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CAPITALRISE, LLC.- 1230 PINE STREET, HERITAGE PINE DEVELOPMENT
CONTRACT between AUGUSTA,GEORGIA And CAPITALRISE LLC. in the amount of $119,860.00 USD One-Hundred and Nineteen Thousand Eight Hundred and Sixty Dollars for Fiscal Year 2018 Providing funding for LANEY WALKER/BETHLEHEM REVITALIZATION PROJECT "HERITAGE PINE DEVELOPMENT" 1230 Pine Street THIS AGREEMENT ("Contract"), is made and entered into as of the day of October 2018 ("the effective date")by and between Augusta, Georgia, a political subdivision of the State of Georgia (hereinafter referred to as "Augusta"), acting through the Housing and Community Development Department (hereinafter referred to as "AHCD") - with principal offices at 925 Laney Walker Blvd., 2°d Floor, Augusta, Georgia 30901, as party of the first part, and Capitalrise LLC., a developer, organized pursuant to the Laws of the State of Georgia, hereinafter called "CAPITALRISE" as party in the second part. WITNESSETH WHEREAS, Augusta is qualified by the U. S. Department of Housing and Urban Development (hereinafter called HUD) as a Participating Jurisdiction, and has received Laney Walker/Bethlehem Bond Financing for the purpose of providing and retaining affordable and market rate housing for eligible families; and WHEREAS, Augusta wishes to increase homeownership opportunities and preserve and increase the supply of affordable/market rate housing for eligible families; and WHEREAS, Augusta wishes to enter into a contractual Agreement with CAPITALRISE for the administration of eligible affordable and market rate housing development activities utilizing Laney Walker Bond Financing; and WHEREAS, this activity has been determined to be an eligible activity in accordance with 24 CFR 92.504(c)(13) and will meet one or more of the national objectives and criteria outlined in Title 24 Code of Federal Regulations,Part 92 of the Housing and Urban Development regulations; and WHEREAS, CAPITALRISE has been selected and approved through a solicitation process for development partners to assist in the redevelopment of Laney Walker and Bethlehem communities; and Augusta Housing&Community Development Department 1230 Pine Street Contract Page 1 WHEREAS, CAPITALRISE has agreed to provide services funded through this contract free from political activities,religious influences or requirements; and WHEREAS, CAPITALRISE has requested and Augusta has approved a total of $119,860.00 in funding to perform eligible activities as described in Article I; below: NOW, THEREFORE, the parties of this Agreement for the consideration set forth below, do here and now agree to the following terms and conditions: ARTICLE I. SCOPE OF SERVICES A. Scope of Services Project Description: CAPITALRISE agrees to utilize approved Laney Walker/Bethlehem Bond Financing funds to support project related costs associated with the Heritage Pine Project. This project is a mixed income housing effort which involves development and construction of new single family housing units along Pine Street. Under this Agreement: N4 Perform new construction services for one (1) single family detached homes identified as property number 1230 Pine Street. Perform all required construction management and project oversight; in accordance with all laws, ordinances,and regulations of Augusta; -41, Perform all functions required to ensure delivery of a final product meeting all requirements as set forth by said Agreement to include: • Materials list to include brand name and/or model number of materials as specified or agreed to adjustments to specifications including but not limited to: appliances, windows,HVAC, fixtures and First Quality lumber. CAPITALRISE is to provide a finish schedule with the specifications,brands and model numbers for all interior finishes 90 days from completion for agreement by AHCD.Actual material invoices may be requested to verify charges. B. Use of Funds: Laney Walker/Bethlehem Bond Financing funds shall be used by CAPITALRISE for the purposes and objectives as stated in Article I, Scope of Services, of this Agreement. The use of funding for any other purpose(s) is not permitted. The following summarizes the proposed uses of funds under this Agreement based on total material and labor cost of$188,000.00. Augusta Housing&Community Development Department 1230 Pine Street Contract Page 2 Description of Project Expenses Materials and Labor $94,000.00 CapitalRise Materials and Labor $94,000.00 AHCD Building Permit Fee $1,210.00 AHCD Real Estate Commision $14,400.00 AHCD Buyers Assistance $10,000.00 AHCD Developers Fee $250.00 AHCD TOTAL $213,860.00 Summary of Parties Investment AHCD Investment $119,860.00 L&M, BP,RC, BA, DF Capital Rise Investment $94,000.00 Labor&Material TOTAL INVESTMENT $213,860.00 Distribution of Funds Upon Sale Home Sales Price $240,000.00 Not Applicable AHCD Proceeds $ 121,000.00 CapitalRise, LLC. Proceeds $ 119,000.00 TOTAL DISTRIBUTED $ 240,000.00 *To the extent that the pricing provided by CAPITALRISE is erroneous and defective, the parties may by agreement, correct pricing errors to reflect the intent of the parties. CAPITALRISE shall adhere to the following budget in the performance of this contract: 1. Construction An amount not to exceed fifty percent (50%) of the actual construction costs, only including materials and labor, as outlined and approved on the Work Write-Up shall be expended by CAPITALRISE for construction costs related to the development of one single family detached home identified as 1230 Pine Street as part of the Heritage Pine Street Project. The design and specifications of the property shall be approved by AHCD prior to construction (see Appendix). Funds will be used to assist with the cost of all construction related fees. 2. Profit An amount not to exceed fifty percent (50%) of the sales price, as outlined and approved in Article I. Scope of Services, Section B.Use of Funds and on the Work Write-Up, shall be paid to CAPITALRISE for costs identified as necessary operating time and expenses in addition to Augusta Housing&Community Development Department 1230 Pine Street Contract Page 3 the profit accrued in the development of one single family detached home identified as 1230 Pine Street as part of the Heritage Pine Project. AHCD will have the latitude to pay O&P directly to the procured developer/contractor on a pay for performance basis or upon the sale of the single family detached home identified as 1230 Pine Street. 3. Developer's Fee An amount not to exceed $250.00 in a grant shall be expended to CAPITALRISE in support of the project development fees. Drawdowns are to be requested after sale of the single family detached home identified as 1230 Pine Street. C. Program Location and Specific Goals to be Achieved CAPITALRISE shall conduct project development activities and related services in its project area(also known as the Heritage Pine Community)that incorporates the following boundaries: Eleventh Street,Laney Walker Boulevard,Pine Street and Florence Street. D. Project Eligibility Determination It has been determined that the use of Laney Walker/Bethlehem Bond Financing funds by CAPITALRISE will be in compliance with legislation supporting community development in Laney Walker/Bethlehem as authorized under the Urban Redevelopment Authority which acts in behalf of the Augusta Commission to provide oversight of the operation of the Laney Walker/Bethlehem Redevelopment Project. Notwithstanding any other provisions of this contract, CAPITALRISE shall provide activities and services as described in the description of the project, including use of funds, its goals and objectives, tasks to be performed and a detailed schedule for completing the tasks for this project as provided in Exhibit A of this contract. ARTICLE II. BUDGET AND METHOD OF PAYMENT CAPITALRISE will carry out and oversee the implementation of the project as set forth in this Agreement and agrees to perform the required services under the general coordination of the Augusta Housing and Community Development Department. In addition, and upon approval by Augusta, CAPITALRISE, may engage the services of outside professional services consultants and contractors to help carry out the program and projects. A. Augusta shall designate and make Laney Walker/Bethlehem Bond Financing funds available in the following manner: 1. Augusta agrees to pay CAPITALRISE, a maximum of$ $250.00 under this Agreement for project expenses incurred as outlined in ARTICLE I, Scope of Services, subject to CAPITALRISE's compliance with all terms and conditions of this Agreement and the procedures for documenting expenses and activities as set forth in said Agreement; 2. The method of payment for construction costs, including only materials and labor as outlined and approved on the Work Write-Up, not to exceed the aforementioned contracted fifty percent (50%) shall be on a pay for performance basis provided CAPITALRISE and AHCD determine the progress is satisfactory. CAPITALRISE shall utilize the AIA Form provided by AHCD (see Appendix). For invoicing, CAPITALRISE will include documentation showing Augusta Housing&Community Development Department 1230 Pine Street Contract Page 4 proof of completion of work in accordance with the amount requested, inspected and accepted by AHCD, lien waivers for vendors and sub contractors, as specified in the Work Write-Up found in Exhibit B &E. 3. AHCD will monitor the progress of the project and CAPITALRISE's performance on a weekly basis with regards to the production of housing units and the overall effectiveness of project. 4. Upon the completion of this Agreement, any unused or residual funds remaining shall revert to Augusta and shall be due and payable on such date of the termination and shall be paid no later than thirty (30) days thereafter. CAPITALRISE and AHCD shall share in the cost and proceeds of developing the residence at 1230 Pine St as follows: Description of Project Expenses Materials and Labor $94,000.00 CapitalRise Materials and Labor $94,000.00 AHCD Building Permit Fee $1,210.00 AHCD Real Estate Commision $14,400.00 AHCD Buyers Assistance $10,000.00 AHCD Developers Fee $250.00 AHCD TOTAL $213,860.00 Summary of Parties Investment AHCD Investment $119,860.00 L&M, BP,RC, BA, DF Capital Rise Investment $94,000.00 Labor&Material TOTAL INVESTMENT $213,860.00 Distribution of Funds Upon Sale pu: Home Sales Price $240,000.00 Not Applicable AHCD Proceeds $ 121,000.00 CapitalRise, LLC. Proceeds $ 119,000.00 TOTAL DISTRIBUTED $ 240,000.00 5. Funds may not be transferred from line item to line item in the project budget without the prior written approval of Augusta Housing and Community Development. 6. This Agreement is based upon the availability of funding under the Laney Walker/Bethlehem Revitalization Project. Should funds no longer be available, it is agreed to by both parties that this contract shall terminate and any CAPITALRISE and AHCD deemed satisfactorily Augusta Housing&Community Development Department 1230 Pine Street Contract Page 5 progress made within the contracted construction only amount not to exceed percent (50%) shall be paid to CAPITALRISE. 7. AHCD will retain five percent(5%) of an amount within the fifty(50%)of construction costs, including only materials and labor as outlined and approved on the Work Write-Up, after the Certificate of Occupancy has been issued until CAPITALRISE and ARCD determine that all AHCD punchlist items have been satisfied. B. Project Financing The Augusta Housing and Community Development Department (AHCD) will provide an amount not to exceed fifty percent (50%) of the actual construction costs including only materials and labor as outlined and approved on the Work Write-Up to be expended by CAPITALRISE for construction costs related to the development of one single family detached home identified as 1230 Pine Street. Additionally, ARCD will provide fifty percent (50%) of all change orders (where applicable) as approved by both Augusta and CAPITALRISE in writing. All funding is being provided as payment for services rendered as per this Agreement. C. Timetable for Completion of Project Activities CAPITALRISE shall be permitted to commence with the expenditure of Laney Walker/Bethlehem Bond Financing funds as outlined in said Agreement upon procurement of a construction contractor in accordance with its policies and procedures; and approval of a detailed outline of project expenditures anticipated for the completion of the development within 180 days of said home identified as 1230 Pine Street as part of the Heritage Pine Project. Liquidated Damages CAPITALRISE agrees to pay as liquidated damages to Augusta the sum of one hundred dollars ($100.00) for each consecutive calendar day after the expiration of the Contract Time of Completion Time, except for authorized extensions of time by Augusta. This section is independent of any section within this Agreement concerning the default of CAPITALRISE. The parties agree that these provisions for liquidated damages are not intended to operate as penalties for breach of Contract. The liquidated damages set forth above are not intended to compensate Augusta for any damages other than inconvenience and loss of use or delay in services. The existence or recovery of such liquidated damages shall not preclude Augusta from recovering other damages in addition to the payments made hereunder which Augusta can document as being attributable to the documented failure of CAPITALRISE. In addition to other costs that may be recouped, Augusta may include costs of personnel and assets used to coordinate, inspect, and re-inspect items within this Agreement as well as attorney fees if applicable. Augusta Housing&Community Development Department 1230 Pine Street Contract Page 6 Specified excuses CAPITALRISE is not responsible for delay in performance caused by hurricanes, tornados, floods, and other severe and unexpected acts of nature. In any such event,the contract price and schedule shall be equitably adjusted. Temporary Suspension or Delay of Performance of Contract To the extent that it does not alter the scope of this Agreement, Augusta may unilaterally order a temporary stopping of the work, or delaying of the work to be performed by CAPITALRISE under this Agreement. D. Project Budget: Limitations All costs associated with construction, O&P, construction management, and real estate expenses have been outlined in said Agreement as percentage based costs related to the development of one single family detached home identified as 1230 Pine Street as part of the Heritage Pine Project. AHCD will have the latitude to pay such costs directly to the procured construction contractor. CAPITALRISE shall be paid a total consideration of no more than $250.00 for full performance of the services specified under this Agreement. Any cost above this amount shall be the sole responsibility of CAPITALRISE. It is also understood by both parties to this contract that the funding provided under this contract for this specific project shall be the only funds provided by Augusta — unless otherwise agreed to by Augusta and CAPITALRISE. CAPITALRISE shall adhere to the budget as outlined in the Work Write-Up(Exhibit B)in the performance of this contract. ARTICLE III. TERM OF CONTRACT The term of this Agreement shall commence on the date when this Agreement is executed by Augusta and CAPITALRISE(whichever date is later) and shall end at the completion of all program activities, within the time specified in Article II.C, or in accordance with ARTICLE X: Suspension and Termination. ARTICLE IV. DOCUMENTATION AND PAYMENT A. This is a pay-for-performance contract and in no event shall Augusta provide advance funding to CAPITALRISE, or any subcontractor hereunder. B. CAPITALRISE shall not use these funds for any purpose other than the purpose set forth in this Agreement. C. Subject to CAPITALRISE's compliance with the provisions of this Agreement, Augusta agrees to reimburse all budgeted costs allowable under federal, state, and local guidelines. D. All purchases of capital equipment, goods and services shall comply with the procurement procedures of OMB Circular A-110 "Uniform Administrative Requirements for Grant Agreements with Institutions of Higher Education, Hospitals and Other Non-Profit Organizations" as well as the procurement policy of Augusta. Augusta Housing&Community Development Department 1230 Pine Street Contract Page 7 E. Requests by CAPITALRISE for payment shall be accompanied by proper documentation and shall be submitted to AHCD,transmitted by a cover memo, for approval no later than thirty(30) calendar days after the last date covered by the request. For purposes of this section, proper documentation includes: Updated Exhibit A- schedule (Gantt Chart), Updated Exhibit B- Work Write-Up, and AIA Form. F. CAPITALRISE shall maintain an adequate financial system and internal fiscal controls. G. Unexpended Funds: Unexpended funds shall be retained by Augusta. Upon written request, Augusta may consider the reallocation of unexpended funds to eligible projects proposed by CAPITALRISE. H. The terms of this Agreement supersede any and all provisions of the Georgia Prompt Pay Act. I. Upon the sale of the detached single family home at 1230 Pine St., AHCD is to provide CAPITALRISE with any outstanding payments on approved invoices and related costs received within ten(10)business days. ARTICLE V. ADMINISTRATIVE REQUIREMENTS Conflict of Interest CAPITALRISE agrees to comply with the conflict of interest provisions contained in 24 CFR 85.36, 570.611,OMB Circular A-110 and OMB Circular A-102 as appropriate. This conflict of interest provision applies to any person who is an employee, agent, consultant, officer, or elected official or appointed official of CAPITALRISE. No person described above who exercises, may exercise or has exercised any functions or responsibilities with respect to the activities supported under this contract; or who are in a position to participate in a decision-making process or gain inside information with regard to such activities, may obtain any financial interest or benefit from the activities, or have a financial interest in any contract, sub-contract, or agreement with respect to the contract activities,either for themselves or those with whom they have business or family ties, during their tenure or for one year thereafter. For the purpose of this provision, "family ties", as defined in the above cited volume and provisions of the Code of Federal Regulations, include those related as Spouse, Father, Mother, Father-in-law, Mother-in-law, Step-parent, Children, Step-children, Brother, Sister, Brother-in-law, Sister-in-law, Grandparent, Grandchildren of the individual holding any interest in the subject matter of this Agreement. CAPITALRISE in the persons of Directors, Officers, Employees, Staff, Volunteers and Associates such as Contractors, Sub-contractors and Consultants shall sign and submit a Conflict of Interest Affidavit. (Affidavit form attached as part in parcel to this Agreement) Augusta may, from time to time, request changes to the scope of this Agreement and obligations to be performed hereunder by CAPITALRISE. In such instances,CAPITALRISE shall consult with AHCD/Augusta on any changes that will result in substantive changes to this Agreement. All such changes shall be made via written amendments to this Agreement and shall be approved by the governing bodies of both Augusta and CAPITALRISE. Statutes, regulations, guidelines and forms referenced throughout this Agreement are listed in Appendix A and are attached and included as part in parcel to this Agreement. Augusta Housing&Community Development Department 1230 Pine Street Contract Page 8 ARTICLE VI. OTHER REQUIREMENTS A. CAPITALRISE agrees that it will conduct and administer activities in conformity with Pub. L. 88-352, "Title VI of the Civil Rights Act of 1964", and with Pub. L. 90-284 "Fair Housing Act" and that it will affirmatively further fair housing. One suggested activity is to use the fair housing symbol and language in CAPITALRISE's publications and/or advertisements. (24 CFR 570.601). B. CAPITALRISE agrees that the ownership in the housing assisted units must meet the definition of"homeownership" in §92.2. C. CAPITALRISE agrees to comply with 24 CFR Part I, which provides that no person shall be excluded from participation in this project on the grounds of race, color, national origin, or sex; or be subject to discrimination under any program or activity funded in whole or in part with federal funds made available pursuant to the Act. D. No person employed in the work covered by this contract shall be discharged or in any way discriminated against because he or she has filed any complaint or instituted or caused to be instituted any proceeding or has testified or is about to testify in any proceeding under or relating to the labor standards applicable hereunder to his or her employer. (24 CFR 570.603) E. CAPITALRISE agrees that in accordance with the National Environmental Policy Act of 1969 and 24 CFR Part 58, it will cooperate with Augusta/HCD in complying with the Act and regulations, and that no activities will be undertaken until notified by Augusta/HCD that the activity is in compliance with the Act and regulations. Prior to beginning any project development activity, an environmental review must be conducted by ARCD pursuant to (24 CFR 570.604). F. Consistent with the Flood Disaster Protection Act of 1973 (42 USC 4001-4128), CAPITALRISE agrees that funds shall not be expended for acquisition or construction in an area identified by the Federal Emergency Management Agency (FEMA) as having special flood hazards (representing the 100-year floodplain). Exceptions will be made if the community is participating in the National Flood Insurance Program or less than a year has passed since FEMA notification and flood insurance has been obtained in accordance with section 102(a)of the Flood Disaster Protection Act of 1973. G. CAPITALRISE agrees to take all reasonable steps to minimize displacement of persons as a result of assisted activities. Any such activities will be conducted in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA) and the Housing and Community Development Act of 1974(24 CFR 570.606). H. CAPITALRISE agrees to comply with Executive Order 11246 and 12086 and the regulations issued pursuant thereto (41 CFR 60) which provides that no person shall be discriminated against on the basis of race, color, religion, sex or national origin. CAPITALRISE will in all solicitations or advertisements for employees placed state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin or familial status. Augusta Housing&Community Development Department 1230 Pine Street Contract Page 9 I. CAPITALRISE will not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, or familial status. CAPITALRISE will take appropriate action to ensure that applicants are employed, and that employees are treated fairly during employment, without regard to their race, color, religion, sex, national origin or familial status. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or advertising; lay-off or termination, rates of pay or other forms of compensation; and selection for training, including apprenticeship. CAPITALRISE agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by Augusta setting forth the provisions of this nondiscrimination clause. Augusta Housing&Community Development Department 1230 Pine Street Contract Page 10 J. In accordance with Section 570.608 of the CDBG Regulations, CAPITALRISE agrees to comply with the Lead Based Paint Poisoning Prevention Act pursuant to prohibition against the use of lead-based paint in residential structures and to comply with 24 CFR 570.608 and 24 CFR 35 with regard to notification of the hazards of lead-based paint poisoning and the elimination of lead-based paint hazards. K. CAPITALRISE agrees to comply with 24 CFR 570.609 with regards to the direct or indirect use of any contractor during any period of debarment, suspension or placement in ineligibility status. No contract will be executed until such time that the debarred, suspended or ineligible contractor has been approved and reinstated by AHCD. L. In accordance with 24 CFR part 24, subpart F, CAPITALRISE agrees to administer a policy to provide a drug-free workplace that is free from illegal use, possession or distribution of drugs or alcohol by its beneficiaries as required by the Drug Free Workplace Act of 1988. M. Any publicity generated by CAPITALRISE for the project funded pursuant to this Agreement, during the term of this Agreement or for one year thereafter, will make reference to the contribution of Augusta, Georgia in making the project possible. The words "Augusta Georgia Department of Housing and Community Development" will be explicitly stated in any and all pieces of publicity; including but not limited to flyers, press releases, posters, brochures, public service announcements,interviews,and newspaper articles. N. CAPITALRISE shall comply with all applicable laws, ordinances and codes of the federal, state, and local governments and shall commit no trespass on any public or private property in performing any of the work embraced by this contract. CAPITALRISE agrees to obtain all necessary permits for intended improvements or activities. O. CAPITALRISE shall not assign any interest in this contract or transfer any interest in the same without the prior written approval of Augusta. CAPITALRISE agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by Augusta setting forth the provisions of this nondiscrimination clause. Except as prohibited by law or the March 14, 2007 Court Order in the case Thompson Wrecking, Inc. v. Augusta, Georgia, Civil Action No. 1:07-CV-019 (S.D. GA 2007). ANY LANGUAGE THAT VIOLATES THIS COURT ORDER IS VOIDABLE BY THE AUGUSTA GOVERNMENT. CAPITALRISE agrees to comply with any federally mandated requirements as to minority and women owned- business enterprises. P. All contractors and subcontractors entering into contracts with Augusta, Georgia for the physical performance of services shall be required to execute an Affidavit verifying its compliance with O.C.G.A § 13-10-91, stating affirmatively that the individual, firm, or corporation which is contracting with Augusta, Georgia has registered with and is participating in a federal work authorization program. All contractors and subcontractors must provide their E-Verify number and must be in compliance with the electronic verification of work authorized programs operated by the United States Department of Homeland Security or any equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA), P.L. 99-603, in accordance with the applicability provisions and deadlines established in O.C.G.A. § 13-10-91 and shall continue Augusta Housing&Community Development Department 1230 Pine Street Contract Page 11 to use the federal authorization program throughout the contract term. All contractors shall further agree that, should it employ or contract with any subcontractor in connection with the physical performance of services pursuant to its contract with Augusta, Georgia the contractor will secure from such subcontractors each subcontractor's E-Verify number as evidence of verification of compliance with O.C.G.A §13-10-91 on the subcontractor affidavit provided in Rule 300-10-01-.08 or a substantially similar form. All contractors shall further agree to maintain records of such compliance and provide a copy of each such verification to Augusta, Georgia at the time the subcontractors are retained to perform such physical services. Q. CAPITALRISE agrees that low and moderate income persons reside within Augusta- Richmond County and that contract for work in connection with the project be awarded to eligible businesses which are located in or owned in substantial part by persons residing in Augusta-Richmond County. (24 CFR 570.697) Utilization of contractors and/or subcontractors outside of the Augusta-Richmond County area is not desirable. R. CAPITALRISE agrees to comply with the prohibitions against discrimination on the basis of age under the Age Discrimination Act of 1975 (42 U.S.C. 6101-07) and implementing regulations at 24 CFR part 146 and the prohibitions against otherwise qualified individuals with handicaps under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing regulations at 24 CFR part 8. For purposes of the emergency shelter grants program,the term dwelling units in 24 CFR Part 8 shall include sleeping accommodations. S. CAPITALRISE will not discriminate against any employee or applicant for employment on the basis of religion and will not give preference of persons on the basis of religion. CAPITALRISE will not discriminate against any person applying for shelter on the basis of religion. CAPITALRISE will provide no religious instruction or counseling, conduct no religious worship or services, engage in no religious proselytizing and exert no religious influence in the provision of shelter and other eligible activities funded by this grant. T. Indirect costs will only be paid if CAPITALRISE has indirect cost allocation plan approved by the Department of Housing and Urban Development prior to the execution of this Contract. U. AHCD shall not approve any travel or travel related expenses to CAPITALRISE with funds provided under this contract. V. Construction Requirements In the absence of local codes, properties must meet the HUD Section 8 Housing Quality Standards [HQS]. All housing assisted under this Agreement is "new construction" by definition and therefore must meet the local building codes for new housing in Augusta Georgia,as applicable. CAPITALRISE is required by state and local laws, to dispose of all site debris, trash, and rubble from the project be transported to and disposed of at the Augusta, Georgia Solid Waste Landfill in accordance with local and state regulations. The contractor shall provide evidence of proper disposal of, the name and location of the disposal facility, date of disposal and all related fee. Augusta, Georgia may, at reasonable times, inspect the part of the plant, place of business, or work site of CAPITALRISE or any subcontractor of CAPITALRISE or subunit thereof which is pertinent to the performance of any contract awarded or to be awarded by Augusta,Georgia. Augusta Housing&Community Development Department 1230 Pine Street Contract Page 12 ARTICLE X. SUSPENSION AND TERMINATION A. In the event CAPITALRISE materially fails to comply with any terms of this Agreement, including the timely completion of activities as described in the timetable and/or contained in ARTICLE II.C, Augusta may withhold cash payments until CAPITALRISE cures any breach of the Agreement. If CAPITALRISE fails to cure the breach, Augusta may suspend or terminate the current award of funds. CAPITALRISE will not be eligible to receive any other funding. B. Notwithstanding the above, CAPITALRISE shall not be relieved of its liability to Augusta for damages sustained as a result of any breach of this Agreement. In addition, to any other remedies it may have at law or equity, Augusta may withhold any payments to CAPITALRISE for the purposes of offsetting the exact amount of damages once determined. C. In the best interest of the project and to better serve the people in the target areas and fulfill the purposes of the Laney Walker/ Bethlehem Revitalization project, either party may terminate this Agreement upon giving thirty (30) day notice in writing of its intent to terminate, stating its reasons for doing so. In the event Augusta terminates this Agreement, Augusta shall pay CAPITALRISE for documented committed eligible costs incurred prior to the date of notice of termination. D. Notwithstanding any termination or suspension of this Agreement, CAPITALRISE shall not be relieved of any duties or obligations imposed on it under this Agreement with respect to Laney Walker Bond Financing funds previously disbursed or income derived therefrom. E. To the extent that it does not alter the scope of this Agreement, Augusta, GA may unilaterally order a temporary stopping of the work or delaying of the work to be performed by CAPITALRISE under this contract. ARTICLE XI. NOTICES Whenever either party desires to give notice unto the other, such notice must be in writing, sent by certified United States mail, return receipt requested, addressed to the party for whom it is intended, at the place last specified, and the place for giving of notice shall remain such until it shall have been changed by written notice. Augusta will receive all notices at the address indicated below: Office of the Administrator ATTN: Janice Allen Jackson,Administrator Municipal Building 535 Telfair Street, Suite 910 Augusta,Georgia 30901 With copies to: Augusta Housing and Community Development Department ATTN: Hawthorne Welcher,Jr.,Director 925 Laney Walker Blvd.,rd Floor Augusta, Georgia 30901 Augusta Housing&Community Development Department 1230 Pine Street Contract Page 13 CAPITALRISE will receive all notices at the address indicated below: Capitalrise LLC. ATTN: Peter Tuchyna and Frank Klimes 2924 Aylesbury Drive Augusta, GA 30909 ARTICLE XII. INDEMNIFICATION CAPITALRISE will at all times hereafter indemnify and hold harmless Augusta, its officers, agents and employees, against any and all claims, losses, liabilities, or expenditures of any kind, including court costs, attorney fees and expenses, accruing or resulting from any or all suits or damages of any kind resulting from injuries or damages sustained by any person or persons, corporation or property, by virtue of the performance of this Agreement. By execution of this Agreement, CAPITALRISE specifically consents to jurisdiction and venue in the Superior Court of Richmond County, Georgia and waives any right to contest jurisdiction or venue in said Court. Should it become necessary to determine the meaning or otherwise interpret any work, phrase or provision of this Agreement, or should the terms of this Agreement in any way be the subject of litigation in any court of laws or equity. It is agreed that the laws of the State of Georgia shall exclusively control the same. The parties hereto do agree to bind themselves, their heirs, executors, administrators, trustees, successors and assigns, all jointly and severally under the terms of this Agreement. ARTICLE XIII. PRIOR AND FUTURE AGREEMENTS This Document incorporates and includes all prior negotiations, correspondence, conversations, agreements or understandings applicable to the matters contained herein and the parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this Agreement that are not contained in this document. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements whether oral or written.Augusta is not obligated to provide funding of any kind to CAPITALRISE beyond the term of this Agreement. CAPITALRISE warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by CAPITALRISE for the purpose of securing business and that CAPITALRISE has not received any non-Augusta fee related to this Agreement without the prior written consent of Augusta. For breach or violation of this warranty,Augusta shall have the right to annul this Agreement without liability or at its discretion to deduct from the Agreement prices of consideration the full amount of such commission,percentage,brokerage,or contingent fee. ARTICLE XIV. LEGAL PROVISIONS DEEMED INCLUDED Each and every provision of any law or regulations and clause required by law or regulation to be inserted in this Agreement shall be deemed to be inserted herein and this Agreement shall be read and enforced as though it were included herein and if, through mistake or otherwise, any such provision is Augusta Housing&Community Development Department 1230 Pine Street Contract Page 14 not inserted or is not correctly inserted, then upon application of either party this Agreement shall forthwith be amended to make such insertion. ARTICLE XV. DISCLAIMER Any and all language in this Agreement pertaining to HUD regulations and/or the utilizations of HOME funding is deemed voidable when utilizing Laney Walker Bond funds in its entirety. However, if there are any federal funds utilized by this project, including Homebuyer Subsidy funds, this Agreement will be enforceable in its entirety. ARTICLE XVI. COUNTERPARTS This Agreement is executed in two (2) counterparts—each of which shall be deemed an original and together shall constitute one and the same Agreement with one counterpart being delivered to each party hereto. Augusta Housing&Community Development Department 1230 Pine Street Contract Page 15 IN WITNESS WHEREOF, the parties have set their hands and seals as of the date first written above: Approved as to F (please initial here): _� BY: �GIJ�00I.t.'' 7.--- =-) Andrew MacKenzie,as its General Counsel Mayor Hardie Davis,Jr.,as its Mayor Date: 11//3 Jl f Date: r I 0 1 By:� U L AV r BY: _.�� JaAllen Jackson, .. •dministrator Hawth r, • Welcher,Jr., .s its ector ate . , Date: i b..11 Se &.amt, ��' II ,It� it, Affix Seal Here: 6k Len :on eti G e 4f nika s$n kS qq , tta 64ae®csrssoN f ATTEST: - ., Capitalrise LLC. • -------------- By: 8y;,--~'' Frank Mimes, Co-Owner / -'' P er Tuchyna Co-Owner ✓ li- Date: 0 Z9 ‘ Date: ////6-3/-;' / %2 "'"/?/'7.- Augusta Housing&Community Development Department 1230 Pine Street Contract Page 16 APPENDIX 1 Architectural Plans/Desi2ns Augusta Housing&Community Development Department 1230 Pine Street Contract Page 17 ` i '., E I :' 41 ., ,, !R. A •••:: u A h 1 z., 2 b c4 i 111141 0 O 1,,,,., M.' .. '-il j1 , fl w x 1 i n - al H j 1 1 - - W CA aMi L ...-1 w .c_497 E-4 un ........_. _ 0 4i 1 _wii 140 mlji. __Ii__Jr._.___, 1'''' 4 I U� is C CZ en- tr N 17-1- a Ci" rmi ._. -; a I i"0) � 1 AMIi Vd ir C 1 illi I ai M Al I i , C 0 a N A Q WI U 1 II z E. 1 91l,,1 0 / 'Rslfl F r E, I ®' Eltl, le- UI 1 W R11 R,Y;' a rr ffis,t Milt II . EId,P g R 1.' 11.1./ ii,10 E�t11! r^ I. .. ini! 1t 1111 ll \- 1,1 R1. I. B E R . 11� iiidt RItY: E1€,1 s Rl111 Aliall EMI rL Wi11�1111Y YIIRI 41 d 0.* ■■ ,- 11'1 _ 111'1 I 1 113RF t�E�l!6;It11' en rIIIIIIIMNI1 !1 Nt. { R - EJ ' NM II i E ' 1 z 11111 ON® ' BE ME iYil Y ;1 1w I. .._. .- • �o,�.d,d .d,ded t= a1 W I°11! E ` 1,111 1-1 ' Olin R o 1i 3 1�1 r� .. 11L9'!;l�Ea�, Io mi 11111 11111 d�di; NItile t11 APPENDIX 2 American Institute of Architects(AIA)Form-Sample Augusta Housing&Community Development Department 1230 Pine Street Contract Page 18 APPENDIX 3 Statutes: (Available on Request) OMB Circular A-110 - Uniform Administrative Requirements for Grants and Agreement with Institutions of Higher Education,Hospitals, and Other Non-Profit Organizations OMB Circular A- 122 -Cost Principles for Non-Profit Organizations OMB Circular A-133 -Audits of Institutions of Higher Education&other Non-Profit Institutions 40 USC 276 Davis-Bacon Act 40 USC 327 Contract Work Hours and Safety Standard Act Uniform Relocation Assistance and Real Property Acquisition Policies Act Lead Based Paint Poisoning Prevention Act 24 CFR 35 — HUD Requirements for Notification, Evaluation and Reduction of Lead-Based Paint Hazards in Housing Receiving Federal Assistance and Federally-Owned Residential Property being sold,Final Rule Augusta-Richmond County Procurement Policy Conflict of Interest Affidavit Augusta Housing&Community Development Department 1230 Pine Street Contract Page 19 APPENDIX 4 CONSTRUCTION REQUIREMENTS 1. All construction projects shall comply with Federal, State, and local codes and ordinances, including,but not limited to,the following: A. "Standard Building Code", 2000 Edition, Southern Building Congress, International, Inc., Birmingham,Alabama. B. "Standard Plumbing Code", latest edition, Southern Building Congress, International, Inc., Birmingham,Alabama. C. Standard Mechanical Code, latest edition, Southern Building Congress, International, Inc., Birmingham,Alabama. D. "National Electric Code", latest edition, National Fire Protection Association, Quincy, Massachusetts. E. Model Energy Code, 1997,Council of American Building Officials. F. "ADA Accessibility Guidelines for Buildings and Facilities", Department of Justice, American with Disabilities Act of 1990". G. Williams-Steiger Occupational Safety and Health Act of 1970,Public Law 91-596. H. Part 1910 — Occupational Safety and Health Standards, Chapter XVII of Title 29, Code of Federal Regulations(Federal Register,Volume 37,Number 202,October 18, 1972). I. Part 1926 - Safety and Health Regulations for Construction, Chapter XVII of Title 29, Code of Federal Regulations(Federal Register,Volume 37,Number 243,December 16, 1972. J. Section 106 of the National Historic Preservation Act(16 U.S.C. 470f). 2. Project Review. All plans, specifications,work write-ups,projected cost estimates,punch lists or other means of outlining work on a particular project will be submitted in writing to ARCD for review and approval prior to bidding. AHCD Construction and Rehabilitation Inspectors or AHCD's agent will review these items for compliance with new construction and/or rehabilitation standards and materials use. 3. Rehabilitation Standards. All rehabilitation work will comply with the "Uniform Physical Condition Standards for HUD Housing." Workmanship and material standards will comply with the Augusta-Richmond County Housing & Community Development Department Contractors Manual and Performance Standards. A copy of this manual is provided to every contractor when included on the ARCD Approved Contractors List. A copy is enclosed for inclusion. 4. Inspections. All projects will be inspected and approved by an AHCD Construction and Rehabilitation Inspector or AHCD's agent prior to release of the funds for that project. Augusta Housing&Community Development Department 1230 Pine Street Contract Page 20 APPENDIX 5 CONTRACTOR ACKNOWLEDGEMENT JLovett Homes & Construction acknowledges that this contract and any changes to it by amendment, modification, change order or other similar document may have required or may require the legislative authorization of the Board of Commissioner and approval of the Mayor. Under Georgia law, JLovett Homes & Construction is deemed to possess knowledge concerning Augusta, Georgia's ability to assume contractual obligations and the consequences of Contractor's provision of goods or services to Augusta, Georgia under an unauthorized contract, amendment, modification, change order or other similar document, including the possibility that JLovett Homes&Construction may be precluded from recovering payment for such unauthorized goods or services. Accordingly, JLovett Homes & Construction agrees that if it provides goods or services to Augusta, Georgia under a contract that has not received proper legislative authorization or if JLovett Homes & Construction provides goods or services to Augusta, Georgia in excess of the any contractually authorized goods or services, as required by Augusta, Georgia's Charter and Code, Augusta, Georgia may withhold payment for any unauthorized goods or services provided by JLovett Homes & Construction. JLovett Homes & Construction assumes all risk of non-payment for the provision of any unauthorized goods or services to Augusta, Georgia, and it waives all claims to payment or to other remedies for the provision of any unauthorized goods or services to Augusta, Georgia, however characterized including, without limitation, all remedies at law or equity. This acknowledgement shall be a mandatory provision in all Augusta, Georgia contracts for goods and services,except revenue producing contracts. Frank i me eter Tuchyna Capitalrise,LLC. Owner Augusta Housing&Community Development Department 1230 Pine Street Contract Page 21 EXHIBIT A PROJECT SCHEDULE OF COMPLETION CAPITALRISE MUST PROVIDE A COMPLETED SCHEDULE OF COMPLETION AS EXHIBIT A-WITH APPROPRIATE PROJECT MILESTONES WITHIN 10 TO 15 DAYS AFTER SIGNING THIS AGREEMENT. THIS SCHEDULE MUST BE PROVIDED IN SUFFICIENT DETAIL TO PERMIT AHCD TO MONITOR AND ASSESS PROGRESS IN CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT. 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J W 00 0 ~ CL 0 2 °� I- 2 2 u) Z J qa N _ °o 0 z 2 a O: a 2 } 3 ea 0 08 0 p OC a ed O O 0 08 C7 W 0 W Oat v rt ra y a v c n o 2 0 Z Z r2 i= Ce Z re m W Z � 77 Z Imo— Q 2 'o I- 0 as a 47. 2 7 FW- z 0 < N 7 W < W 7 m Z W W Z ix © d N To > > d W 0 X 7 0 Z CA 2 W J J < a a. J O W � CO O) ii 0 0 u) CI IL W (7 a' LL It uJ 2 W GL C) a u) C-) C) a N - CI CL EXHIBIT C PROJECT DEVELOPMENT AND MANAGEMENT PROCEDURES 1. AHCD must review and approve all new construction work, project specifications and total development cost for each residential development project before work is commenced and before funds can be released for payment reimbursement. Construction payments will be released to CAPITALRISE in accordance with the attached drawdown schedule and budget. 2. AHCD will provide the lot on which all new construction efforts will be performed under this Agreement and in connection with the Heritage Pine Development Project. 3. With AHCD approval, CAPITALRISE may use funds under this Agreement for the following purposes: a. To support development costs as outlined in Item 6 below. 4. Completion delays,remedies, and penalties. a. If the Contractor fails to complete the work within the time frame specified in the contract,plus any authorized delays,AHCD may: i. Terminate the contractor in accordance with the "Provisions for Augusta Housing and Community Development Department (AHCD)" clause of this contract. ii. Assess liquidated damages of Two Hundred Dollars ($200) per working day from the schedule of completion to the date of final acceptance of the project. The total amount of liquidated damages will be deducted from the total contract price,plus any change order amounts. b. The contractor shall not be charged with liquidated damages for any delays in the completion of the work due: i. To any acts of the Federal, State, or City/County Government; including controls or restrictions upon or requisitioning of materials, equipment,tools or labor by reason of war, National Defense, or any other National, State, or City/County emergency. ii. To any acts of the Owner that hinder the progress of the work; iii. To cause not reasonable foreseeable by the parties in this contract at the time the execution of the contract which are beyond the control and without the fault or negligence of the Contractor; including but not restricted to acts of God; acts of the public enemy; acts of another contractor in the performance of some other contract with the owner; fires; floods; epidemics; quarantine restrictions; strikes; freight embargoes; and weather or unusual severity such as hurricanes,tornadoes,cyclones, and other extreme weather conditions; and iv. To any delay of the subcontractor occasioned by any other causes specified in subparagraphs A and B above. Provided, however, that the contractor promptly (within 10 days) notifies AHCD and CAPITALRISE in writing of the cause of the delay. If the facts show the delay to be properly excusable under the terms of this contract, AHCD shall extend the contract time by a period commensurate with the period of authorized delay to the completion of the work as whole; in the form of an amendment to this contract. 5. New Construction Costs and Requirements Augusta Housing&Community Development Department 1230 Pine Street Contract Page 24 a. CAPITALRISE will provide construction management for the project to ensure that construction work is being carried out in accordance with plans, specifications and the project budget. b. CAPITALRISE must make sure contractors obtain and post all permits on job site. c. CAPITALRISE must collect progress and final lien releases from the contractor, subcontractors,and material suppliers prior to making a payment to a contractor. d. AHCD or its agent may continually inspect each house for contract compliance and to determine the percent of completion prior to processing a draw request and releasing payment. AHCD may choose not to release payments if the work being performed is not of acceptable quality to AHCD and if the house is not being built or rehabilitated in accordance with plans and specifications, or if the project is not on schedule. 6. Permanent Financing and Sales Prices a. The sales price of each home sold in accordance with this Agreement must be based on a formal appraisal. Unless otherwise agreed to by AHCD, the sales price of each house shall not exceed the appraised value of the house. b. The purchasers of houses constructed must meet the Augusta program requirements. c. Buyers will be required to borrow no less than 80% of the sale prices of the house from a private lending institution unless otherwise agreed to by AHCD. Augusta Housing&Community Development Department 1230 Pine Street Contract Page 25