1536 Miller Construction Services0 FN
MEMORANDUM
TO: Jan Dougherty, City Clerk
FROM Andrew Thomas, Senior Project Manager
DATE: October 22, 2012
RE: HUD NSP3 Developer Agreement
1 �4e
To The City Clerks Office,
Please find enclosed the original copy of the HUD Neighborhood Stabilization Program
Three (NSP3) Acquisition, Rehabilitation, and Resale of Single Family Homes Developer
Agreement. This Agreement is for the City of Sanford and Miller Construction Services,
LLC, and is for the City Clerk records.
Cc: File
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HUD NEIGHBORHOOD STABILIZATION PROGRAM THREE
ACQUISITION, REHABILITATION, AND RELEASE OF SINGLE
FAMILY HOMES
DEVELOPER AGREEMENT
RFP # 10/11 -18
THIS AGREEMENT is made and entered into this day of N , 2012, by and
between the City of Sanford, a municipality of the State of Florida, w1t6se address is City Hall,
300 North Park Ave, Sanford, Florida, 32771, hereinafter referred to as the "City ", and Miller
Construction Services LLC a Florida corporation, whose address is 8241 Via Bonita Street,
Sanford, Florida 32771, hereinafter referred to as the "DEVELOPER ".
WHEREAS, the CITY has applied for and has been awarded funds in the amount of ONE
MILLION THIRTY SEVEN THOUSAND SIX HUNDRED AND NINETY SEVEN NO /100 DOLLARS
($1,037,697) from the United States Department of Housing and Urban Development (HUD) as
its share of the Neighborhood Stabilization Program (NSP) Three under the Wall Street Reform
and Consumer Protection Act of 2010 (Section 1497 of Public Law 111 -203), supplementing the
original Neighborhood Stabilization Program 1 under the Housing and Economic Recovery Act
of 2008 Public Law 110 -289 as amended, which is referred to herein as "NSP3," for the purpose
of remediating the high incidence of abandoned and foreclosed homes in identified
neighborhoods within the City of Sanford; and
WHEREAS, The DEVELOPER is duly authorized to conduct business in the State of Florida
and has demonstrated its experience and active involvement in the acquisition, construction,
rehabilitation, of affordable, single family housing for sale or rental to lower income households
and was selected by the City pursuant to a competitive selection process; and
WHEREAS, The CITY and the DEVELOPER wish to collaborate in the location, acquisition,
rehabilitation and reseal of a minimum of four (4) single family homes having at least two (2)
bedrooms in NSP3 targeted neighborhoods within City of Sanford as more fully set forth herein
and in the attached Exhibits to this Agreement; and
WHEREAS, the CITY wishes to engage the DEVELOPER to assist the CITY in using a
portion of the NSP3 award in accordance with applicable notices, regulations and guidance
from HUD;
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HUD Neighborhood Stabilization Program Three
Acquisition, Rehabilitation, and Resale of Single- Family Homes Developers Agreement
Ii'
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NOW, THEREFORE, based upon the promises and the comments and agreements set
forth herein, and other goods and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, it is agreed between the parties hereto that;
I. SCOPE OF SERVICE
DEVELOPER shall carry out NSP activities in a manner satisfactory to the CITY and consistent
with all standards required as a condition of providing these funds. Program activities shall
include the following uses and corresponding activities eligible under NSP:
A. DEVELOPER Responsibilities
1. DEVELOPER shall carry out the program in accordance with the
policies, procedures and other provisions of the Single - Family Development and
Sales Program Manual ( "Single- Family Program Manual ") provided to DEVELOPER by
CITY, and incorporated herein by reference. DEVELOPER hereby agrees to accept
and follow any written amendments to the Program Manual by CITY that are
made as a direct result of additional guidance or regulations provided by HUD,
as well as any written amendments that are mutually agreed upon by CITY and
DEVELOPER.
2. Program activity may include the acquisition and development of
residential property that is foreclosed upon, abandoned, blighted or vacant in
accordance with the definitions and requirements of the NSP program, to the
extent that these activities are incorporated in this Section I and in Exhibit A
3. DEVELOPER shall provide the deliverables that are described in
Exhibit A and Detailed Budget, within the time periods and for the approximate
average budget amounts described therein. The total use of NSP funds provided
under this Agreement shall exceed the total amount of NSP funds indicated in
Section II (A) below.
4. DEVELOPER's expenditures for program delivery shall be limited
as follows, unless changes to the limits are agreed to in writing by the CITY and
DEVELOPER for a particular property:
a. Minimum number of homes to be acquired, developed
and operated under the Program: eight (8) units; (includes four (4) for -
sale units and four (4) rental units)
b. Eligible properties: DEVELOPER shall acquire only
properties in designated NSP target areas that are eligible under NSP for
rehabilitation or redevelopment as affordable residential properties.
Properties acquired must be abandoned or foreclosed upon, blighted,
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HUD Neighborhood Stabilization Program Three
Acquisition, Rehabilitation, and Resale of Single - Family Homes Developers Agreement
vacant lots, or vacant residential structures, as defined in the NSP
program guidelines. Residential structures that are not blighted shall be
rehabilitated. A new home may be reconstructed on a vacant lot acquired
or a vacant lot resulting from the acquisition and demolition of a building.
C. Designated target areas: DEVELOPER shall carry out this
activity only in the following NSP target area census tracts: 0204.01 and
portion of 0203.02 and any other census tracts established through any
future amendment of the NSP3 Action Plan.
d. Funds to purchase and rehabilitate foreclosed and /or
abandoned homes to be developed for very low- income, low and
moderate income homebuyers:
e. Prior approval of acquisitions by CITY: DEVELOPER shall
not execute a purchase agreement for a property to be acquired and
developed or contribute a DEVELOPER -owned property to this program
without first obtaining written approval by CITY. To request this approval,
DEVELOPER must provide CITY with a property description; proof of
abandoned, foreclosed, or vacant status as applicable; preliminary plans
and specifications for rehabilitation or construction work; a preliminary
development cost; an estimate of sale price; and an estimate of net sales
proceeds including line item estimates of sales and marketing costs,
closing costs and financing to be provided to the buyer. The preliminary
cost estimate will be provided in a form similar to the development cost
estimates in Exhibit A herein. CITY will base its approval upon an
assessment of NSP compliance, financial feasibility, conformity to
expenditure limits described herein, and the potential marketability of
the property. In addition, properties must be located in NSP target areas
as described herein.
f. Approval and funding of demolition costs: Primary
structures on properties acquired or contributed may not be demolished
without the express approval of the CITY. Unless otherwise agreed to in
writing, DEVELOPER must fund the cost of demolition (if any) out of the
funding that is made available in this Agreement or from the
DEVELOPER'S own resources.
g. Average NSP expenditure per dwelling unit: The average
NSP expenditure per dwelling unit may not exceed $ 69,180
unless CITY gives written approval for an additional amount due to the
strategic value of a property for the NSP program or reasonably
unforeseen costs that were beyond the control of DEVELOPER. CITY
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HUD Neighborhood Stabilization Program Three
Acquisition, Rehabilitation, and Resale of Single - Family Homes Developers Agreement
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encourages DEVELOPER to develop additional homes at a lower average
NSP cost if it is feasible.
h. DEVELOPER fee allowed per dwelling unit: The allowed
DEVELOPER fee is $8,950. Of this amount, $ 2,983 will be payable
upon acquisition of an NSP qualified property, $ 2,983 payable upon
final completion of rehabilitation /construction work, and $ 2,983
payable upon sale. DEVELOPER is prohibited from earning other fee or
profit from sale of an NSP- assisted dwelling unit, other than the general
contractor fee, and sales fee, described below.]
i. General contractor fee allowed: If DEVELOPER is acting as
general contractor and thus hiring and managing subcontractors,
DEVELOPER may charge an additional fee in the form of a 10% mark -up of
subcontractor costs subject to the availability of funding in the budget.
DEVELOPER'S reimbursement requests for construction costs may include
a 10% mark -up of all valid, documented costs of subcontractors who have
performed construction work. However, such mark -up shall not be
applied to non - construction costs such as taxes, insurance, security,
general requirement, or working capital costs. No such fees will be paid
to DEVELOPER for any NSP property that is rehabilitated or built by a
third -party general contractor. All general contractors performing work
on NSP- assisted projects must be properly licensed.
j. Allowed sales fee or commission and marketing costs:
DEVELOPER shall pay no more than 6% of the sale price as a commission
to a licensed third -party real estate broker or may earn an additional fee
in the same amount if DEVELOPER sells the home without a broker's
assistance.
k. . Acquisition, rehabilitation /construction and soft costs
described in Exhibit A are not subject to per -home cost limits on a line -
item basis, but must be reasonable and ordinary costs of development
and, in the aggregate, must conform to the per -home cost limits and
average costs described elsewhere in this Section I(A)(4).
1. Accounting for expenditures: DEVELOPER shall account for
total NSP expenditures per home by means of assigning an accounting
code for NSP- funded or reimbursed expenses for each property and
another accounting code, if applicable, for non -NSP funded expenditures
(if any). At the time of the sale of an NSP- assisted home, DEVELOPER
shall provide CITY with a complete accounting of NSP expenditures for
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HUD Neighborhood Stabilization Program Three
Acquisition, Rehabilitation, and Resale of Single- Family Homes Developers Agreement
that home and non -NSP expenditures, if any. The separate accounting of
NSP and other funds used is required for establishing the maximum
allowed sale price and shall provide necessary financial data on NSP -
funded expenditures in the event of a HUD audit of program activities.
M. Maximum sale price: The sale price shall not exceed the
after - construction market value of the home or the total amount of NSP
and non -NSP expenditures, whichever is less. The market value of a home
and when sale price is set shall be determined in accordance with the
provisions in the Program Manual.
n. Establishment of a lien in favor of CITY: Upon sale of an
NSP- funded home, DEVELOPER shall cause the homebuyer(s) to execute
a promissory note and mortgage in favor of CITY for the combined
amount of the mortgage assistance and down payment assistance as
defined herein. The note and mortgage shall be prepared by DEVELOPER
using forms provided by CITY. All documents are subject to City approval
prior to their being executed by the homebuyer(s) and recorded at the
expense of the homebuyer.
o. Repayment of net proceeds of sale to CITY: Upon sale of
an NSP- funded home, DEVELOPER shall return the net proceeds of sale to
the CITY by means of a check issued at closing by the closing agent. Net
proceeds of sale are defined as follows:
i. The sale price of the home;
ii. (Minus) the amount of any mortgage assistance and
down payment assistance provided to homebuyer, as defined
herein and described on the settlement statement;
iii. (Minus) DEVELOPER costs of sale as documented by the
settlement statement including, but not limited to, real estate
broker fees and seller -paid closing costs;
iv. (Plus) any reimbursements to DEVELOPER of costs
previously paid or reimbursed with NSP funds, such as pro -rated
taxes and assessments.
5. NSP- assisted homes sold only to income - qualified households ( homebuyers) in
the categories described in the program manual in at least the minimum numbers of
households described.
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HUD Neighborhood Stabilization Program Three
Acquisition, Rehabilitation, and Resale of Single - Family Homes Developers Agreement
B. CITY Responsibilities
CITY is responsible for the following tasks and deliverables.
1. Approving after full evaluation and analysis, each property purchase as
described herein and in the Single Family Program Manual.
2. Completing Tier 1 environmental assessments and providing Tier 1
clearances for all NSP target areas, as well as completing and approving site - specific
environmental reviews.
3. Providing pre - purchase counseling and homebuyer education to
prospective homebuyers in DEVELOPER'S home sales program as described in the
program manual, or contracting with one or more agencies that are qualified to provide
this education.
4. Managing all draws of NSP funds from HUD and paying valid and properly
documented draw requests from DEVELOPER.
5. Reporting to HUD via the Disaster Recovery Government Reporting
(DRGR) system, using, in part, data provided by DEVELOPER.
6. Monitoring all program activities of DEVELOPER to assure compliance
with the terms of this Agreement, including all NSP requirements.
7. Processing requests for disbursements of NSP funds including but not
limited to, necessary construction inspections, in a timely manner CITY will clearly and
promptly describe any deficiencies identified by CITY that prevent a disbursement or
portion of a disbursement from being approved. Upon the request of DEVELOPER, CITY
will promptly itemize and describe such deficiencies in writing.
8. Ensuring that information required by the Recovery Act is reported in the
Disaster Recovery Grant Reporting (DRGR) system or on www.FederalReporting.gov in a
timely manner. CITY will comply with the NSP performance reporting requirements and
with any additional reporting requirements announced by HUD at any time during the
duration of this Agreement.
C. Income Eligibility Requirements
In accordance with section 2301(f)(3)(A) of the Housing and Economic Recovery
Act of 2008 (HERA), Public Law 110 -329, the DEVELOPER shall use all NSP funds to assist
individuals and families whose incomes do not exceed 120 percent of area median
income, unless otherwise required by the CITY. The CITY will ensure that 25 percent of
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HUD Neighborhood Stabilization Program Three
Acquisition, Rehabilitation, and Resale of Single - Family Homes Developers Agreement
the total grant is used for the purchase and redevelopment of abandoned or foreclosed
upon homes or residential properties to house individuals and families whose incomes
do not exceed 50 percent of area median income, as required by HERA. In some cases,
the DEVELOPER will use NSP funding for individuals and families at or below 50 percent
of area median income if required by provisions elsewhere in this Agreement.
D. DEVELOPER Staffing
The names and roles of DEVELOPER'S key personnel (staff or contractors)
executing the project is as follows and shall not be changed unless approved, in advance
and in writing, by the City:
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Chief Executive:_�k �ki
NSP Project Manager:
Construction Manager: -U(" S M
Person in charge of marketing:
Property manager:
Housing Counselor:
Financial staff person responsible for approving submission of NSP payment requests:
Any change in the key personnel assigned or their general responsibilities under
this project are subject to the prior approval of the CITY.
E. Performance Monitoring
The CITY will monitor the performance of the DEVELOPER based on goals and
performance standards as stated above along with all other applicable Federal, State
and local laws, regulations and policies governing the funds provided under this
Agreement. Substandard performance, as determined by the CITY, will constitute
noncompliance with this Agreement. If corrective action is not taken by the DEVELOPER
within a reasonable period of time after being notified by the CITY and as determined by
the City, contract suspension or termination procedures may be initiated. DEVELOPER
agrees to provide HUD, the HUD Office of Inspector General, the General Accounting
Office and any person or entity designated by the CITY, access to all records related to
performance of activities in this Agreement.
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HUD Neighborhood Stabilization Program Three
Acquisition, Rehabilitation, and Resale of Single - Family Homes Developers Agreement
F. Progress Reports and Other Reports
DEVELOPER hereby agrees to provide monthly progress reports and other reports
required by CITY on forms to be provided by CITY. Failure to adequately complete a
progress report shall be a fundamental breach of the Agreement.
II. TIME OF PERFORMANCE
A. Start and Completion Dates
Services of the DEVELOPER shall start on the day of the execution of the subject
Agreement and end on the 31st day of December 2013 with all NSP funds
allocated having been expended and houses sold by that date, unless CITY at its sole
discretion approvals a later completion date.
The term of this Agreement and the provisions herein shall be subject to
extension by the City to cover any additional time period during which the DEVELOPER is
responsible for NSP reporting or compliance measures or remains in control of NSP
funds or other NSP assets, such as program income.
B. NSP Funds Obligation Deadline
The DEVELOPER recognizes and understands that by entering into this
Agreement, the CITY wishes to further its provision of affordable rental housing to
income qualified renters in a timely manner. The DEVELOPER also recognizes and
understands that the DEVELOPER's performance as established under this Agreement is
critical to the CITY's efforts in the provision of affordable housing, compliance with NSP3
requirements, and requirements for the expenditure of NSP3 funds. The DEVELOPER
agrees that time is of the essence in regard to the DEVELOPER's completion of the
Project and the timely expenditure of Grant funds.
In recognition of the above, the DEVELOPER shall implement the Project as provided herein
such that the DEVELOPER shall have drawn and appropriately expended no less than the
following:
$ 276,720.00 (50 %) of the Grant by February 15 2013 and
$ 553,440.00 (100 %) of the Grant by December 31, 2013
III. BUDGET
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HUD Neighborhood Stabilization Program Three
Acquisition, Rehabilitation, and Resale of Single - Family Homes Developers Agreement
A. Program Budget
The total amount of NSP funding allocated to DEVELOPER is $ 553,440.00. This
amount represents an allocation of the CITY's total NSP funding contingent upon
DEVELOPER's performance.
B. Additional Budget Details
A detailed project budget and cash flow projections are included in Exhibit A.
C. Recapture and Reallocation of DEVELOPER'S Allocation of NSP Funds
If DEVELOPER fails to expend NSP funds as required with regard to the goals and
delivery schedule in Exhibit A, CITY at its sole discretion may recapture a portion or all of
the DEVELOPER's total NSP funding allocation. The portion recaptured will be equal to
CITY's estimate of the amount of NSP funds that would remain unspent by the spending
deadlines described herein, based on DEVELOPER'S activities to date and capacity to
complete the work.
In addition, the amount of DEVELOPER's NSP funding allocation that is not
obligated or expended by the obligation deadline in Section II.B. herein will be
recaptured immediately unless CITY grants a brief extension of the deadline in writing
based on extenuating circumstances and compelling evidence that obligations will be
completed during the extended period all as determined by the CITY.
IV. PAYMENT
It is expressly agreed and understood that the total amount of NSP funds to be paid by the CITY
to the DEVELOPER under this Agreement shall not exceed the amount described in Section III.A.
herein plus additional amounts allocated, if any. Requests for the payment of eligible expenses
shall be associated with the budget line items in Exhibit A and in accordance with performance.
V. NOTICES
Notices required by this Agreement shall be in writing and delivered via U.S. mail (postage
prepaid), commercial courier, personal delivery, or sent by facsimile or other electronic means.
Any notice sent as aforesaid shall be effective on the date of transmittal. All notices and other
written communications under this Agreement shall be addressed to the individuals in the
capacities indicated below, unless otherwise modified by subsequent written notice.
Communication and details concerning this Agreement shall be directed to the following
representatives:
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HUD Neighborhood Stabilization Program Three
Acquisition, Rehabilitation, and Resale of Single - Family Homes Developers Agreement
A ILU m, '� 'Se
DEVELOPER
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Name & Title
CITY
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[Address]
L_C� t d , L .321 t1
[CITY, State, ZIP]
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[Telephone]
[Fax Number]
Name & Title
DEVELOPER
[Address]
[CITY, State, ZIP]
A�_. _1`z
[Telephone]
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[Fax Number]
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[Email Address] [Email Address]
VI. ENTIRE AGREEMENT
This agreement between the CITY and the DEVELOPER for the use of funds eligible for receipt
supersedes all prior or contemporaneous communications and proposals, whether electronic,
oral, or written between the CITY and the DEVELOPER with respect to this Agreement. By way
of signing this agreement, the DEVELOPER is bound to perform the agreements within this
agreement or any HUD approved amendment thereof. Any amendment to this Agreement
must receive prior approval by HUD.
Additional requirements associated with this Agreement are described in Exhibit B.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written
above.
101
HUD Neighborhood Stabilization Program Three
Acquisition, Rehabilitation, and Resale of Single - Family Homes Developers Agreement
Attest: City of Sanford, Florida
Qz�_t� - 4944�2� By:
4 0 anet Dougherty
City Clerk
A
lity:
i Liam L. Colbert, Esquire
City Attorney 4 r , i , l L
Signed, sealed and delivered in the presence of:
Attest -
Date:
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Prero nt`� �
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ill
HUD Neighborhood Stabilization Program Three
Acquisition, Rehabilitation, and Resale of Single - Family Homes Developers Agreement
Nothing contained in this Agreement is intended to, or shall be construed in any
manner, as creating or establishing the relationship of employer /employee or a
partnership between the parties. The DEVELOPER shall at all times remain an
"independent contractor" with respect to the services to be performed under this
Agreement. The CITY shall be exempt from payment of all Unemployment
Compensation, FICA, retirement, life and /or medical insurance and Workers'
Compensation Insurance, as the DEVELOPER is an independent contractor.
Miller Construction Services LLC
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HUD Neighborhood Stabilization Program Three
Acquisition, Rehabilitation, and Resale of Single - Family Homes Developers Agreement
C. Workers' Compensation
The DEVELOPER shall provide Workers' Compensation Insurance coverage for all
of its employees involved in the performance of this Agreement.
D. Insurance & Bonding
1. In General The DEVELOPER, at its sole expense, shall purchase and maintain
in full force and effect during the term of this Agreement and any renewals thereafter,
policies of insurance as provided in this section naming CITY as co- insured on all such
policies. The dollar value of the bond shall be equal to the goods services and
rehabilitation cost on each acquired property. DEVELOPER shall furnish to CITY binders
or policies showing the insurance in force as the time of commencement of the present
term. The bond shall be issued by a CITY approved surety company or companies in a
form acceptable to CITY.
2. Liability Insurance DEVELOPER shall purchase and maintain in full force
general liability insurance in an amount of not less than $1,000,000.00 per occurrence
for injuries or death to persons and $100,000.00 per occurrence for damage to
property. This insurance shall be written with an acceptable company authorized and
licensed to do business in the State of Florida and shall be written in a form acceptable
to CITY. Said insurance shall be issued prior to beginning any operation and shall be
kept in effect until all operations have been successfully terminated as determined by
the CITY. Copies or the originals as the case may be, shall be furnished to CITY and shall
be approved by CITY before DEVELOPER begins performance under this Agreement.
DEVELOPER shall designate CITY as an additional insured on all such policies and such
policies shall provide for thirty (30) days written notice of cancellation to the CITY.
Further, DEVELOPER shall provide CITY with additional insured endorsement page from
each policy in a form acceptable to CITY. CITY reserves the right to approve or reject any
deductible amounts in the required coverage, DEVELOPER shall provide at least ten (10)
days prior notice to the CITY before any termination or reduction in coverage. Liability
insurance may be obtained through a separate policy or through the required policies as
approved by the CITY.
3. Property /Casualty and Builder's Risk Insurance Prior to taking title to any
NSP- assisted property, DEVELOPER will obtain a property and casualty or builder's risk
insurance policy that insures the property for losses up to the amount of estimated
replacement costs, which may not be less than the estimated amount of investment in
the property as described in the Project Budget. If the Project Budget is increased, the
amount of coverage must be increased accordingly. If DEVELOPER cannot obtain
insurance coverage in the total amount of investment in the property after making best
efforts, CITY at its sole discretion may give written approval of a lesser amount of
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HUD Neighborhood Stabilization Program Three
Acquisition, Rehabilitation, and Resale of Single - Family Homes Developers Agreement
coverage. DEVELOPER shall designate CITY an additional insured on all such policies and
such policies shall provide for thirty (30) days written notice of cancellation to CITY.
Further, DEVELOPER shall provide CITY with additional insured endorsement page from
each policy in a form acceptable to CITY. CITY reserves the right to approve or reject any
deductible amounts in the required coverage, DEVELOPER shall provide at least ten (10)
days prior notice to the CITY before any termination or reduction in coverage.
DEVELOPER alone shall be responsible for investigation and payment of claims not
covered by insurance. CITY shall not in any way be responsible for payment of any
claims determined to be DEVELOPER's responsibility under this Agreement, but may
investigate such matters as it deems appropriate.
E. Suspension or Termination
In accordance with 24 CFR 85.43 or 84.62, the CITY may suspend or terminate
this Agreement if the DEVELOPER materially fails to comply with any terms of this
Agreement, which include, but are not limited to, the following:
1. Failure to comply with any of the statutes, regulations or
provisions referred to herein, or such statutes, regulations, executive orders, and
HUD policies or directives as may become applicable at any time;
2. Failure, for any reason, of the DEVELOPER to fulfill in a timely and
proper manner its obligations under this Agreement;
3. Ineffective or improper use of funds provided under this
Agreement; or
4. Submission by the DEVELOPER to the CITY reports that are
incorrect or incomplete in any material respect or are designed to mislead the
CITY.
This Agreement may also be terminated for convenience by mutual agreement
between the CITY and the DEVELOPER, in whole or in part, by setting forth the reasons
for such termination, the effective date and, in the case of partial termination, the
portion to be terminated. However, if in the case of a partial termination, the CITY
determines that the remaining portion of the award will not accomplish the purpose for
which the award was made, the CITY may terminate the award in its entirety. Such a
termination shall only be carried out with the explicit written approval from HUD.
F. Dispute Resolution
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HUD Neighborhood Stabilization Program Three
Acquisition, Rehabilitation, and Resale of Single - Family Homes Developers Agreement
(a) In the event of a dispute related to any performance or payment obligation
arising under this Agreement, the parties agree to exhaust any alternative
dispute resolution procedures reasonably imposed by the CITY prior to filing
suit or otherwise pursuing legal remedies with the parties equally bearing the
cost thereof.
(b) The DEVELOPER agrees that it will file no suit or otherwise pursue legal
remedies based on facts or evidentiary materials that were not presented for
consideration to the CITY in alternative dispute resolution procedures or
which the DEVELOPER had knowledge and failed to present during the CITY
procedures.
(c) In the event that CITY procedures are exhausted and a suit is filed or legal
remedies are otherwise pursued, the parties shall exercise best efforts to
resolve disputes through voluntary mediation. Mediator selection and the
procedures to be employed in voluntary mediation shall be mutually
acceptable to the parties. Costs of voluntary mediation shall be shared
equally among the parties.
(d) Timely payment for non - construction services. —The time at which payment
is due for a purchase other than construction services by the City shall be
calculated from:
(1) The date on which a proper invoice is received by the CITY after
approval by the governing body, if required; or
(2) If a proper invoice is not received by the local governmental entity,
the date:
(a) On which delivery of personal property is accepted by the
local governmental entity;
(b) On which services are completed;
(c) On which the rental period begins; or
(d) On which the local governmental entity and vendor agree in
a contract that provides dates relative to payment periods;
(e) Timely payment for purchases of construction services. —
(1) The due date for payment for the purchase of construction services
by the CITY is determined as follows:
(a) If an agent must approve the payment request or invoice
before the payment request or invoice is submitted to the local
governmental entity, payment is due (25) business days after the
date on which the payment request or invoice is stamped as
received. The DEVELOPER may send the local government an
overdue notice. If the payment request or invoice is not rejected
within (4) business days after delivery of the overdue notice, the
payment request or invoice shall be deemed accepted, except for
any portion of the payment request or invoice that is fraudulent
or misleading.
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HUD Neighborhood Stabilization Program Three
Acquisition, Rehabilitation, and Resale of Single - Family Homes Developers Agreement
(b) If an agent need not approve the payment request or
invoice submitted by the contractor, payment is due 20 business
days after the date on which the payment request or invoice is
stamped as received.
(f) Procedures for calculation of payment due dates. —
(1) Each local governmental entity shall establish procedures whereby
each payment request or invoice received by the local governmental
entity is marked as received on the date on which it is delivered to an
agent or employee of the local governmental entity or of a facility or
office of the local governmental entity.
(2) The payment due date for a local governmental entity for the
purchase of goods or services other than construction services is (45)
days after the date.
(3) If the terms under which a purchase is made allow for partial
deliveries and a payment request or proper invoice is submitted for a
partial delivery, the time for payment for the partial delivery shall be
calculated from the time of the partial delivery.
(4) All payments, other than payments for construction services, due
from a local governmental entity and not made within the time specified
by this section bear interest from 30 days after the due date at the rate
of 1 percent per month on the unpaid balance. The vendor must invoice
the local governmental entity for any interest accrued in order to receive
the interest payment. Any overdue period of less than 1 month is
considered as 1 month in computing interest. Unpaid interest is
compounded monthly. For the purposes of this section, the term "1
month" means a period beginning on any day of one month and ending
on the same day of the following month.
(g) The venue for any lawsuit shall be the Circuit Court for the 18 Judicial
Circuit in and for Seminole County as to State law causes of action and the
United States District Court, Middle District of Florida, Orlando Division as to
Federal causes of action.
II. ADMINISTRATIVE REQUIREMENTS
A. Financial Management
1. Accounting Standards
The DEVELOPER agrees to comply with 24 CFR 85.20 -26 for other
governmental entities and agrees to adhere to the accounting principles and
procedures required therein, use adequate internal controls, and maintain
necessary source documentation for all costs incurred.
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HUD Neighborhood Stabilization Program Three
Acquisition, Rehabilitation, and Resale of Single - Family Homes Developers Agreement
2. Cost Principles
The DEVELOPER shall administer its program in conformance with OMB
Circulars A -87, "Cost Principles for State, Local and Indian Tribal Governments,"
A -122, "Cost Principles for Non - Profit Organizations," or A -21, "Cost Principles
for Educational Institutions," as applicable. These principles shall be applied for
all costs incurred whether charged on a direct or indirect basis.
B. Documentation and Record Keeping
1. Client Data
The DEVELOPER shall maintain client data demonstrating client eligibility
for services provided. Such data shall include, but not be limited to, client name,
address, income level or other basis for determining eligibility, and description of
service or benefit provided. Such information shall be made available upon
request to CITY monitors or their designees for review.
2. Records to be Maintained
The DEVELOPER shall maintain all records required by Federal regulations
specified in 24 CFR 570.506. Such records shall include but not be limited to:
a. Records providing a full description of each activity undertaken;
b. Records demonstrating that each activity undertaken benefits low -,
moderate -, or middle- income persons.
c. Records required to determine the eligibility of activities and the
eligibility of all properties assisted;
d. Records required to document the purchase and sale amounts of each
property, discounts, and the sources and uses of funds for each activity;
e. Records documenting compliance with the fair housing and equal
opportunity requirements of the NSP program, including but not limited to the
racial, ethnic, and gender characteristics of persons who are applicants for,
participants in, or beneficiaries of the program;
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f. Records documenting efforts to ensure that the initial successor in
interest in a foreclosed upon dwelling or residential real property has complied
with the tenant protection requirements.
and
g. Financial records as required by 24 CFR 570.502, and 24 CFR 84.212 ;
h. Other records necessary to document compliance with Subpart K of 24
CFR Part 570.
3. Retention
The DEVELOPER shall retain all financial records, supporting documents,
statistical records, and all other records pertinent to the Agreement for a period
of five (5) years. The retention period begins on the date that the CITY submits
its first quarterly performance report to HUD via DRGR. Notwithstanding the
above, if litigation, claims, audits, negotiations or other actions that involve any
of the records cited has commenced before the expiration of the five -year
period, then such records must be retained until completion of the actions and
resolution of all issues, or the expiration of the five -year period, whichever
occurs later.
4. Disclosure
The DEVELOPER understands that client information collected under this
Agreement is private and the use or disclosure of such information, when not
directly connected with the administration of the CITY's or DEVELOPER's
responsibilities with respect to services provided under this Agreement, is
prohibited by law unless written consent is obtained from such person receiving
service and, in the case of a minor, that of a responsible parent /guardian unless
disclosure is required by controlling law.
5. Close -outs
The DEVELOPER'S obligation to the CITY shall not end until HUD
completes all close -out requirements for the NSP grant. Activities during this
close -out period shall include, but are not limited to: making final payments;
disposing of program assets (including, but not limited to, the return of all
unused materials, equipment, unspent cash advances, program income
balances, and accounts receivable to the CITY) and determining the
custodianship of records. However, the terms of this Agreement shall remain in
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effect during any period that the DEVELOPER has control over NSP funds,
including program income.
6. Audits & Inspections
All DEVELOPER records with respect to any matters covered by this
Agreement shall be made available to the CITY, HUD, and the Comptroller
General of the United States or any of their authorized representatives, at any
time during normal business hours, as often as deemed necessary, to audit,
examine, and make excerpts or transcripts of all relevant data. Any deficiencies
noted in audit reports must be fully cleared by the DEVELOPER within thirty (30)
days after receipt by the DEVELOPER. Failure of the DEVELOPER to comply with
the above audit requirements will constitute a violation of this contract and may
result in the withholding of future payments or termination of this agreement.
The DEVELOPER hereby agrees to have an annual agency audit conducted in
accordance with current CITY policy concerning DEVELOPER audits and OMB
Circular A -133.
C. Reporting and Payment Procedures
1. Indirect Costs
Direct and indirect costs of staff shall not be charged by DEVELOPER.
DEVELOPER will be reimbursed for internal costs through a DEVELOPER fee or any
similar fee as specified in this Agreement.
2. Payment Procedures
The CITY will pay to the DEVELOPER funds available under this Agreement
based upon information submitted by the DEVELOPER and consistent with any
approved budget and CITY policy concerning payments. Payments will be made
for eligible NSP related expenses actually incurred by the DEVELOPER, and will
not exceed actual cash requirements. Payments will be adjusted by the CITY in
accordance with advance fund and program income balances available in
DEVELOPER accounts. In addition, the CITY reserves the right to liquidate funds
available under this Agreement for costs incurred by the CITY on behalf of the
DEVELOPER.
HUD, through the Disaster Recovery Grant Reporting (DRGR) system,
generally provides access to grant funds within three (3) working days of an
electronically submitted request by the CITY. To ensure expeditious
implementation of activities, CITY agrees to draw funds from the line of credit
and make payment to the DEVELOPER within 10 working days of receipt of the
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DEVELOPER'S complete and properly submitted requests for payment for
activities under this agreement, if feasible. DEVELOPER agrees to submit
requests for payment in a timely manner in the form and at the times directed
by the CITY in its sole discretion.
3. Progress Reports
The DEVELOPER shall submit regular Progress Reports to the CITY in the
form, content and frequency as required by the CITY.
D. Procurement
1. Program Income
The DEVELOPER shall report no less frequently than monthly all program
income generated by activities carried out with NSP funds made available under
this Agreement. The DEVELOPER may use such income during the contract
period for activities permitted under this contract and shall reduce requests for
additional funds by the amount of any such program income balances on hand.
All unexpended program income shall be returned to the CITY at the end of the
contract period or as otherwise specified by the CITY. Any interest earned on
cash advances from the U.S. Treasury and from funds held in a revolving fund
account is not program income and shall be remitted promptly to the CITY.
2. Compliance
The DEVELOPER shall comply with all CITY policies concerning the
purchase of equipment and shall maintain inventory records of all non -
expendable personal property as defined by such policy as may be procured with
funds provided herein. All program assets (unexpended program income,
property, equipment, etc.) not otherwise disposed of in the closeout agreement
shall revert to the CITY upon termination of this Agreement.
3. OMB Standards
Unless otherwise specified within this agreement, the DEVELOPER shall
procure all materials, property, or services in accordance with the requirements
of 24 CFR 84.40.
4. Travel
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The DEVELOPER shall obtain written approval from the CITY for any costs for
travel outside the area served with funds provided under this Agreement.
E. Use of and Reversion of Assets
The use and disposition of real property and equipment under this Agreement
shall be in compliance with the requirements of 24 CFR Part 84 [or Part 85] and 24 CFR
570.503, 570.504, and 570.505, as applicable, which include but are not limited to the
following:
1. The DEVELOPER shall transfer to the CITY any NSP funds on hand
and any accounts receivable attributable to the use of funds under this
Agreement at the time of expiration, cancellation, or termination, unless
otherwise specified in the HUD closeout agreement with the CITY.
2. Real property under the DEVELOPER's control that was acquired
or improved, in whole or in part, with funds under this Agreement shall be used
in accordance with the NSP application for the period consistent with the land -
banking and continued affordability requirements. If the DEVELOPER fails to use
NSP- assisted real property in a manner that meets NSP land- banking,
affordability and benefit requirements within and for the prescribed period of
time, the DEVELOPER shall comply with the applicable sections under 24 CFR
570.503, 570.504, and 570.505.
3. In all cases in which equipment acquired, in whole or in part, with
funds under this Agreement, is sold, the proceeds shall be program income
(prorated to reflect the extent to which funds received under this Agreement
were used to acquire the equipment). Equipment not needed by the DEVELOPER
for activities under this Agreement shall be (a) transferred to the CITY for the
NSP program or (b) retained after compensating the CITY an amount equal to the
current fair market value of the equipment less the percentage of non -NSP funds
used to acquire the equipment.
III. RELOCATION, REAL PROPERTY ACQUISITION AND ONE - FOR -ONE HOUSING
REPLACEMENT
The DEVELOPER agrees to comply with (a) the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970, as amended (URA), and implementing regulations at 49 CFR
Part 24; 24 CFR Part 42 — Displacement, Relocation Assistance and Real Property Acquisition for
HUD and HUD Assisted Programs; and 24 CFR 570.606 — Displacement, relocation acquisition,
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and replacement of housing. The DEVELOPER shall provide appropriate relocation assistance
(URA or section 104(d)) to eligible displaced persons as defined by applicable HUD and /or URA
regulations that are displaced as a direct result of acquisition, rehabilitation, demolition or
conversion for an NSP- assisted project. The DEVELOPER also shall to comply with applicable
CITY or local ordinances, resolutions and policies as well as State law concerning the
displacement of persons.
The DEVELOPER shall use NSP funds to demolish major structures or convert units from non-
residential uses only with the prior written permission of CITY. Permission for demolition of
minor structures such as porches, sheds and garages shall be deemed to have been granted
when CITY approves the plans and specifications (which may also be called "work write - ups ")
for a particular property that DEVELOPER is assisting with NSP funds.
IV. TENANT PROTECTION REQUIREMENTS
The DEVELOPER shall to comply with the Recovery Act provisions concerning tenant protections
applicable to NSP acquisitions of foreclosed property. The DEVELOPER shall document its
efforts to ensure that the initial successor in interest (ISII) in a foreclosed upon dwelling or
residential real property (typically, the ISII in property acquired through foreclosure is the
lender or trustee for holders of obligations secured by mortgage liens) has provided bona fide
tenants with the notice and other protections outlined in the Recovery Act. The DEVELOPER
shall not use NSP funds to finance the acquisition of property from any ISII that failed to comply
with applicable requirements unless the DEVELOPER assumes the obligations of such ISII with
respect to bona fide tenants. If the DEVELOPER elects to assume such obligations, it may only
do so if the tenant is still occupying the property and will provide any tenant displaced as a
result of the NSP funded acquisition with the assistance outlined in 24 CFR 570.606. If the
DEVELOPER knows that the ISII did not comply with the NSP tenant protection requirements
and vacated the property contrary to the NSP requirements, NSP funds cannot and shall not be
used to acquire such properties.
V. PERSONNEL & PARTICIPANT CONDITIONS
A. Civil Rights
1. Compliance
The DEVELOPER shall comply with applicable state and local civil rights
ordinances and with Title VI of the Civil Rights Act of 1964 as amended, Title VIII
of the Civil Rights Act of 1968 as amended, section 104(b) and section 109 of
Title I of the Housing and Community Development Act of 1974 as amended (the
HCDA), section 504 of the Rehabilitation Act of 1973, the Americans with
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Disabilities Act of 1990, the Age Discrimination Act of 1975, Executive Order
11063, and Executive Order 11246 as amended or implemented by Executive
Orders 11375, 11478, 12107 and 12086.
2. Nondiscrimination
The DEVELOPER shall to comply with the non - discrimination in
employment and contracting opportunities laws, regulations, and executive
orders referenced in 24 CFR 570.607, as revised by Executive Order 13279. The
applicable non - discrimination provisions in section 109 of the HCDA are still
applicable.
3. Section 504
The DEVELOPER agrees to comply with all Federal regulations issued
pursuant to section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), which
prohibits discrimination against the individuals with disabilities or handicaps in
any Federally assisted program. The CITY shall provide the DEVELOPER with any
guidelines necessary for compliance with that portion of the regulations in force
during the term of this Agreement.
B. Affirmative Action
1. Approved Plan
The DEVELOPER shall commit and is committed to carry out, pursuant to
the CITY's specifications, an Affirmative Action Program in keeping with the
principles as provided in President's Executive Order 11246 of September 24,
1966. The CITY shall provide Affirmative Action guidelines to the DEVELOPER to
assist in the formulation of such program. The DEVELOPER shall submit a plan for
an Affirmative Action Program for approval prior to the award of funds.
2. Women- and Minority -Owned Businesses (W /MBE)
The DEVELOPER shall use its best efforts to afford small businesses,
minority business enterprises, and women's business enterprises the maximum
practicable opportunity to participate in the performance of this contract. As
used in this contract, the terms "small business" means a business that meets
the criteria set forth in section 3(a) of the Small Business Act, as amended (15
U.S.C. 632), and "minority and women's business enterprise" means a business
at least fifty -one (51) percent owned and controlled by minority group
developers or women. The DEVELOPER may rely on written representations by
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businesses regarding their status as minority and women -owned business
enterprises in lieu of an independent investigation.
3. Access to Records
The DEVELOPER shall furnish and cause each of its own developers or
subcontractors to furnish all information and reports required hereunder and
will permit access to its books, records and accounts by the CITY, HUD or its
agent, or other authorized Federal officials for purposes of investigation to
ascertain compliance with the rules, regulations and provisions stated herein.
4. Equal Employment Opportunity and Affirmative Action (EEO /AA)
Statement
The DEVELOPER shall, in all solicitations or advertisements for employees
placed by or on behalf of the DEVELOPER; state that it is an Equal Opportunity or
Affirmative Action employer.
5. Subcontract Provisions
The DEVELOPER shall include the provisions of the prior Section V A, Civil
Rights, and B, Affirmative Action, in every subcontract or purchase order,
specifically or by reference, so that such provisions will be binding upon each of
its own developers or subcontractors.
C. Employment Restrictions
1. Prohibited Activity
The DEVELOPER is prohibited from using funds provided herein or
personnel employed in the administration of the program for: political activities;
inherently religious activities; lobbying; political patronage; and nepotism
activities.
2. Labor Standards
The DEVELOPER shall comply with the requirements of the Secretary of
Labor in accordance with the Davis -Bacon Act, as amended, the provisions of
Contract Work Hours and Safety Standards Act (40 U.S.C. 327 et seq.) and all
other applicable Federal, state and local laws and regulations pertaining to labor
standards insofar as those acts apply to the performance of this Agreement. The
DEVELOPER agrees to comply with the Copeland Anti -Kick Back Act (18 U.S.C.
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874 et seq.) and its implementing regulations of the U.S. Department of Labor at
29 CFR Part 5. The DEVELOPER shall maintain documentation that demonstrates
compliance with hour and wage requirements of this part. Such documentation
shall be made available to the CITY for review upon request.
The DEVELOPER shall ensure that, except with respect to the
rehabilitation or construction of residential property containing less than eight
(8) units, all contractors engaged under contracts in excess of $2,000.00 for
construction, renovation or repair work financed in whole or in part with
assistance provided under this contract, shall comply with Federal requirements
adopted by the CITY pertaining to such contracts and with the applicable
requirements of the regulations of the Department of Labor, under 29 CFR Parts
1, 3, 5 and 7 governing the payment of wages and ratio of apprentices and
trainees to journey workers; provided that, if wage rates higher than those
required under the regulations are imposed by state or local law, nothing
hereunder is intended to relieve the DEVELOPER of its obligation, if any, to
require payment of the higher wage. The DEVELOPER shall cause or require to be
inserted in full, in all such contracts subject to such regulations, provisions
meeting the requirements of this paragraph.
3. "Section 3" Clause
a. Compliance
Compliance with the provisions of Section 3 of the Housing and
Urban Development Act of 1968, as amended, and as implemented by
the regulations set forth in 24 CFR 135, and all applicable rules and orders
issued hereunder prior to the execution of this contract, shall be a
condition of the Federal financial assistance provided under this contract
and binding upon the CITY, the DEVELOPER and any of the DEVELOPER's
subcontractors. Failure to fulfill these requirements shall subject the
DEVELOPER and any of the DEVELOPER's subcontractors, their successors
and assigns, to those sanctions specified by the Agreement through
which Federal assistance is provided. The DEVELOPER certifies and agrees
that no contractual or other disability exists that would prevent
compliance with these requirements.
The DEVELOPER shall comply with the Section 3 requirements and
to include the following language in all subcontracts executed under this
Agreement:
"The work to be performed under this Agreement is a
project assisted under a program providing direct Federal financial
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assistance from HUD and is subject to the requirements of Section
3 of the Housing and Urban Development Act of 1968, as
amended (12 U.S.C. 1701). Section 3 requires that to the greatest
extent feasible opportunities for training and employment be
given to low- and very low- income residents of the project area,
and that contracts for work in connection with the project be
awarded to business concerns that provide economic
opportunities for low- and very low- income persons residing in
the metropolitan area in which the project is located."
The DEVELOPER shall ensure that opportunities for training and
employment arising in connection with a housing rehabilitation (including
reduction and abatement of lead -based paint hazards), housing
construction, or other public construction project are given to low- and
very low- income persons residing within the metropolitan area in which
the NSP- funded project is located. Where feasible, priority shall be given
to low- and very low- income persons within the service area of the
project or the neighborhood in which the project is located, and to low -
and very low- income participants in other HUD programs; and award
contracts for work undertaken in connection with a housing
rehabilitation (including reduction and abatement of lead -based paint
hazards), housing construction, or other public construction project to
business concerns that provide economic opportunities for low- and very
low- income persons residing within the metropolitan area in which the
NSP- funded project is located. Where feasible, priority shall be given to
business concerns that provide economic opportunities to low- and very
low- income residents within the service area or the neighborhood in
which the project is located, and to low- and very low- income
participants in other HUD programs.
The DEVELOPER certifies and agrees that no contractual or other
legal incapacity exists that would prevent compliance with these
requirements.
b. Notifications
The DEVELOPER shall transmit to each labor organization or
representative of workers with which it has a collective bargaining
agreement or other contract or understanding, if any, a notice advising
said labor organization or worker's representative of its commitments
under this Section 3 clause and shall post copies of the notice in
conspicuous places available to employees and applicants for
employment or training.
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HUD Neighborhood Stabilization Program Three
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C. Subcontracts
The DEVELOPER shall include this Section 3 clause in every
subcontract and shall take appropriate action pursuant to the
subcontract upon a finding that the subcontractor is in violation of
regulations issued by the CITY'S agency. The DEVELOPER shall not
subcontract with any entity where it has notice or knowledge that the
latter has been found in violation of regulations under 24 CFR Part 135
and will not let any subcontract unless the entity has first provided it with
a preliminary statement of ability to comply with the requirements of
these regulations.
D. Conduct
1. Assignability
The DEVELOPER shall not assign or transfer any interest in this
Agreement without the prior written consent of the CITY thereto and HUD;
provided, however, that claims for money due or to become due to the
DEVELOPER from the CITY under this contract may be assigned to a bank, trust
company, or other financial institution without such approval. Notice of any such
assignment or transfer shall be furnished promptly to the CITY.
2. Subcontracts
a. Approvals
The DEVELOPER shall not enter into any subcontracts over
$100,000 with any agency or individual in the performance of this
contract without the written consent of the CITY prior to the execution of
such agreement.
b. Monitoring
The DEVELOPER shall monitor all subcontracted services on a
regular basis to assure contract compliance. Results of monitoring efforts
shall be summarized in written reports and supported with documented
evidence of follow -up actions taken to correct areas of noncompliance.
C. Content
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HUD Neighborhood Stabilization Program Three
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The DEVELOPER shall cause all of the provisions of this contract in
its entirety to be included in and made a part of any subcontract
executed in the performance of this Agreement.
d. Selection Process
The DEVELOPER shall undertake to ensure that all subcontracts let
in the performance of this Agreement shall be awarded on a fair and
open competition basis in accordance with applicable procurement
requirements. Executed copies of all subcontracts shall be forwarded to
the CITY along with documentation concerning the selection process.
3. Hatch Act
The DEVELOPER shall not use funds provided, nor personnel employed
under this Agreement, shall be in any way or to any extent engaged in the
conduct of political activities in violation of Chapter 15 of Title V of the United
States Code.
4. Conflict of Interest
The DEVELOPER agrees to abide by the provisions of 24 CFR 84.42 and
570.611 which include (but are not limited to) the following:
a. The DEVELOPER shall maintain a written code or standards
of conduct that shall govern the performance of its officers, employees or
agents engaged in the award and administration of contracts supported
by Federal funds.
b. No employee, officer or agent of the DEVELOPER shall
participate in the selection, or in the award, or administration of, a
contract supported by Federal funds if a conflict of interest, real or
apparent, would be involved.
C. No covered persons who exercise or have exercised any
functions or responsibilities with respect to NSP- assisted activities, or
who are in a position to participate in a decision - making process or gain
inside information with regard to such activities, may obtain a financial
interest in any contract, or have a financial interest in any contract,
subcontract, or agreement with respect to the NSP- assisted activity, or
with respect to the proceeds from the NSP- assisted activity, either for
themselves or those with whom they have business or immediate family
ties, during their tenure or for a period of one (1) year thereafter. For
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purposes of this paragraph, a "covered person" includes any person who
is an employee, agent, consultant, officer, or elected or appointed official
of the CITY, the DEVELOPER, or any designated public agency.
5. Lobbying
The DEVELOPER hereby certifies that:
a. No Federal appropriated funds have been paid or will be
paid, by or on behalf of it, 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 any Federal contract, grant,
loan, or cooperative agreement;
b. If any funds other than Federal appropriated funds have
been paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any agency, a member of Congress,
an officer or employee of Congress, or an employee of a member of
Congress in connection with this Federal contract, grant, loan, or
cooperative agreement, it will complete and submit Standard Form -LLL,
"Disclosure Form to Report Lobbying," in accordance with its instructions;
and
C. It shall require that the language of paragraph (d) of this
certification be included in the award documents for all subawards at all
tiers (including subcontracts, subgrants, and contracts under grants,
loans, and cooperative agreements) and that all developers shall certify
and disclose accordingly:
d. Lobbying Certification
This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or entering
into this transaction imposed by section 1352, title 31, U.S.C. Any person
who fails to file the required certification shall be subject to a civil penalty
of not less than $10,000 and not more than $100,000 for each such
failure.
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6. Copyright
If this contract results in any copyrightable material or inventions, HUD
reserves the right to royalty -free, non - exclusive and irrevocable license to
reproduce, publish or otherwise use and to authorize others to use, the work or
materials for governmental purposes.
7. Religious Activities
The DEVELOPER shall comply with 24 CFR 570.200(j) and shall not use to
support inherently religious activities.
VI. ENVIRONMENTAL CONDITIONS
A. Air and Water
The DEVELOPER shall comply with the following requirements insofar as they
apply to the performance of this Agreement:
1. Clean Air Act, 42 U.S.C., 7401, et seq.;
2. Federal Water Pollution Control Act, as amended, 33 U.S.C., 1251, et seq.,
as amended, 1318 relating to inspection, monitoring, entry, reports, and information, as
well as other requirements specified in said Section 114 and Section 308, and all
regulations and guidelines issued thereunder;
3. Environmental Protection Agency (EPA) regulations pursuant to 40 CFR
Part 50, as amended.
B. Flood Disaster Protection
In accordance with the requirements of the Flood Disaster Protection Act of
1973 (42 U.S.C. 4001), the DEVELOPER shall assure that for activities located in an area
identified by the Federal Emergency Management Agency (FEMA) as having special
flood hazards, flood insurance under the National Flood Insurance Program is obtained
and maintained as a condition of financial assistance for acquisition or construction
purposes (including rehabilitation).
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C. Lead -Based Paint
The DEVELOPER agrees that any construction or rehabilitation of residential
structures with assistance provided under this Agreement shall be subject to HUD Lead -
Based Paint Regulations at 24 CFR 570.487 or 24 CFR 570.608, and 24 CFR Part 35,
Subpart B. Such regulations pertain to all NSP- assisted housing and require that all
owners, prospective owners, and tenants of properties constructed prior to 1978 be
properly notified that such properties may include lead -based paint. Such notification
shall point out the hazards of lead -based paint and explain the symptoms, treatment
and precautions that should be taken when dealing with lead -based paint poisoning and
the advisability and availability of blood lead level screening for children under seven.
The notice should also point out that if lead -based paint is found on the property,
abatement measures may be undertaken. The regulations further require that,
depending on the amount of Federal funds applied to a property, paint testing, risk
assessment, treatment and /or abatement may be conducted. Documentation shall be
retained in the files for compliance to the above statement.
D. Historic Preservation
The DEVELOPER shall comply with the Historic Preservation requirements set
forth in the National Historic Preservation Act of 1966, as amended (16 U.S.C. 470) and
the procedures set forth in 36 CFR Part 800, Advisory Council on Historic Preservation
Procedures for Protection of Historic Properties, insofar as they apply to the
performance of this agreement.
In general, this requires concurrence from the State Historic Preservation Officer
for all rehabilitation and demolition of historic properties that are fifty years old or older
or that are included on a Federal, state, or local historic property list.
VII. ENVIRONMENTAL REVIEW
All NSP assistance is subject to the National Environmental Policy Act of 1969 and related
federal environmental authorities and regulations at 24 CFR part 50 or 58.
VIII. REHABILITATION STANDARDS
The DEVELOPER shall implement all NSP- assisted rehabilitation of an abandoned or foreclosed -
upon home or residential property in compliance with the rehabilitation standards in the
Consortium's NSP application and in accordance with applicable laws, codes, and other
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requirements relating to housing safety, quality, and habitability, in order to sell, rent, or
redevelop such homes and properties.
IX. TIMELINESS OF USE AND EXPENDITURE OF NSP FUNDS
The DEVELOPER shall ensure that NSP allocated funds are expended within a timely manner in
accordance with the schedule in this Agreement. Should the Consortium as a whole fail to
meet the requirement to expend its award prior to the deadline in its grant agreement with
HUD, HUD, on the first business day after that deadline, the DEVELOPER shall notify the CITY,
restrict the amount of unused funds in the CITY's line of credit, and begin the process of de-
obligating the unused amounts.
X. ELIGIBILITY AND ALLOWABLE COSTS
The DEVELOPER shall ensure and document that its NSP activities meet eligible use, allowable
cost, and eligible activity requirements of NSP.
XI. PURCHASE DISCOUNT
The DEVELOPER shall acquire property with NSP funds at a minimum discount of one percent
for each residential property. This requirement applies to all properties purchased with NSP
funds, and the discount must be taken from the current market appraised value.
XII. EMINENT DOMAIN
• The DEVELOPER shall not undertake any involuntary acquisition of property with NSP
funds without prior written consent of the Lead Applicant and written opinion of
counsel that such acquisition is lawful. See Housing and Economic Recovery Act of 2008 —
Public Law 110 - 289 -July 30, 2008 — Section 2303. "No State or Unit of general local government
may use any amounts received pursuant to section 2301 to fund any project that seeks to use
the power of eminent domain, unless eminent domain is employed only for a public use:
Provided, That for purposes of this section, public use shall not be construed to include
economic development that primarily benefits private entities."
X111. SEVERABILITY
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HUD Neighborhood Stabilization Program Three
Acquisition, Rehabilitation, and Resale of Single - Family Homes Developers Agreement
If any provision of this Agreement is held invalid, the remainder of the Agreement shall not be
affected thereby and all other parts of this Agreement shall nevertheless be in full force and
effect.
XIV. SECTION HEADINGS AND SUBHEADINGS
The section headings and subheadings contained in this Agreement are included for
convenience only and shall not limit or otherwise affect the terms of this Agreement.
I. WAIVER
The CITY's failure to act with respect to a breach by the DEVELOPER does not waive its right to
act with respect to subsequent or similar breaches. The failure of the CITY to exercise or
enforce any right or provision shall not constitute a waiver of such right or provision.
331
HUD Neighborhood Stabilization Program Three
Acquisition, Rehabilitation, and Resale of Single- Family Homes Developers Agreement