
Prior Completed Operations Exclusion
Property Damage to Project Exclusion
Exclusion - Designated Work Condo, Structure Size and Demolition
Limited Wrap-Up Cross Suits Exclusion
The commercial general liability policy shall be part of the OCIP, and shall include, but shall
not be limited to a standard commercial general liability insurance policy or equivalent,
including bodily injury, property damage, personal injury and completed operations covering
operations at the Project Site for Contractor and enrolled Subcontractors shall be provided.
A nine (9) year extension (the earlier of 9 years or the statute of repose and limitations) of the
completed operations liability coverage will begin upon the earlier of expiration of the
commercial general liability policy or substantial completion.
This insurance will not extend products liability coverage for any product manufactured
away from the Project Site. These coverages will not apply to losses resulting from ownership
of machinery and/or equipment such as improper maintenance, manufacturing, or resulting
defects related to ownership responsibilities. Refer to Section 3 for other contractor provided
insurance requirements.
General Contractor will be responsible for repayment of any deductible for bodily injury or
property damage up to $25,000 per occurrence (the Policy deductible amount) to the extent
loss costs (including allocated loss adjustment expense) payable are attributable to its acts or
the acts of its Subcontractors, or any other entity or person for whom it may be responsible.
To the extent losses covered and payable under the OCIP arise out of, or are the
responsibility of the General Contractor's Subcontractor(s) of any tier, General Contractor
may seek contribution from those Subcontractor(s) in an amount equal to the self-insured
retention or deductible amount under the Subcontractor's own conventional general liability
insurance policy in effect at the time of enrollment into the OCIP, but in no case may the
General Contractor collectively collect more than the per occurrence deductible of $25,000 for
the occurrence which is the contractual responsibility of the General Contractor.
1.2 Builder's Risk/Property Coverage*
*During the course of construction
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A completed value special perils policy form shall be provided on behalf of the Owner and
the Contractor(s). Such policy shall include sublimits for transit and off-site storage to
protect the interests of the Owner, General Contractor and Subcontractors, against the risk of
loss or damage to the Work during construction at the Project Site. Such policy will include
a waiver of subrogation in favor of Owner, General Contractor and Subcontractors.
Coverage will include all materials, supplies, and equipment that are intended for specific
installation in the Project while such materials, supplies, and equipment are located at the
Project Site, in transit, or while temporarily located away from the Project Site for the
purpose of repair, adjustment, or storage at the risk of one of the insured parties, however
the Subcontractor shall be responsible to carry adequate insurance for materials stored at
their owned premises and non-project dedicated locations.
This insurance will not include any other personal property, tools or clothing of workers or
any tools, equipment, protective fencing, scaffolding, and equipment owned, rented, or used
by Subcontractor and used in the performance of the Work. Subcontractor waives any rights
of recovery from Owner, Contractor, and/or the OCIP policies insurers. This exclusion shall
not apply to formwork, shoring, false work, and temporary buildings, as long as the same are
not owned and insured outside the OCIP by the Subcontractor or are damaged due to a
covered peril.
POLICY COVERAGE FORMS AND EXCLUSIONS:
Commercial Inland Marine – Completed Value Builders Risk Coverage Form
Endorsements:
Builders Risk Coverage Form with coverage extensions
Exclusions:
Government Action
Nuclear Hazard
War and Military Action
Earth Movement
Flood and Related Water
Mold
Ordinance or Law
Consequential loss
Faulty work
Wear and tear
Disappearance
Dishonesty
Normal subsidence
Policy Coverage Extensions (sublimits may apply):
Fire Department Service Charges
Valuable Papers and Records
Sewer and Drain Back Up
Reward Payment
Business Personal Property
Scaffolding and Construction Forms (if values declared)
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Debris Removal
Pollutant Clean Up and Removal
Contract Penalty
Transit
Offsite Storage
Expediting & Extra Expense
Claims Preparation Costs
Ordinance or Law
Deductibles:
All Other Peril (AOP) except
$25,000
Water Intrusion / Water Damage
$25,000
Flood
$50,000
General Contractor will be responsible for repayment of any deductible up to $25,000 per
occurrence for loss or damage incurred to the Work provided the loss or damage is covered
by this insurance to the extent the loss or damage is caused by the Work. To the extent
losses covered and payable under the builders risk arise out of, or are the responsibility of the
General Contractor's Subcontractor(s) of any tier, General Contractor may seek contribution
from those Subcontractor(s).
NOTE: The builders risk policy terms vary from policy to policy, and such insurance
provided by Owner will be subject to such limits of liability, exclusions and deductibles as
Owner may negotiate in its discretion. Contractor is advised to consult the terms of the
policy to ascertain its terms.
1.3 Coverage
Unless herein otherwise specifically indicated, the policies set forth in Sections 1.1 through
1.2 above will cover, only at the Project Site, those operations or employees of the insured
parties performed in connection with the Work.
The coverage referred to in Sections 1.1 through 1.2 will be set forth in full in the respective
policy forms. The foregoing descriptions of such policies are not intended to be complete,
or to alter or amend any provision of the actual policies. In matters, if any, in which the said
description may conflict with the Policy, and to the extent there are conflicts or
inconsistencies, the provisions of the insurance Policy shall govern.
Except for completed operations coverage, the OCIP insurance shall discontinue upon the
final date a Contractor is on the Project.
Coverage may also be discontinued if the Project is substantially delayed for an extended
period of time, or if the Project, or the OCIP is permanently terminated.
1.4 Excluded Property
Contractor, and its Subcontractors at any tier, shall retain the risk of loss for any damage
whatsoever to their equipment, stationary or mobile, tools, supplies, materials, automobiles
and vehicles, highway or otherwise, cranes and hoists, scaffolding or any other property
owned or leased which will not be incorporated into the physical construction.
If separate insurance is maintained for any property described in Section 1.4 and 1.3, it shall
contain a waiver of subrogation on the part of the insurance company in favor of Owner and
all other Contractors, and Subcontractors at any tier, with respect to on Site activities. If
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Contractor of any tier chooses to self-insure any of the property described in Section 1.4 and
1.6 it is agreed that Owner and all other suppliers and subcontractors of any tier shall be held
harmless for any loss or damage to the property while on Project Site.
§ 2 CONTRACTOR OBLIGATIONS - OCIP
Contractor shall furnish each Subcontractor a copy of this Exhibit, and shall make the same
requirement of all Subcontractors with respect to their subcontract or procurement procedures.
The duties, obligations, and requirements of these insurance provisions shall apply to all
Subcontractors with whom Contractor may contract.
2.1 Contractor Bid Deductions- not used.
2.2 Contractor Enrollment
Prior to commencement of operations at the Project Site, eligible Contractor(s) shall
complete a Contractor / Subcontractor Application for enrollment into the OCIP and shall
furnish and cause each Subcontractor to furnish to Owner or its Insurance Representative
estimates of total construction values in connection with the Work. Information may include
copies of rate pages from General Liability policies and other insurance related information
deemed necessary to effect and maintain coverage, and to assure that Owner has received an
appropriate reduction of the total insurance cost excluded from their Contract, including any
markup thereon.
For insurance purposes, each Contractor agrees that both it and its Subcontractors shall keep
and maintain current, accurate and complete records of their work and shall furnish same to
Owner, in accordance with the requirements of the insurance company or companies, permit
inspection of its relevant books and records periodically by the insurance company, or
Owner and their Insurance Representatives for the limited purpose of determining the value
of their construction work on the Project.
Contractor shall not violate or knowingly permit to be violated any condition of the policies
of insurance provided by Owner under the terms of this Contract and shall at all times satisfy
the requirements of the insurance companies issuing them.
2.3 Duties and Obligations of Contractor
Duties and obligations of Contractor associated with its participation in the OCIP as related
to the OCIP administration and claim handling are set forth below:
1.
Accept the insurance described above and promptly furnish any information required
by Owner and its Insurance Representative for enrollment.
2.
Comply with the OCIP requirements which are set forth in the Project Insurance
Manual.
3.
Immediately report and assist in the investigation of any accident or occurrence
involving injury to any person or loss or damage to property, and cooperate with the
companies involved in adjusting any claim by securing and giving evidence, and
obtaining the participation and attendance of witnesses required for the investigation
or defense of any claim or lawsuit. Failure to comply will result in Contractor being
responsible for payment of any medical or indemnity benefits, or claim costs accrued
as a result late reporting, or failure to report the claim.
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Failure to comply with any of the above items will be considered noncompliance with the
Contract and may result in remedial action, including withholding of payment, and/or
removal of Contractor and/or Subcontractor from the Project Site.
§ 3 CONTRACTOR PROVIDED INSURANCE - REQUIRED
Contractor shall at all times during the period in which this Contract is in force and effect, or
for a period of time as specified in the below coverages, provide and maintain insurance and
shall require all its Subcontractors to provide and maintain insurance of the type and in
limits as set forth below. Such insurance shall be in a form and from issuing companies
acceptable to Owner. The issuing companies must have an A.M. Best’s rating of [A-, VIII]
or better. The insurance may be provided in a policy or policies, primary and excess,
including the so-called umbrella or excess form. The limits of liability shall be as stated
below, unless, prior to commencement of any Work, written approval is granted by Owner
for variance from those limits.
3.1 Automobile Liability
Insurance covering “any auto” or all owned, non-owned, and hired automobiles. Such
insurance shall provide coverage not less than that of a standard Insurance Services Office
(ISO) business auto coverage policy with limits not less than listed below. Contractual
liability, if not provided in the policy form, is to be provided by endorsement.
General Contractor and Subcontractors limit
$ 1,000,000 Combined Single Limit each occurrence for bodily injury and property
damage
3.2 Workers' Compensation
For all operations Contractor shall carry workers compensation insurance in compliance
with statutory limits for the workers' compensation laws of the State of Arizona and
employer's liability limits of not less than:
$ 1,000,000 – Each Accident for Bodily Injury
$ 1,000,000 – Policy limit for Bodily Injury by disease
$ 1,000,000 – Each Employee for Bodily Injury by disease.
3.3 Commercial General Liability
Evidence of liability insurance for premises and operations exposures of Contractor away
from the Project Site (off-site) shall be provided by Contractor. Coverage to be provided and
maintained for the applicable statute or repose in a form equivalent to the Standard
Insurance Service Office Commercial General Liability Insurance policy (occurrence form)
including products liability for any product manufactured away from the Project Site.
General Contractor and Subcontractors limit
$ 1,000,000 Each Occurrence
$ 2,000,000 General Aggregate
$ 2,000,000 Products and Completed Operations Aggregate
3.4 Excess Liability
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General Contractor limit
$ 5,000,000 Each Occurrence
$ 5,000,000 General Aggregate
$ 5,000,000 Products and Completed Operations Aggregate
High Hazard Subcontractors limit
(Defined as Excavation, Shoring, Demolition, Crane related work, Exterior Skin, Steel
Erection, Roofing, Waterproofing, Fire Protection, Mechanical and Electrical, Metal Decking
over three (3) stories.)
$ 5,000,000 Each Occurrence
$ 5,000,000 General Aggregate
$ 5,000,000 Products and Completed Operations Aggregate
All Other Trade Subcontractors limit
$ 2,000,000 Each Occurrence
$ 2,000,000 General Aggregate
$ 2,000,000 Products and Completed Operations Aggregate
Evidence of excess liability insurance excess of the primary commercial general liability,
employer’s liability, and auto liability exposures of General Contractor away from the Project
Site (off-site) shall be provided and maintained for the applicable statue of repose. Such
liability coverage shall be primary and non-contributory to any other excess insurance the
parties hereto may have in force.
Limits outlined above may be satisfied in various combinations of Primary General Liability
and Umbrella/Excess policies.
3.5 Environmental and Asbestos Abatement Coverage
Should the Contractor’s work involve remediation, removal of asbestos, the
removal/replacement of underground tanks or the removal of toxic chemicals and
substance, transporting or disposing of hazardous materials shall carry pollution liability
insurance with limits of not less than $1,000,000 aggregate for bodily injury, personal injury,
and property damage, including the Contractor, the Owner and all others required by
contract as additional insureds. If such subcontractors haul hazardous waste, they must
carry Automobile Liability insurance which includes the MCS 90 endorsement.
3.6 Contractor's Pollution Liability – (General Contractor required should Owner not purchase)
$ 1,000,000
Per Claim / Per Project
Claims Expenses (including Defense Costs) within limits.
Coverage will include bodily injury or property damage from a pollution event as defined
within the policy form resulting from covered operations during the course of construction
and completed operations of the covered operations.
General Contractor will be responsible for payment of any premium associated with this
coverage as well as any deductible, and assumes responsibility for any loss associated with
the activities of any Contractor performing Work at the Project. This coverage requirement
does not limit the responsibility of the Contractor or limit the liability associated with a claim
as a result of the activities of the Contractor.
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3.7 Professional Liability (Errors & Omissions where required)
Should the Contractor’s work involve any professional service they shall carry professional
liability insurance coverage in an amount not less than $1,000,000 per claim. If such
insurance is written on a claims-made basis, these Subcontractors shall maintain the
insurance for the minimum period of the state’s statute of repose after substantial
completion of the entire Work and have a retroactive date prior to the effective date of the
subcontract. Any lower tier subcontractors performing similar work and/or having design
responsibility must be required to comply with these same insurance requirements. There
should be no exclusion on the policy for the type or scope of work associated with the
project. Such insurance shall be approved by the Owner and/or the General Contractor.
$1,000,000 Each Occurrence
$1,000,000 General Aggregate
3.8 Cranes (Tower Crane, Mobile Crane, Hoist, etc.)
Should cranes be used at the Project Site by Contractor or by any person on its behalf, the
Contractor shall ensure that the crane owner maintains their own liability policy including
bodily injury and property damage, as respects to crane ownership risks (examples: crane
defects, improper crane maintenance, manufacturing defects, etc.) with minimum combined
single limits of any one occurrence of $5,000,000.
When the crane owner is also providing the crane operator and if the crane owner policy
includes a Wrap Up Exclusion, the policy must allow for crane owner coverages during
enrollment under the OCIP and provide Additional Insured (refer to Section 4.1).
3.9 Watercraft, Aviation and/or Drones (UAVs)
Should watercraft or aircraft of any kind be used by Contractor or by any person on its behalf,
Contractor or such other party will maintain or cause the operator of the watercraft or aircraft
to maintain watercraft or aircraft liability insurance, including bodily injury, property damage
and passenger liability, as respects any watercraft or aircraft owned, used, operated or hired in
connection with the Work by Contractor or anyone else with limits of $10,000,000 combined
single limit for bodily injury and property damage any one occurrence, each watercraft or
aircraft.
Should aerial drones of any kind be used by Contractor or by any person on its behalf,
Contractor or such other party will maintain or cause the operator of the drone to maintain
drone liability insurance, including bodily injury and property damage, as respects to any
drone owned, used, operated or hired in connection with the Work by Contractor or anyone
else with limits of $1,000,000 combined single limit for bodily injury and property damage any
one occurrence.
§ 4 CONTRACTOR OBLIGATIONS
All requirements imposed in Section 3, with the exception of any allowable differences in
policy limits, and required of General Contractor, shall likewise be imposed upon, assumed
and performed by each Subcontractor.
Each party shall hereto, and shall require each underwriter that all policies of insurance, with
the exception of professional liability, as allowed by statute, that are in any way related to the
Work, including those that are secured and maintained by Subcontractors and consultants,
include clauses providing that each underwriter shall waive all of its rights of recovery under
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subrogation or otherwise, against Owner, its officials, directors, officers, and employees and
all other interests as may be reasonable required by Owner.
Each insurance policy required of Contractor in Sections 3.1 through 3.9 shall be endorsed:
4.1 With respect to all liability policies required (with the exception of the professional liability
and employers liability), Owner(s), their respective officials, officers, directors, shareholders,
employees, members, managers, agents, representatives, the Contract and all other interests
as may be reasonably required by Owner for the Project shall be named as additional
insured. The coverage afforded by the additional insured under these policies shall be
primary insurance to the extent the claim arises, in whole or in part, from the negligence of
General Contractor or its Subcontractors.
The Additional Insured Endorsement on the commercial general liability policy, shall be
equivalent to ISO form CG2010 (07/04) and ISO form CG2037 (07/04) for completed
operations editions. It shall state that the coverage provided to the additional insured is
primary and non-contributory with respect to any other insurance available to the additional
insured.
4.2 In the event of any claims being made by reasons of bodily injury, personal injury, or
property damage sustained by agent, servant or employee of one insured for which another
insured is or may be liable, the policy shall cover such insured against whom a claim is made
in the same manner as if a separate policy had been issued to each insured (severability of
interest).
Contractor shall furnish each of its Subcontractors a copy of this Exhibit. Contractor shall
ensure that the duties, obligations, and requirements of these insurance provisions shall
apply to all Subcontractors with whom Contractor may contract.
§ 5 INSURANCE REQUIREMENTS FOR OTHER WORK RELATED PARTIES
5.1 Vendors, suppliers, material men, owner/operator truckers, firms whose sole function is to
transport materials, supplies, tools, equipment, parts or items to or from the project site and
contractors who do not perform construction services directly for the completion of the
project shall not be covered by insurance purchased by Owner through the OCIP. However,
these excluded parties shall obtain and maintain until all of their obligations have been
discharged, including any warranty periods under this contract are satisfied, the insurance
coverage specified in subsections listed below.
Such insurance shall be in a form and from issuing companies acceptable to Owner. The
issuing companies must have an A.M. Best’s rating of [A-, VIII] or better.
Automobile Liability:
$ 1,000,000 Combine single Limit Each Occurrence for Bodily Injury and Property
Damage.
Workers’ Compensation:
Statutory WC limit applicable to State of Arizona
Employers Liability – limits not less than:
$ 1,000,000 Each Accident for Bodily Injury
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$ 1,000,000 Policy limit for Bodily Injury by disease
$ 1,000,000 Each Employee for Bodily Injury by disease
Commercial General Liability (CGL):
$ 1,000,000 Per Occurrence
$ 2,000,000 General Aggregate
$ 2,000,000 Products and Completed Operations Aggregate
Such insurance shall be primary and non-contributing with any other insurance and be
in a form and from insurance companies reasonable acceptable to Owner.
5.2 Contractor is responsible to ensure to the best of its’ ability that those entering the Project
Site location have evidence of or hold the appropriate insurance or that those visitor are
escorted while at the Project. Exceptions may be granted where mutually agreed to in
advance between the Owner and the Contractor.
5.3 The required insurance limits may be provided through a combination of primary and excess
policies, including the umbrella form of policy.
5.4 Liability policies required under Section 5.1 shall, with the exception of employers liability,
where prudently feasible, name Owner(s), their respective officials, officers, directors,
shareholders, members, managers, employees, agents, representatives, the Contract, and any
additional entities as Owner may request, as additional insured. The additional insured
endorsement on the commercial general liability shall be equivalent to ISO form CG2010
(07/04) and ISO form CG2037 (07/04) for completed operations editions, shall state that the
coverage provided to the additional insured is primary and non-contributory with respect to
any other insurance available to the additional insured. Contractor is responsible to ensure to
the best of its’ ability that those entering the Project Site location have evidence of or hold
the appropriate insurance or that those visitor are escorted while at the Project. Exceptions
may be granted where mutually agreed to in advance between the Owner and the Contractor.
5.5 All policies of insurance required in this Section 5 shall be endorsed to provide written notice
to Owner at least 30 days prior to the effective date of any cancellation of such policies,
except for non-payment. Where the policy is not endorsed, Subcontractor shall be
responsible for such notification.
5.6 All policies of insurance, as allowed by statute, that are in any way related to the Work,
including those that are secured and maintained by consultants and subcontractors, include
clauses providing that each underwriter shall waive all its rights of recovery under
subrogation or otherwise, against Owner, Owner’s authorized representative(s), Project
Manager, Contractor and its Subcontractors.
5.7 Parties covered in this Section 5 shall cause to be furnished to Owner, or its Insurance
Representative certificates of insurance evidencing all insurance as required by this
Contract. As and when Owner may direct, copies of the actual insurance policies or
renewals or replacements thereof shall be submitted to Owner. All copies of policies, if any,
and certificates of insurance submitted to Owner shall be in form and content acceptable to
Owner.
§ 6 ALTERNATE INSURANCE
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If Owner, due to cancellation by the carrier or for any other reason, is unable to furnish, or to
continue to furnish the insurance as specified in Section 1.1 through 1.3 and upon 30 days'
written notice from the Owner the following shall be required:
Contractor shall obtain replacement insurance with the minimum coverage and limits set
forth in Section 1 above, or as otherwise reasonably required by Owner, with insurers
acceptable to Owner. Such insurance shall be obtained before those coverages terminate
and Contractor shall provide Owner with certificates of insurance or, at Owner’s option,
certified copies of policies prior to that date. Contractor shall require its Subcontractors to
obtain such replacement insurance.
Owner shall issue an appropriate change order to Contractor to reimburse the actual cost of
the additional premiums and its Subcontractors for such replacement insurance.
Owner makes no guarantees or warranties, and disclaim any responsibility whatsoever, that
the OCIP policies will remain in effect and in no way assume responsibility for the solvency
of the insurers, or any of their parent, subsidiary, excess, re-insurers or other companies or
group members.
§ 7 SUBROGATION AND WAIVERS
7.1 Contractor shall require all policies of insurance that are related to the Project and that are
secured and maintained by each Contractor to include clauses providing that each underwriter
and carrier shall waive all their respective rights of recovery, under subrogation or otherwise,
against Owner and Contractors rendering services at the Project, General Contractor, its
Subcontractors, other Project Contractors, and their Subcontractors, regardless of tier for
policies included in the OCIP (Section 1) as allowed by statute.
7.2 Contractor waives rights of recovery against its Subcontractors, Owner and other Contractors
rendering services at the Project, regardless of tier that Contractor may have or acquire
because of deductible clauses in or inadequacy of limits of policies of insurance that are in any
way related to the Project and that are secured and maintained by Contractor.
7.3 Contractor shall require its Subcontractors to waive subrogation rights in the same manner (as
waived in the preceding paragraph 7.1 by Contractor) against Owner and General Contractor,
other Subcontractors, other Project contractors and their Subcontractors, regardless of the tier.
§ 8 EVIDENCE OF INSURANCE
All insurance policies Contractor is required to obtain under the terms of this Contract shall
be endorsed to provide that the insurance company shall provide written notice to Owner at
least 30 days prior to the effective date of any cancellation of such policies.
Prior to the date on which Contractor commences any Work at the Project site, Contractor
shall furnish to Owner certificates of insurance evidencing all insurance required by this
Contract. If Owner directs, copies of the actual insurance policies or renewals or
replacements thereof shall be submitted to Owner. All copies of policies, if any, and
certificates of insurance submitted to Owner shall be in form and content acceptable to
Owner.
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§ 9 MISCELLANEOUS
9.1 Nothing contained herein shall relieve Contractor or its Subcontractors of their obligations
to exercise due care when performing any Work on the Project or to complete such Work in
strict compliance with the Contract.
9.2 By enrolling in the OCIP, the Contractor acknowledges that (A) the limits of OCIP provided
insurance are shared by all insured parties under the OCIP for the Project, (B) Owner(s) and
their affiliates of every tier disclaim any responsibility whatsoever for the availability,
adequacy or exhaustion of the limits of the OCIP, the present or future solvency of any OCIP
insurers, or any claims or disputes by, between, or among Owner(s) and Contractor and any
Subcontractor, or any tier, and any of the OCIP insurance carriers.
9.3 Any type of insurance or increase in limits not described herein which Contractor requires
for its own protection or as a result of any applicable law shall be its own responsibility and
expense.
9.4 Further Information. Should Contractor require further specific information or explanation
of the OCIP policies, Contractor should contract the Owner’s Insurance Representative or
OCIP Administrator, Lockton Companies – Construction Wrap-up Business Unit, at 303-
414-6000. Identify the Owner and the Project.