PUBLIC FACILITIES CONTRACT CITY OF PHOENIX CONTRACT NO. (Funding Year _______________) THIS CONSTRUCTION LOAN CONTRACT (the "Contract") is made and entered into by and between the City of Phoenix, a municipal corporation (the "CITY") and ________________, an Arizona nonprofit corporation whose principal address is _______________, Phoenix, Arizona, (the "AGENCY"). RECITALS A. The CITY has received certain funds pursuant to the Housing and Community Development Act of 1974, as amended, as part of a Community Development Entitlement Grant (the "CD Grant"). B. The CITY is authorized to utilize the CD Grant in accordance with the rules and regulations prescribed by the United States Department of Housing and Urban Development (HUD) for its Community Development Block Grant Program (the "CDBG Program"). C. The AGENCY is a nonprofit corporation community service organization and qualifies pursuant to OMB Circular A-122 as an eligible subrecipient under the CDBG Program. D. The AGENCY desires to ______best description of project and address_______________________________________ in Phoenix, Arizona (the "Project") to provide services to low and moderate income persons (described in the Scope of Work and Budget attached hereto as Exhibit A and incorporated herein by this reference)(the "Project"). E. The Agency has developed a project (described in the Scope of Work attached hereto as Exhibit A and incorporated herein by this reference) (the “Project”) which qualifies as an eligible public facilities activity pursuant to 24 CFR 570.201(c) and meets the national objectives pursuant to 24 CFR 570.208(a)(2) and therefore, the AGENCY is eligible to receive a portion of the CD Grant for the Project. F. The AGENCY desires to obtain a portion of the CD Grant to fund the Project, and subject to the following terms and conditions the CITY desires to utilize a portion of the CD Grant to assist the Agency to fund with the Project. AGREEMENT NOW, THEREFORE, it is mutually agreed by and between the parties hereto as 1
follows: 1. AMOUNT AND NATURE OF ASSISTANCE BY CITY: (a) Subject to all of the terms, covenants and conditions of this agreement, the CITY will provide to the AGENCY pursuant to the Promissory Note and Realty Mortgage, attached hereto as Exhibits B-1 and B-2 respectively, incorporated herein by this reference, funds to improve that real property more particularly described in the Scope of Work and Budget. This assistance shall be in an amount not to exceed $________, such amount to be used by the AGENCY for improvement of the subject property. The AGENCY specifically agrees to be responsible for all sums in excess of $___________ necessary to improve the property as described in the Scope of Work and Budget. AGENCY shall not use the funds received from the CITY in any other manner except as provided herein. Wrongful expenditure of funds will constitute a breach of this Contract and CITY shall have the right to terminate this Contract under the terms and conditions hereinafter recited. (b) Payment shall be made in such amounts and increments as may be approved by the CITY for various phases of work upon submission of a proper invoice prepared and submitted in accordance with the Progress Payment and Retention Schedule which is attached hereto as Exhibit C and incorporated herein by this reference. All claims against this Contract shall be made within one (1) year of the date of execution of this Contract. No payments shall be made after that date. 2. AGENCY'S ACTIVITIES: (a) AGENCY shall improve the property to provide services to low and moderate income persons. The term "improvements" as used in this Contract means the rehabilitation improvements indicated in the drawings, plans, and specifications contained or referenced in the Scope of Work and Budget. The term "low and moderate income" shall be defined as at or below 80% of the median income adjusted for family size for the area as defined in Section 102 of the Housing and Community Development Act of 1974, as amended. No change(s) shall be made in this Scope of Work except by written authorization by the CITY. (b) The AGENCY hereby assures the CITY that any construction contract will be in accord with the drawings, plans, and specifications contained or referenced in the Scope of Work. The AGENCY shall submit such specifications to the CITY. AGENCY shall not enter into a construction contract without the CITY's prior approval of the bid offer and the construction contractor. 3. CERTIFICATION OF COMPLETION: Upon satisfactory completion of all rehabilitation required by this Contract and subsequent written request by the AGENCY, the CITY shall furnish AGENCY with Certificate of Completion therefore, in recordable form as set forth in Exhibit D, which is 2
attached hereto and incorporated herein by this reference. The CITY shall not unreasonably withhold such Certificate of Completion. Such Certificate of Completion shall be and shall state that it constitutes conclusive determination of satisfactory completion of rehabilitation required by this Contract. 4. LOAN TERMS OF THE CD FUNDS: The Community Development Block Grant loan will be secured with a twenty-year lien on the real property as indicated by the Promissory Note and Realty Mortgage. For twenty years following the date of issuance of the Certificate of Completion the AGENCY will meet the service requirement in Section 6 or be subject to the repayment of the Community Development Block Grant loan, unless another acceptable alternative is exercised. Within the first five (5) years of an incomplete service term, full repayment of the Community Development Block Grant loan will be required. During years six (6) through twenty (20), the AGENCY will receive repayment of credits in accordance with the following schedule, which shall reduce the principal amount of the loan: Declining Loan Repayment Credits Year 6 Year 7 Year 8 Year 9 Year 10 6.67% 6.67% 6.67% 6.67% 6.67% Year 11 Year 12 Year 13 Year 14 Year 15 6.67% 6.67% 6.67% 6.67% 6.67% Year 16 Year 17 Year 18 Year 19 Year 20 6.67% 6.67% 6.67% 6.67% 6.67%
5. TIME FOR COMMENCEMENT AND COMPLETION OF CONSTRUCTION: The purchase and improvements referred to in Section 2 shall be commenced on ______________, and this Contract shall expire automatically on ________________________. 6. RESTRICTIONS ON USE: (a) Service Requirement The AGENCY agrees for itself, and its successors and assigns and every successor in interest to the property, or any part thereof, that the AGENCY and its successors and assigns shall devote the Project primarily for the provision of assistance to low and moderate income persons for the period of ten (10) years from the date of the issuance of the Certificate of Completion. If the property use is changed or the property is sold or vacated in less than the said period, except as permitted below, the AGENCY shall immediately repay to the CITY the outstanding loan principal. The AGENCY may also utilize one of the following disposition options. 3
(b) Disposition Options (1) With the CITY's prior written approval, AGENCY may use the facility for other eligible program(s) or permit another eligible program as determined by the CITY to use the facility for the required service term. No repayment is required if this disposition option is used. The AGENCY will not be permitted to earn or retain profit from a replacement provider utilizing the facility. (2) The AGENCY may elect to repay to the CITY the full amount of the Community Development Block Grant Loan within the first five (5) years or the declined balance of the Community Development Block Grant Loan during years six (6) through twenty (20), whereupon the CITY shall release its lien on the land as evidenced by the Realty Mortgage given by the AGENCY to the CITY. (3) With the CITY's prior written approval, the AGENCY could transfer the facility to the CITY or a non-CITY eligible party. In that event the AGENCY could be paid an amount equal to the market value of the facility minus the existing loan balance if funds are available from the CITY or non-CITY party. 7. PROHIBITION AGAINST TRANSFER OF PROPERTY: Except for matters of record, recorded in the Maricopa County, Recorder's Office. The AGENCY certifies that it has not made or created and will not make or suffer to be made any sale, assignment, conveyance, lease or transfer in any other form of or with respect to this agreement or the property subject to this agreement, or any part thereof or any interest therein or contract or agree to do any of the same, without the prior written approval of the CITY. This limitation shall be in effect for that period of time recited in Section 6 which restricts the use of the subject property. 8. POLITICAL ACTIVITIES: The AGENCY shall not use Community Development Block Grant funds to finance the use of facilities or equipment for political purposes or to engage in other partisan political activities, such as candidate forums, voter transportation, or voter registration. The AGENCY may, however, use a facility financed in any way with Community Development Block Grant funds on an incidental basis to permit political meetings, candidate forums, or voter registration campaigns, provided that all parties and organizations have access to the facility on an equal basis, and are assessed equal rent or use charges, if any.
9. DRUG-FREE WORKPLACE ACT OF 1988: The AGENCY certifies that it will maintain a drug-free workplace in accordance with the requirements of 24 CFR Part 24, Subpart F. 10. FEES FOR USE OF FACILITY: Since public facilities are assisted under this Contract with the intent of having them be made available to the public, fees charged for the use of these facilities must be reasonable and based on actual costs such as related utilities, cleanup, security and insurance. Excessive charges which will have the effect of precluding low and moderate income persons from using the facilities are not permitted. 11. DISPOSITION OF PROGRAM INCOME: At the end of the CDBG Program Year, the City may require remittance of all or part of any program income balances (including investments thereof) held by the Agency except those needed for immediate cash need, cash balances of a revolving loan fund, cash balances from a lump sum drawdown, or cash balances held for Section 108 security needs. Any 'program income' as defined in 24 CFR 570.500 (as and if amended) directly related to, and derived from the Subrecipient Grant that Agency is permitted to retain, shall, subject to Section 12 hereof, be used by the Agency for any eligible activity permitted under 24 CFR 570.201, consistent with the Scope of Work and Budget attached as Exhibit A, such program income shall be subject to all applicable laws and regulations covering the use of Community Development Block Grant (CDBG) funds. 12. REVERSION OF ASSETS: (a) The AGENCY shall transfer to the CITY, upon expiration of the Contract, any Community Development Block Grant funds on hand and any account receivables attributable to the use of Community Development Block Grant funds. (b) Any asset acquired or improved with CDBG funds must be used for a CDBG eligible purpose for a minimum of five years after the date of expiration of the contract specified in Section 5. 13. PERFORMANCE REPORTS: (a) The AGENCY shall prepare and submit annual performance reports, and other reports and records as may be required by the CITY from time to time, which shall certify the continued operation of the program as described in Sections 6 and 7. (b) The AGENCY also shall submit such reports as the U.S. 5
Department of Housing and Urban Development and the CITY may require, including litigation reports, financial management reports required by Federal Management Circular 74-7, equal opportunity reports as may be necessary pursuant to the rules and regulations under Title VI, Civil Rights Act of 1964; Title VIII, Civil Rights Act of 1968; Section 3 of the Housing and Urban Development Act of 1968; Section 109 of the Act, Executive Order 11246, as amended and Executive Order 11053, or any reports as may be further required. (c) The AGENCY shall submit a financial audit within 90 days after the close of the AGENCY's fiscal year during which federal funds were expended. The audit shall be in conformance with the audit requirements of OMB Circular A-133. 14. ACKNOWLEDGMENT: AGENCY shall acknowledge during the term of the contract the contribution of the City of Phoenix Community Development Block Grant loan toward the rehabilitation of the facility described in Exhibit A in all instances where the contributions to the Project are recognized or listed. 15. PROJECT IMPLEMENTATION: AGENCY shall have responsibility for day-to-day management and implementation of the Project. 16. UNFORESEEN DELAY IN PERFORMANCE: Neither the AGENCY nor the CITY shall be considered in breach or default of its obligations with respect to improvement of the property or the commencement and completion of rehabilitation of the improvements thereon, in the event of unforeseen delay in the performance of such obligations due to unforeseeable causes beyond its control and without its fault or negligence. The time for performance of the obligations and length of period of restriction on use shall be extended for the period of the unforeseen delay, as determined by the CITY if the party seeking the extension shall request it in writing of the other party within ten (10) days after the beginning of the unforeseen delay. 17. CONSTRUCTION, LABOR AND MATERIAL PAYMENT AND PERFORMANCE BONDS: AGENCY shall, prior to the commencement of any rehabilitation, ensure that the construction contractor shall post a construction labor and material payment bond and performance bond for the total amount of the rehabilitation contract in a form as approved by the CITY, which shall ensure the payment of all rehabilitation costs of the improvements. 18. INDEMNIFICATION AND HOLD HARMLESS
During the term of this Contract, the AGENCY shall indemnify, defend, hold, protect and save harmless the CITY and any and all of its councilmembers, officials, officers, employees and agents (hereinafter, “CITY”) from and against any and all claims, actions, liabilities, damages, losses or expenses of any kind and nature whatsoever, for injury to or death of persons, or loss of or damage to tangible or intangible property, including property owned by CITY, arising from, attributable to, caused or alleged to be caused in whole or in part, directly or indirectly by the negligence, acts or omissions of or from operations conducted by the AGENCY, its officers, agents or employees, or by any person or persons acting on behalf of the AGENCY or with the AGENCY's knowledge and consent, expressed or implied. This indemnity includes any claim or amount arising out of or recovered under the Workers’ Compensation Law or arising out of the failure of AGENCY to conform to any federal, state or local law, statute, ordinance, rule, regulation or court decree. It is the specific intention of the parties that the CITY shall, in all instances, except for claims arising solely from the negligent or willful acts or omissions of the CITY, be indemnified by AGENCY from and against any and all claims. It is agreed that AGENCY will be responsible for primary loss investigation, defense and judgment costs where this indemnification is applicable. 19. INSURANCE
The AGENCY, performing as an independent contractor hereunder, shall be responsible for providing Workers’ Compensation, General Liability and Automobile Liability insurance as listed below, which shall be satisfactory to the CITY. The insurance requirements herein are minimum requirements for this Contract and in no way limit the indemnity covenants contained in this Contract. The City in no way warrants that the minimum limits contained herein are sufficient to protect the Contractor from liabilities that might arise out of the performance of the work under this contract by the Contractor, his agents, representatives, employees or subcontractors and Contractor is free to purchase additional insurance as may be determined necessary. A. MINIMUM SCOPE AND LIMITS OF INSURANCE: Contractor shall provide coverage at least as broad and with limits of liability not less than those stated below. 1. Commercial General Liability - Occurrence Form (Form CG 0001, ed. 10/93 or any replacements thereof) General Aggregate Products-Completed Operations Aggregate Personal & Advertising Injury Each Occurrence Fire Damage (Any one fire) Medical Expense (Any one person) 7
$2,000,000 $1,000,000 $1,000,000 $1,000,000 $ 50,000 Optional
2. Automobile Liability - Any Auto or Owned, Hired and Non-Owned Vehicles (Form CA 0001, ed. 12/93 or any replacement thereof) Combined Single Limit Per Accident for Bodily Injury and Property and Property Damage $1,000,000 3. Workers' Compensation and Employer’s Liability Workers' Compensation Employer’s Liability:
B. SELF-INSURED RETENTIONS/DEDUCTIBLES: Any self-insured retentions and deductibles greater than $10,000 must be declared to and approved by the City. C. OTHER INSURANCE REQUIREMENTS: The policies are to contain, or be endorsed to contain, the following provisions: 1. Commercial General Liability and Automobile Liability Coverages: a. Additional Insured: “The City of Phoenix, its officers, officials, agents, and employees are additional insureds with respect to liability arising out of activities performed by, or on behalf of, the Contractor including the City's general supervision of the Contractor; products and completed operations of the Contractor; and automobiles owned, leased, hired or borrowed by the Contractor.” b. If the Contractor’s activities require its employees, agents or volunteers to contact or work with children under the age of eighteen (18), Contractor shall maintain Sexual Molestation or Sexual Abuse Coverage in the amount of $1,000,000 per occurrence, covering such employees, agents and volunteers. This coverage may be supplied either as an endorsement to the General Liability coverage listed above, or as a separate insurance policy. c. The Contractor’s insurance shall contain broad form contractual liability coverage. d. The City, its officers, officials, agents, and employees shall be additional insureds to the full limits of liability purchased by the Contractor even if those limits of liability are in excess of those required by this Contract. The commercial general liability additional insured endorsement will be at least as broad as the Insurance Services Office, Inc. (ISO) additional insured form B CG 20 10 1185. e. The Contractor's insurance coverage shall be primary insurance with respect to the City, its officers, officials, agents, and employees. Any insurance or self-insurance maintained by the City, its officers, officials, agents, or 8
employees shall be in excess of the coverage provided by the Contractor and shall not contribute to it. f. The Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability. g. Coverage provided by the Contractor shall not be limited to the liability assumed under the indemnification provisions of this Contract. h. The policies shall contain a waiver of subrogation against the City, its officers, officials, agents, and employees for losses arising from work performed by the Contractor for the City. 2. Workers' Compensation and Employer’s Liability Coverage: The insurer shall agree to waive all rights of subrogation against the City, its officers, officials, agents, and employees for losses arising from work performed by the Contractor for the City. D. NOTICE OF CANCELLATION: Each insurance policy required by the insurance provisions of this Contract shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thirty (30) days' prior written notice has been given to the City. Such notice shall be sent directly to (City Department Representative's Name, Neighborhood Services Department, Address) and shall be sent by certified mail, return receipt requested. E. ACCEPTABILITY OF INSURERS: Insurance is to be placed with insurers duly licensed or approved unlicensed companies in the State of Arizona and with an "A.M. Best” rating of not less that A- VII. The City in no way warrants that the above-required minimum insurer rating is sufficient to protect the Contractor from potential insurer insolvency. F. VERIFICATION OF COVERAGE: Contractor shall furnish the City with certificates of insurance (ACORD form or equivalent approved by the City) required by this Contract. The certificates for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. Any policy endorsements that restrict or limit coverage shall be clearly noted on the certificate of insurance. All certificates are to be received and approved by the City before work commences. Each insurance policy required by this Contract must be in effect at or prior to commencement of work under this Contract and remain in effect for the duration of the project. Failure to maintain the insurance policies as required by this Contract or to provide evidence of renewal is a material breach of contract. All certificates required by this Contract shall be sent directly to (City Department Representative's Name, Neighborhood Services Department, Address). The City Department, project/contract number and project description are to be noted on the certificate of insurance. The City reserves the right to require complete, certified copies 9
of all insurance policies and endorsements required by this Contract at any time. G. SUBCONTRACTORS: Contractor's certificate(s) shall include all subcontractors as insureds under its policies or Contractor shall furnish to the City separate certificates for each subcontractor. All coverages for subcontractors shall be subject to the minimum requirements identified above. H. APPROVAL: Any modification or variation from the insurance requirements in this Contract must have prior approval from the City of Phoenix Law Department, whose decision shall be final. Such action will not require a formal contract amendment, but may be made by administrative action.
The insurance requirements herein are minimum requirements for this contract and in no way limit the indemnity covenants that might arise out of the performance of the work under this contract by the Agency, its officers, agents or employees, and the Agency is free to purchase such additional insurance as may be determined necessary. The CITY shall have no responsibility or liability for such insurance coverage. The AGENCY must provide a certificate of insurance compliance prior to execution of this Contract. The City of Phoenix shall be listed as an additional insured (to the extent CITY is indemnified pursuant to the Indemnity Provisions herein) on all certificates of insurance, to read as follows: "The City of Phoenix, an Arizona municipal corporation, is an additional insured for work performed under the Flight to Safety Contract No. 87281 and must be notified thirty (30) days in advance of insurance cancellation or termination." Certification must include: name and address of insurance company (which must be authorized by the Insurance Department of Arizona to transact business in the State of Arizona); policy number; and liability coverage and amounts. During the period of rehabilitation and throughout the life of the facility while used by AGENCY, AGENCY shall purchase and maintain in full force and effect, comprehensive general liability insurance for bodily injury and property damage in an amount of not less than $1,000,000 combined single limits. The insurance must be purchased from an insurance company that is authorized by the Insurance Department of Arizona to transact business in the State of Arizona. AGENCY shall provide a certificate of insurance evidencing insurance compliance and the "City of Phoenix, Arizona, a municipal corporation" shall be named as an additional insured, to the extent indemnified herein. CITY shall continue to be named as an additional insured throughout the life of the facility while occupied and used by the AGENCY. 20. INSURANCE FOR DAMAGE AND DESTRUCTION: (a) AGENCY shall purchase and maintain in full force and effect, 10
throughout the life of the facility while used by the AGENCY, insurance policies to protect against financial loss by reason of destruction or damage of the building(s) and improvements, by fire and other hazards. An insurance policy covering, at least, the perils of fire and extended coverage (EC) shall be procured, providing a limit of not less than 100%, less a commercially reasonable deductible of the insurable value of the buildings, fixtures, improvements and betterment’s, and contents. AGENCY further agrees that in the event of destruction of or damage to the premises covered by the insurance, the insurance proceeds will be used with due diligence to repair or restore any damaged part or portion of the structure or its contents, to a condition comparable to or better than the condition existing prior to such damage or destruction. In the event of total or substantially total damage or destruction of the facility, to the extent that the building can no longer be used or reasonably reconstructed for use, the AGENCY agrees to pay to the CITY a pro-rata portion of the insurance proceeds. This pro-rata portion shall be based on the CITY's percentage of financial contribution to the total insurable value of the specific building(s) that are damaged or destroyed. The pro-rata portion will be discounted according to the schedule in Section 4. (b) AGENCY shall provide to the CITY evidence of the required property insurance coverage, throughout the life of the facility or ten (10) years, whichever occurs first. (c) Coverage amount as required by Section 19(a) above shall be reviewed by AGENCY at least every two (2) years and adjusted to correspond to present replacement value of the structure. 21. INDEBTEDNESS TO INTERNAL REVENUE SERVICE OR OTHER PUBLIC ENTITY: (a) Any judgment, lien, levy or outstanding amount owed to the Internal Revenue Service, State, County, City or other public entity by the AGENCY shall constitute an event of default or breach of this Contract for purposes of Section 21, unless previously approved by the CITY in writing, and may constitute sufficient reasons for cancellation of this Contract by the CITY according to the procedures contained in this Contract. (b) Prior to entering into this Contract and during the time period covered by this Contract, the AGENCY shall disclose any information related to the preceding paragraph. This shall also include the immediate reporting of breaches in payback arrangements or breaches in other agreements related to the above. Failure to comply with any disclosure provision in this Section may also constitute sufficient reason for cancellation of this Contract by the CITY according to the procedures contained in this Contract. 22. DEFAULT/REMEDIES: (a) In the event of any default in or breach of this Contract or any of its 11
terms or conditions by either party hereto, such party shall, upon written notice from the other, proceed immediately to cure or remedy such default or breach. In any event such breach or default shall be remedied within thirty (30) days after receipt of such notice. In case such action is not taken or not diligently pursued, or the default or breach not cured or remedied within thirty (30) days, the aggrieved party may terminate this Contract or institute such proceedings as may be necessary or desirable in its opinion to cure and remedy such default or breach, including, but not limited to, proceedings to compel specific performance by the party in default or breach of its obligations. In the event of a breach of contract by AGENCY, the CITY, in addition to any other remedy, may immediately withhold payment of funds until such default is cured. The CITY shall have the further right to declare the Promissory Note as secured by the Realty Mortgage immediately due and payable if such breach is not cured within thirty (30) days as provided herein. (b) In addition to the rights and remedies the CITY may have under Section 22(a) above, in the event there are one or more liens on the subject property which are or will be senior to the lien created under the Realty Mortgage referenced above (collectively, the "Senior Lien") and the AGENCY fails to perform any of the obligations secured by any Senior Lien, the AGENCY, upon written notice from the CITY shall immediately proceed to cure or remedy such default or breach, and, in any event, such breach or default shall be remedied by the AGENCY within thirty (30) days after receipt of such notice. In the event such failure to perform is not cured within thirty (30) days after receipt of the CITY's notices, the CITY shall have all the rights and remedies described in Section 22(a) above. 23. ACCESS TO RECORDS: The CITY, the U. S. Department of Housing and Urban Development, the Comptroller General of the United States, the Government Accounting Office or any of their duly authorized representatives shall have access to any books, documents, papers and records of the AGENCY which are pertinent to any activity performed under this Contract for the purpose of making audit, examination, excerpts and transcriptions. The AGENCY shall keep and maintain such books, documents, papers and records for a period of at least three years and/or after all claims, audits or litigation arising out of this Contract are fully settled and concluded. The AGENCY shall permit independent auditors access to its records and financial statements as necessary to comply with federal audit requirements. 24. INDEPENDENT AGENCY STATUS: AGENCY is an independent entity in the performance of all activities and functions pursuant to this Contract. AGENCY and CITY are not and shall not be considered as joint venturers, partners or agents of each other and neither shall have the power to bind or obligate the other. AGENCY's officers, employees, agents and subcontractors shall not be considered as officers, employees, agents or subcontractors 12
of the CITY. AGENCY hereby agrees not to represent to anyone that AGENCY is an agent of the CITY or has any authority to act on behalf of the CITY.
AGENCY shall be responsible for all employment compensation claims for Workman's Compensation benefits, or other claims by employees arising as a result of activities funded in whole or in part from the proceeds of this Contract, and the AGENCY shall hold the CITY harmless for any and all such claims. 25. NO THIRD PARTY BENEFICIARIES: This AGREEMENT is solely between the City and the AGENCY. Nothing in this AGREEMENT is intended to establish a right in any third party or create an expectation of benefit in any party other than those specifically named in this AGREEMENT. Any person receiving services from the AGENCY, as a result of this AGREEMENT is in privity solely with the AGENCY or other parties with whom they contract. 26. NONDISCRIMINATION AND AFFIRMATIVE ACTION REGARDING EMPLOYMENT: (a) The AGENCY and any contractor or supplier, in performing under this Contract, shall not discriminate against any worker, employee or applicant, or any member of the public, because of race, color, religion, gender, national origin, age or disability, nor otherwise commit an unfair employment practice. The AGENCY and any subcontractor or supplier will take affirmative action to ensure that applicants are employed and that employees are dealt with during employment without regard to their race, color, religion, gender, national origin, age, or disability. Such action shall include but not be limited to the following: Employment, promotion, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training; including apprenticeship as well as all labor organizations furnishing skilled, unskilled and union labor, or who may perform any such labor or services in connection with this Contract.
(b) The AGENCY further agrees that this clause will be incorporated in all construction, supplier or job consultant contracts entered into in connection with this Contract. (c) The AGENCY assures that its authorized agent will obtain all supplier and contractor certifications and that those suppliers and contractors will adhere to all affirmative action requirements. (d) The attention of all suppliers, lessees or use permittees is called to Ordinance No. G881, passed October 8, 1968; Ordinance No. G1080, passed April 6, 1971; Ordinance No. G1121, passed October 5, 1971; and Ordinance No. G3472, passed November 20, 1991. 27. COMPLIANCE WITH LAWS: (a) The AGENCY shall give all notices and comply with all laws, ordinances, rules, building codes, regulations and lawful orders of any public authority bearing on the performance of activities pursuant to this Contract. If the AGENCY observes that any of the Contract documents are in conflict with any laws, statutes, building codes and/or regulations, it shall promptly notify the CITY, in writing, and any necessary changes shall be accomplished by appropriate written modification. (b) The AGENCY, and its contractors, shall abide by all regulations pursuant to the Immigration and Naturalization Reform Act of 1986, specifically as it relates to employment and client services, and such other provisions as may be applicable. (c) Should the AGENCY perform any work knowing it to be contrary to applicable laws, ordinances, rules, building codes and/or regulations, and not give proper notice to the CITY, it shall assume full responsibility therefore and shall bear all cost incurred due to its negligence. (d) The AGENCY shall comply with the following laws related to the receipt of Community Development Block Grant funds: (1) The AGENCY shall comply with the requirements and standards of OMB Circular No. A-122 "Cost Principles for Non-Profit Organizations", and with OMB Circular A-110. The AGENCY's financial management system shall include at a minimum accurate, current and complete disclosures of the grant program; records which adequately identify the source and application of funds provided for financially assisted activities; effective control over and accountability for grant cash, real and personal property and other assets; comparison of actual outlays with budgeted amounts; and records supported by source documentation. (2) AGENCY shall carry out its responsibilities in compliance with 15
Public Law 88-352 and Public Law 90-284, in order to further fair housing; and to comply with the requirements of Executive Order 11063, as amended by Executive Order 12259; Title VI of the Civil Rights Act of 1964 (42 USC 2000d), the prohibitions against age discrimination under the Age Discrimination Act of 1975 (42 USC 6101-07), the prohibitions against discrimination on the basis of religion as amended in 24 CFR 570.602, and the prohibitions against discrimination against handicap individuals under Section 504 of the Rehabilitation Act of 1973 (19 USC 794), and compliance with the requirements of the Architectural Barriers Act of 1968 (42 USC 4151-4157). (3) AGENCY shall comply with the requirements of the Davis-Bacon Act, as amended (40 USC 276a-276a-5), and the Contract Work Hours and Safety Standards Act (40 USC 327 et.seq.). However, these provisions shall not apply to residential property rehabilitation unless such property contains eight units or more. (4) AGENCY shall comply with the requirements of the Flood Disaster Protection Act of 1973 (42 USC 4106). (5) AGENCY shall comply, as applicable, with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (URA) and with residential antidisplacement and relocation requirements set forth in 24 CFR 570.606. (6) AGENCY shall comply with the Affirmative Action requirements of Executive Order 11246, as amended by Executive Order 12086, and the regulations issued pursuant thereto (41 CFR 60); and with Section 3 of the Housing and Urban Development Act of 1968 (12 USC 1701u). (7) AGENCY shall comply with the prohibitions against the use of lead-based paint pursuant to the Lead-Based Paint Poisoning Prevention Act (42 USC 4821, et.seq., and the regulations issued thereunder, as set forth at 24 CFR 35. (8) AGENCY agrees that neither it, nor its principals is presently debarred, suspended proposed for debarment, declared ineligible, or voluntarily excluded from participation in the transaction evidenced by this Agreement by any federal department or AGENCY, and agrees to comply with the requirements of 24 CFR 24. (9) AGENCY agrees to comply with the conflict of interest provisions of 24 CFR 570.611, as amended. (10) AGENCY agrees to comply with the provisions of the Copeland "Anti-Kick Back" Act (18 USC 874) as supplemented by 29 CFR, part 3.
28. DISPUTES: Any dispute not disposed of by mutual agreement by the parties hereto shall be decided in accordance with the applicable Arizona laws, ordinances and codes of the state and local governments. 29. AVAILABILITY OF FUNDS: It is expressly understood by the parties hereto that this Contract has been negotiated and executed in anticipation of receipt of funds by the CITY from the U.S. Department of Housing and Urban Development pursuant to the Community Development Block Grant Program and that therefore the terms, conditions and sums payable under this Contract are subject to any changes or limitations which may be required by the terms of said grant agreement. 30. CONSULTATION: The AGENCY and the CITY hereby agree to consult one another on a timely basis regarding the applicability of this Contract to any condition which may impact the execution of this Contract and which may arise during the ten (10) year term referred to in Section 6. 31. CONTINUING LIABILITY: AGENCY shall have continuing liability after the term of this Contract for any breach of this Contract, including failure to perform in accordance with required Federal law and rules and regulations promulgated thereunder until after all complaints, investigations and sanctions, including those arising out of audits performed by the CITY, U.S. Department of Housing and Urban Development or other authorized agencies are resolved. AGENCY shall be liable for any sanctions or requirements imposed at any time upon the CITY arising out of AGENCY's activities performed pursuant to this Contract. 32. TRANSACTIONAL CONFLICTS OF INTEREST: All parties hereto acknowledge that this agreement is subject to cancellation by the City of Phoenix pursuant to the provisions of the Section 38-511, Arizona Revised Statutes. 33. ROLES AND RESPONSIBILITIES: (a) Chief Executive Officer The AGENCY's Chief Executive Officer is responsible for the execution of the AGENCY activities and obligations enumerated in this Contract. 4
Unless otherwise directed by the AGENCY, the CITY will contact the Chief Executive Officer when communicating with the AGENCY. The CITY shall be notified, in writing, of changes of personnel filling this position. The Chief Executive Officer may utilize the professional services of other advisors as his/her agent. Said agent shall be responsible to the Chief Executive Officer. (b) Community Development Deputy Director The CITY's Community Development Deputy Director, currently assigned to the Community Development Division, is the CITY's responsible representative to the Project. The AGENCY shall contact this individual when communicating with the CITY unless otherwise directed. The AGENCY shall be notified of changes of personnel filling this position. The Community Development Deputy Director may utilize the professional services of other advisors as his/her agent. Said agent shall be responsible to the Community Development Deputy Director. 34. NOTICES, DEMANDS AND COMMUNICATIONS BETWEEN THE PARTIES: Formal notices, demands and communications between the CITY and AGENCY shall be deemed sufficiently given if dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the CITY and the AGENCY addressed to each party as follows: CITY: City of Phoenix Neighborhood Services Department Community Development Division 200 West Washington, Fourth Floor Phoenix AZ 85003-1611 AGENCY: Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate by mail as provided in this Section. 35. ACQUISITION OR CONDEMNATION: In the event the CITY exercises its rights under its powers or eminent domain to condemn the real property upon which the facility structure is located, the value of the CITY-funded improvements minus repayment credits (as provided for in Section 4 herein) earned as of the date of valuation shall be deducted from the fair market value of the total 5
real property sought to be acquired. By this provision, it is the intent of the parties that the CITY shall not be required to pay any sum for the improvements that were built with CITY funding pursuant to this Contract. 36. SPECIAL CONDITIONS FOR CONSTRUCTION ACTIVITIES ASSISTED PURSUANT TO TITLE I OF THE COMMUNITY DEVELOPMENT ACT OF 1974, AS AMENDED: The AGENCY shall comply with and require all contractors paid with funds provided by this Contract to comply with all of the applicable provisions of the Housing and Community Development Act of 1974, as amended, 24 CFR Part 570 and the Special Conditions for activities assisted pursuant to Title I of the Community Development Act of 1974, as amended attached hereto as Exhibit E. 37. CONTRACT DOCUMENTS: This Contract includes the following documents: • • • • • • Scope of Work and Budget - Exhibit A Promissory Note - Exhibit B-1 and Realty Mortgage - Exhibit B-2 Progress Payment and Retention Schedule - Exhibit C Certificate of Completion - Exhibit D Special Conditions for Construction Activities Assisted Pursuant to Title I of the Community Development Act of 1974, as amended Exhibit E General Wage Decision Number ___________ (Modification Number _____ dated ______________) and Federal Labor Standards Provisions (HUD - 4010) - Exhibit F.
DATED this _____ day of ____________, 200__. CITY OF PHOENIX, a municipal corporation FRANK FAIRBANKS, City Manager ________________________________ By: Tammy J. Perkins, Director Neighborhood Services Department ATTEST: ________________________ City Clerk APPROVED AS TO FORM: _______________________ City Attorney _____________ ., an Arizona nonprofit corporation, ___________________________ By:
EXHIBIT A REHABILITATION SCOPE OF WORK AGENCY: AGENCY ADDRESS: PROJECT NAME: PROJECT LOCATION: ARCHITECT:
AGENCY PROJECT MANAGER: DESCRIPTION OF PROJECT:
It is anticipated that the Community Development Block Grant Program will fund the project. REHABILITATION WORK TO BE PERFORMED:
EXHIBIT A BUDGET
EXHIBIT B-1 PROMISSORY NOTE IN CONSIDERATION for the Community Development Block Grant (CDBG) Loan in the principal amount of __________________________________________________dollars (the "CDBG Loan"), _______________, an Arizona nonprofit corporation, (the "MAKER") promises to pay to the City of Phoenix, Arizona, a municipal corporation, organized and existing under the laws of the State of Arizona, (the "CITY") or order, at the CITY's offices located at New City Hall, 200 West Washington, Fourth Floor, Phoenix Arizona 85003-1611, or at such other location as the CITY shall specify, the amounts specified below, upon the occurrence of any one or more of the following events as specified in that certain contract by and between the CITY and the MAKER, Contract # _________ (the “Contract”): 1. The failure of the MAKER (after 30 days prior written notice as required by Section 21 of the Contract) to maintain the project (the "Project") as an improvement of the facility to provide services to low and moderate income persons in compliance with the Service Requirement or the Project Disposition Options as set forth in Section 6 of the Contract, during the twenty years following the date of the issuance of the Certificate of Completion; or 2. The failure of the MAKER (after 30 days prior written notice as required by Section 21 of the Contract) to comply with or be in compliance with any other terms or conditions of the Contract during the required service term; or 3. The exercise by MAKER of its Project Disposition Option to repay the CDBG Loan to the CITY in accordance with Section 6 of the Contract during the required service term; or 4. The sale, transfer, conveyance, or other disposition of the Project in accordance with the Project Disposition Option under Section 6 of the Contract during the required service term. If payment shall be required because of the occurrence of an event described in paragraphs 1 through 4, above, the MAKER shall pay to the CITY the total Community Development Block Grant Loan minus any repayment credits as shown in the schedule in Section 4 of the Contract. Upon the occurrence of all or any of the events described in 1 through 4 above, the CITY may exercise any and all rights and remedies available to the CITY at law, in equity, under the Contract or under the Realty Mortgage of even date herewith (the "Mortgage") by the MAKER in favor of the CITY. The MAKER further agrees as follows: (1) Form of Payment: Principal will be payable in the lawful money of the United States of America. 10
(2) Remedies: The remedies of the CITY as provided in this Promissory Note, the Contract and the Mortgage or any other instrument securing this Promissory Note, shall be cumulative and concurrent, and may be pursued singularly, successively or together, in the sole discretion of the CITY, and may be exercised as often as occasion therefore shall arise. No act of omission or commission by the CITY, including specifically any failure to exercise any right, remedy or recourse, shall be deemed to be a waiver or release of any right, remedy or recourse, such waiver or release to be affected only through a written document executed by the CITY. A waiver or release with reference to any one event shall not be construed as continuing, as a bar to, or as a waiver or release of, any subsequent right, remedy or recourse as to a subsequent event. (3) Attorney's Fees: In the event a lawsuit is brought to recover any amount due under this Promissory Note, the MAKER agrees to pay all reasonable costs and attorney's fees in addition to the amount found to be due hereunder. (4) Governing Law: This Promissory Note shall be construed and governed by the laws of the State of Arizona. (5) Severability: If any provision of this Promissory Note is construed or interpreted by a court of competent jurisdiction to be void, invalid, or unenforceable, such decision shall affect only those provisions so construed or interpreted and shall not affect the remaining provisions of this Promissory Note. (6) Time of Essence: Time is of the essence in the performance of the MAKER's obligations under this Promissory Note. (7) Waiver: The MAKER for itself and for its successors hereby waives presentment and demand for payment, protest, notice of protest and nonpayment, dishonor and notice of dishonor, initiation of suit, lack of diligence or delays in the collection or enforcement of this Promissory note and other indulgence or forbearance. Security: This Promissory Note is secured by the Realty Mortgage, filed and recorded with the Maricopa County Recorder, Maricopa County, Arizona.
IN WITNESS WHEREOF, the MAKER has executed this Promissory Note on the date set forth below. ________________. an Arizona nonprofit corporation ___________________________ By: ________________________ Dated: __________________
WHEN RECORDED, MAIL TO: City of Phoenix, Arizona Neighborhood Services Department Grants Compliance Division 200 West Washington, 4th Floor Phoenix, Arizona 85003-1611
EXHIBIT B-2 REALTY MORTGAGE KNOW ALL MEN, THAT _________________, an Arizona nonprofit corporation, hereinafter referred to as MORTGAGOR, in consideration of ______________________________DOLLARS, in hand paid by the CITY OF PHOENIX, a municipal corporation, hereinafter referred to as MORTGAGEE, the receipt whereof is hereby acknowledged, does hereby grant, bargain, sell and convey to MORTGAGEE, and the successors, heirs and assigns of MORTGAGEE forever, the following real estate, lying and being in the County of Maricopa County, State of Arizona, known and described as:
Together with: (1) All buildings and improvements now or hereafter placed thereon; (2) all rents, issues and profits hereof; (3) all classes of property now, or at any time hereafter, attached to or used in any way in connection with the use, operation or occupancy of the above-described real property; (4) all property, rights and privileges now or hereafter owned by MORTGAGOR or now or hereafter appurtenant to said premises, which entitle MORTGAGOR or said premises to receive water or electrical power for use thereon. All of the foregoing shall be deemed to be, remain and form part of the realty and subject to the lien of this mortgage. TO HAVE AND TO HOLD the same to MORTGAGEE, and the successors, heirs, executors, administrators or assigns of MORTGAGEE forever. MORTGAGOR hereby covenants and warrants that MORTGAGOR is well and truly seized of good and perfect title to the premises above conveyed in fee simple and has good right and lawful authority to convey the same, and that the title so conveyed is clear, free and unencumbered and that MORTGAGOR will forever warrant and defend the same to MORTGAGEE against all claims whatsoever. PROVIDED, ALWAYS, and these presents are upon the express conditions, that if MORTGAGOR shall: (1) Pay to MORTGAGEE, the just and full sum of ___________________________________________Dollars, with interest thereon, according to the terms and conditions of Contract # __________ and that certain promissory note attached herein as Exhibit B-1 and bearing the date of ________________ executed by MORTGAGOR and payable to the order of MORTGAGEE; (2) pay to the proper officers before delinquency, all taxes and assessments, general or special, and all general or special assessments, charges, or taxes for irrigation water, power or appurtenant water stock which shall be charged, levied or 13
assessed upon said real estate; (3) pay when due all encumbrances, adverse claims, charges and liens on said property or any part thereof, which may have or acquire priority to or impair the security of this mortgage; and (4) insure and keep all improvements on said premises insured for the protection of MORTGAGEE in such manner and in such amounts as MORTGAGEE may approve, and pay the premiums for said insurance, and keep the policies therefor, properly endorsed on deposit with MORTGAGEE, it being understood and agreed that each insurance company concerned is hereby authorized and directed to make payments for such loss directly to MORTGAGEE and that such loss proceeds shall, at MORTGAGEE'S option, be applied on said indebtedness, whether due or not, or to the restoration of said improvements; then these presents shall be null and void. In case of the non-payment of any sum of money, either principal, interest, taxes, assessments, dues or assessments for irrigation water or appurtenant water stock, power bills, adverse claims, encumbrances, charges or liens, or premiums of insurance, at the time or times herein provided for such payments, or upon the failure of MORTGAGOR to insure the buildings upon said premises and keep the policies assigned or made payable to MORTGAGEE, and deliver the said policies to MORTGAGEE, if so requested, all as provided by the conditions of these presents, or of the aforesaid promissory note(s), or in case of the failure of MORTGAGOR to keep or perform any other agreements, stipulation or condition, herein contained, then the whole principal sum of said notes(s), at the option of MORTGAGEE, shall be deemed to have become due, and the same, with interest thereon at the rate contracted, shall thereupon be collectible in a suit at law or by foreclosure of this mortgage, in the same manner as if the whole of said principal sum had been made payable at the time when any such failure shall occur. MORTGAGOR further covenants and agrees, that in case of failure on the part of MORTGAGOR to pay any of said taxes, assessments, dues or assessments for irrigation water or appurtenant water stock, power bills, adverse claims, encumbrances, charges or liens, or premiums of insurance, as above provided, MORTGAGEE may pay the same, and the amount so paid, together with interest thereon at the rate of eight per cent per annum shall become a part of the debt secured by this mortgage and a lien on said premises immediately due and payable at the option of MORTGAGEE. MORTGAGOR also covenants and agrees with MORTGAGEE that MORTGAGOR will, during existence of this mortgage, neither permit nor commit waste on said premises; and, if the mortgaged premises are not or hereafter used as farm lands, will purchase and use thereon the amount of water necessary to preserve and protect any water rights to which said premises are or shall be entitled, and keep said premises in continuous cultivation and carefully irrigate the same; and will take the same care thereof that a prudent owner would take, and in any action to foreclosure this mortgage a receiver shall, upon application of the plaintiff in such action and without notice to the defendants, be appointed by the Court to take charge of said property, to manage, carry on, protect, preserve and repair the same and receive and collect all the rents, issues and profits thereof, and apply the same to the payment of sums spent to protect, preserve and repair said property, the payment of taxes and other charges, including his own compensation, 14
and to the payment of said note(s) and interest, which may be due or become due during the pendency of the action until sale be finally made and deed made and delivered thereunder, and in case of such foreclosure MORTGAGOR will pay to MORTGAGEE in addition to the taxable costs of the foreclosure suit, a reasonable amount as attorney's fees, together with a reasonable fee for title search made in preparation and conduct such suit, all of which shall be a lien on said premises and secured by this mortgage; and, in case of settlement after suit is brought but before trial, MORTGAGOR agrees to pay a reasonable attorney's fee, as well as all of the costs of such suit and the costs of the appointment of a receiver, if appointed, and any sum expended by such receiver or MORTGAGEE in the management, carrying on, protection, preservation and repair of said property. MORTGAGOR and MORTGAGEE further covenant and agree that this instrument shall be construed as securing the indebtedness herein mentioned and any and all additional indebtedness, whether as future advancement or otherwise, together with any renewals or extension of the said indebtedness herein secured or any advancements and any and all costs of collecting the same. The covenants and agreements herein contained shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of the respective parties hereto. DATED this _____ day of ____________, 200__. _________________, an Arizona nonprofit corporation ___________________________ By: __________ STATE OF ARIZONA County of Maricopa ) ) ss. )
This instrument was acknowledged before me this day of , 2001 by _____________________. _____________________________ Notary Public My Commission Expires: ______________________
EXHIBIT C PROGRESS PAYMENT AND RETENTION SCHEDULE 1. PAYMENT INSTRUCTIONS:
The CITY shall release and pay to the AGENCY from the Community Development Funds provided for in Paragraph I of the Contract # __________ in accordance with the following procedures: (A) Detailed breakdown of Contract amount: Within ten (10) days of receipt of Notice to Proceed, the AGENCY shall direct the Contractor to submit to the NSD Project Manager a complete breakdown of the costs for the project showing the value assigned to each part of the work, based on his or the Subcontractor's cost, including an allowance for Contractor's profit and overhead. This breakdown then shall be used as the basis for all requests for payment. (B) Neighborhood Services Department (NSD) shall have the right to inspect all rehabilitation activities as work progresses to ensure that such rehabilitation is proceeding in accordance with approved plans and specifications. If the NSD Rehabilitation Monitor determines that such work is not in accordance with the plans and specifications, the AGENCY, upon notice by the NSD Manager, shall immediately direct the Contractor to make the changes required in order to comply with such plans and specifications. (C) Requests for Payment: Unless the AGENCY is in default in one or more provisions of this Contract, payments will be made as follows: (i) (ii) Payments shall be made in monthly installments or as the work progresses. Where the AGENCY utilizes the services of a Contractor, the Contractor shall submit to the AGENCY a fully executed AIA G702-03, together with signed lien waivers, copies of building permits, and documents as may be required by the CITY in support of the requested amount. The AGENCY shall then review, sign and forward the payment requisition and documents to the NSD Manager, along with a cover letter on its letterhead, by the fifth day of the month. The cover letter shall set forth such details concerning construction of the Project as the CITY shall require and certify that no lien of any kind has been filed against the AGENCY or the Project. Where the AGENCY elects to act as its own Contractor, the AGENCY shall submit a summary request for payment on its letterhead to the NSD Project Manager together with signed lien waivers, copies of building permits, and any documents as may be required by the CITY in support of the requested amount. The AGENCY must include 16
receipts for the costs incurred as supporting documentation for its payment requisition. For construction/rehabilitation projects the summary invoice should include the following information: Original Contract Amount Net Change by Change Orders Contract Sum to Date Work Completed Previously Less 10% Retainage Payments Received Previously This Payment Request Less 10% Retainage Current Payment Due Combined Total Balance to Finish, Including Retainage $ $ $ $ $ $ $ $ $ $ $
(D) The CITY shall issue a warrant payable to the AGENCY, which shall in turn pay the Contractor. The Agency shall have 14 days after the receipt of the City warrant to pay the Contractors. AGENCY: ______________ PROJECT NAME:
AGENCY ADDRESS: _____________ CONTRACT NUMBER: ___________
PROJECT ADDRESS: ______________________________
EXHIBIT D CERTIFICATE OF COMPLETION Exempt Under A.R.S. § 42-1614A(3) WHEREAS, the CITY OF PHOENIX, a municipal corporation of the State of Arizona ("CITY"), and ___________________, "AGENCY", entered into a Contract, dated _______________200_, City Contract No. ______, for purposes to _____________list address__in the City of Phoenix, Arizona, herein referred to as the "Site"; and WHEREAS, as referenced in Paragraph 3 of the Contract, the CITY shall furnish the AGENCY with a Certificate of Completion after AGENCY has completed the acquisition and renovation required under the Contract; and WHEREAS, such Certificate of Completion shall be conclusive determination of satisfactory completion of the renovation of the real property to which the Certificate relates as required by said Contract, and of full compliance with the terms of the Contract with respect to the improvements; NOW THEREFORE, 1. As provided in said Contract, the CITY does hereby certify that the acquisition and renovation on the Site have been satisfactorily performed and completed, subject to the provisions and covenants of Section 2 below. 2. This Certificate shall not constitute evidence of compliance with or satisfaction of the Notice of Completion referred to in the State of Arizona's Mechanics and Materialmen's Liens Law nor shall it constitute a Certificate of Occupancy or other entitlement of use required to be issued by other departments or divisions of the CITY. 3. The effective date of this Certificate of Completion will be April 23, 1996.
IN WITNESS WHEREOF, the CITY has executed this Certificate of Completion this 18th day of May, 2000. CITY OF PHOENIX, a municipal corporation Frank Fairbanks, City Manager ______________________________ By: Tammy J. Perkins Neighborhood Services Director APPROVED AS TO FORM: __________________________ City Attorney City Attorney
EXHIBIT E SPECIAL CONDITIONS FOR CONSTRUCTION ACTIVITIES ASSISTED PURSUANT TO TITLE I OF THE HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1974, AS AMENDED Special Conditions consist of the following 13 provisions and the Federal Labor Standards Provisions [U.S. HUD-4010 (2-84] attached hereto: 1. Equal Opportunity The following provisions shall apply to this Contract and any construction contract or subcontract having a value of more than $10,000: (1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, handicap, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, handicap or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. (2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, handicap, or national origin. (3) The contractor will send to each labor union or representative or workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or worker's representative of the contractor's commitments under Section 202 of Executive Order 11246 of September 24, 1965, as amended, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (4) The contractor will comply with all provisions of the Executive Order 11246 of September 24, 1965, as amended, and of the rules, regulations, and relevant orders of the Secretary of Labor.
(5) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, as amended, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to its books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. (6) In the event of contractor's noncompliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be cancelled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, as amended, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, as amended, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (7) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States. The applicant further agrees that it will bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, that if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract. The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance. 20
The applicant further agrees that it will refrain from entering into any contractor or contract modifications subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violations of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions. Cancel, terminate, or suspend in whole or in part this grant (contract, loan insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings. Contractor shall comply with the provisions of 41 CFR Part 60-4 relating to Construction Contracts -- Affirmative Action Requirements, in all solicitations and contracts for construction. 2. Nondiscrimination A contractor may not, under any program or activity, directly or through contractual or other arrangements, on the ground of race, color, national origin, handicap, or sex: (1) Deny any facilities, services, financial aid, or other benefits provided under the program or activity. (2) Subject to segregated or separate treatment in any facility in, or in any matter or process related to receipt of any service or benefit under the program or activity. (3) Restrict in any way access to, or in the enjoyment of any advantage or privilege enjoyed by others in connection with facilities, services, financial aid, or other benefits under the program or activity. (4) Treat an individual differently from others in determining whether the individual satisfied any admission, enrollment, eligibility, membership, or other requirement or condition which individuals must meet in order to be provided any facilities, service, or other benefits provided under the program or activity.
(5) employee. 3.
Deny an opportunity to participate in a program or activity as an
Nondiscrimination Based on Handicap No otherwise qualified individual with handicaps in the United States shall, solely by reason of his or her handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination in employment, services, housing, building and services accessibility or any other aspects of this program. The Contractor shall comply with the provisions of Section 504 of the Rehabilitation Act f 1973, as amended (29 U.S.C. 794), Section 109 of the Housing and Community Development Act of 1974, as amended (42 U.S.C. 5309) and the Americans with Disabilities Act of 1990.
Clean Air and Water In all contracts in excess of $100,000, contractor agrees as follows: (1) To 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), which prohibit the use of non-exempt Federal contracts, grants, or loans of facilities included on the EPA List of Violating Facilities. Contractor shall report all violations to the grantor agency and to the USEPA Assistant Administrator for Enforcement (EN-329). (2) To insert the substance of the provisions of this clause into any subcontract in excess of $100,000.
Energy Efficiency Contractor will observe all mandatory 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 (P.L. 94-163).
Employment Opportunities for Business and Lower Income Persons-Section 3 (1) The work to be performed under this contract is subject to the requirements of section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (section 3). The purpose of section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD-assisted projects covered by section 3, shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly persons who are recipients of HUD assistance for housing.
(2) The parties to this contract agree to comply with HUD's regulations in 24 CFR part 135, which implement section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations. (3) The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the contractor's commitments under this section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the section 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. (4) The contractor agrees to include this section 3 clause in every subcontract subject to compliance with regulations in 24 CFR part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 135. (5) The contractor will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed, were not filled to circumvent the contractor's obligations under 24 CFR part 135. (6) Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts. (7) With respect to work performed in connection with section 3 covered Indian housing assistance, section 7(b) of the Indian Self-Determination and Education Assistance Act(25 U.S.C. 450e) also applies to the work to be performed under this contract. Section 7(b) requires that to the greatest extent feasible (i) preference and opportunities for training and employment shall be given to Indians, and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian-owned Economic Enterprises. 23
Parties to this contract that are subject to the provisions of section 3 and section 7(b) agree to comply with section 3 to the maximum extent feasible, but not in derogation of compliance with section 7(b). 7. Lead Based Paint Poisoning Prevention Act of 1973 The contractor agrees that exterior and/or interior paints, enamels, and/or primers used on any surface in residential structures constructed or rehabilitated under this contract shall not contain more than ½ of 1% lead by weight (calculated as lead metal) in the total nonvolatile content of liquid paints. Contractor further agrees to abide by all federal, state and local rules and regulations now in force or to be enacted in the future pertaining to the lead based paint including, but not limited to, requirements of 24 CFR 35.10 through 35.25 and 24 CFR 570.608. 8. Ineligible Subcontractors Contractors shall not use funds received pursuant to this contract to directly or indirectly employ, award, award contracts to, or otherwise engage the services of, or fund any contractor or subrecipient during the period of debarment, suspension, or placement on ineligibility status under the provisions of 24 CFR Part 24. 9. Architectural Barriers act of 1968 Contractor shall comply with the Architectural Barriers Act of 1968, (42 U.S.C. 4151) and the Uniform Federal Accessibility Standards FED-STD-795 (April, 1988) subject to the exceptions contained in 41 CFR, Subpart 101-19.604. 10. Access to Records The City, the U.S. Department of Housing and Urban Development, the Comptroller General of the United States, the Government Accounting Office or any of their duly authorized representatives shall have access to any books, documents, papers and records of contractor which are pertinent to any activity performed under this contract for the purpose of making audit, examination, excerpts, and transcriptions. Contractor shall keep and maintain such books, documents, paper and records for a period of at least three years after all claims and audits arising out of this contract are fully settled and concluded. 11. Contracting with Minority, Women's, and Disadvantaged Business Enterprises Pursuant to national policy to award a fair share of contracts to Minority, Women's, and Disadvantaged business enterprises, contractor shall take affirmative steps to assure that Minority, Women, and Disadvantaged are utilized when possible as sources of supplies, equipment, construction, and services. 24
Such affirmative steps shall include the following: (1) Include qualified Minority, Women's, and Disadvantages businesses on solicitation lists. (2) Assure that Minority, Women's, and Disadvantaged businesses are solicited whenever they are potential sources. (3) When economically feasible, divide total requirements into small tasks or quantities so as to permit maximum Minority, Women's, and Disadvantaged business participation. (4) There the requirement permits, establish delivery schedules which will encourage participation by Minority, Women's, and Disadvantaged businesses. (5) Use the services and assistance of the Small Business Administration, the Office of Minority Business Enterprise of the Department of Commerce and the Community Services Administration as required. (6) Comply with the applicable requirements of the Minority, Disadvantaged, and Women Business Enterprise Policy Plan for the City of Phoenix. (7) 12. Include affirmative steps, one through six in any subcontract.
Anti-lobbying Certification In all contracts in excess of $100,000 the contractor hereby certifies, to the best of his or her knowledge and belief, that: (1) 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, 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, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of and Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the Contractor shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying", in accordance with its instructions. 25
Archaeological Remains Should archaeological remains be encountered during ground disturbing activities, work will cease in the area of discovery. The City's Community Development Administrator or Representative shall be notified immediately. Work in the area of discovery will not resume until the significance of the discovery has been assessed and the environmental clearance updated.
c:\pfcontract\Revised 2/20/03 by GH/Law Dept.