EXHIBITS FOR DEVELOPER AGREEMENT.PDF

LIST OF EXHIBITS AND ATTACHMENTS TO THE DEVELOPER AGREEMENT BETWEEN
MARICOPA COUNTY AND THE RIVER AT EASTLINE VILLAGE LLC
EXHIBIT A- STATEMENT OF WORK
Attachment 1: Management and Ownership Services
Attachment 2: Financing Services
Attachment 3: Design/Planning Services
Attachment 4: Site Preparation Services
Attachment 5: Construction Services
Attachment 6: Social Services
Attachment 7: Project Description
Attachment 8: Budget
Attachment 9: Project Schedule
Attachment 10: Budget Amendment Request Form
Attachment 11: Maximum Per Unit Subsidy Limits
Attachment 12: HOME Income and Rent Limits
Attachment 13: Utility Allowances
Attachment 14: Annual Income Documentation
EXHIBIT B-SECURITY INSTRUMENTS
Attachment 1: Declaration of Covenants, Conditions and Restrictions; Deed of Trust; Promissory Note;
Agreement to Subordinate to RAD Use Agreement; Subordination Agreement
Attachment 2: ALTA / NSPS Land Title Survey
EXHIBIT C- ADDITIONAL PROCEDURES/FORMS
Attachment 1: Affirmative Marketing and Fair Housing Policies and Procedures
Attachment 2: Occupancy Restrictions and Project Unit Characteristics
Attachment 3: Request for Reimbursement Procedures
Attachment 4: Match Log Form
Attachment 5: Sample Request for Reimbursement Cover Letter
Attachment 6: Request for Reimbursement Form
Attachment 7: Rental Set Up and Completion Form
Attachment 8: Section 3 and Section 3 Summary Report Form-HUD 60002
Attachment 9: Minority and Women’s Business Enterprise (MBE/WBE) Report
Attachment 10: Annual Rental Compliance Report
EXHIBIT D- CONTRACTOR CERTIFICATIONS
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EXHIBIT A STATEMENT OF WORK
ATTACHMENT 1-MANAGEMENT AND OWNERSHIP SERVICES
River at Eastline Village shall be responsible for the following:
1. Preparing the Project Plan and assisting the County in the preparation of funding applications
and disposition requests to be submitted to HUD.
2. Developing and organizing the Owner Entity for the Project in form and with such partners as
are approved by the County.
3. Preparing LIHTC and other financing applications for which River at Eastline Village is
eligible to apply in connection with the Project.
4. Preparing Rental Assistance Demonstration (RAD) submissions to HUD as well as assisting the
County in responding to HUD's requests for additional information, if any, and provision of
supporting documentation in a timely manner.
5. Developing and implementing plans to encourage participation in the Project of Section 3
residents, Section 3 small business concerns, minority-owned businesses and women-owned
businesses. All such plans shall be submitted to the County for its review and approval.
6. Using best efforts to cause the Project to proceed and close in accordance with the Project
Schedule and the Project Budget.
7. Engaging an independent consultant to conduct a market analysis and feasibility study.
8. Assist the County in preparing all required submissions and reports to HUD and other
governmental agencies, and assisting the County in securing HUD approvals.
9. Assuring that all Project activities performed shall be provided in accordance with generally
accepted standards for quality Project and construction of housing in Maricopa County.
10. Furnishing the skill and judgment necessary to perform the Project Services in a quality,
expeditious and economical manner consistent with the best interests of the Project.
11. Subject to the review and approval of the County and HUD, negotiating and entering into all
necessary agreements between lenders, construction managers, equity investors, governmental
bodies, residents, and the Owner Entity.
12. Entering into a management agreement, including management policies, with a
Management Agent approved by River at Eastline Village, County, the tax credit investor
and lenders for management of the Project. The management agent shall be responsible for
ensuring that all marketing and leasing activities are completed.
13. Preparing a Property Management Plan responsive to mixed income and self-sufficiency goals,
subject to review and approval of the County.
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14. Developing a marketing plan and initial lease-up program, subject to review and approval of the
County prior to the date such items are required to be submitted to HUD.
15. Performing such other Management and Ownership Services which are necessary for the
Project.
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EXHIBIT A STATEMENT OF WORK
ATTACHMENT 2- FINANCING SERVICES
River at Eastline Village shall be responsible for all project financing, including without limitation, and
preparing for the County's review and approval of an overall plan for the financing and equity
investment necessary for the rehabilitation and/or construction of the Project ("Financing Plan"). Such
plan shall set forth, inter alia, the debt and equity to be raised, the sources for all funds and expected
uses. It is expected that such financing will include Low-Income Housing Tax Credits under Section 42
of the Code ("LIHTC"); either 4% credits combined with an issuance of Tax-Exempt Bonds or
9% credits, historic tax credits (if applicable), conventional financing and such other sources of
funds (including local government contributions) as necessary to fund the completion of the
Project. Such sources may include the Affordable Housing Program through the Federal Home Loan
Bank, State Housing Funds from Arizona Department of Housing (ADOH), HUD funds, funds
from the U.S. Department of Treasury, mortgage financing (based on rent structure that can be
supported), local commitments including River at Eastline Village or other third party funds to cover
pre-development planning (to include but not necessarily be limited to the development of the
schedule of tasks to refine, finalize and implement the development program).
The Financing Plan shall be submitted to the County simultaneously with the Project Budget for
review, comment, and approval. All financing shall be secured by River at Eastline Village on behalf of
the Owner Entities. Once the Financing Plan is approved by the County, River at Eastline Village shall
be responsible for its implementation. Such implementation shall include the following:
1. Applying for and obtaining from issuing agencies such tax-exempt bond volume
cap and/or LIHTC as necessary to (a) attract equity investments; (b) ensure such allocations are
preserved through the Closing and (c) ensure the making of such equity investments. Neither River at
Eastline Village nor any party affiliated with River at Eastline Village shall receive any compensation
for the syndication of tax credits or solicitation of investors.
2. Providing legal counsel for tax credit syndication and/or bond issuance, the cost of
which shall be a Project expense.
3. Prior to selecting an LIHTC Investor for the Project, River at Eastline Village will
solicit no fewer than three proposals from reputable tax credit investors, including any tax credit
investors recommended by the County; or after consultation with the County such other Investor
funding solicitation or application, including funding from ADOH, HUD or the Department of the
Treasury necessary so as to make the Project financially feasible. The County shall have the right
to review and comment on all solicitation packages, syndication and Investor proposals, and River at
Eastline Village shall take all such comment into reasonable consideration. The County may
disapprove a potential respondent identified by River at Eastline Village in writing specifying the
grounds of disapproval, which shall not be arbitrary or capricious. The County may recommend to
River at Eastline Village one or more additional potential respondents from which proposals should be
solicited and River at Eastline Village shall solicit proposals from such potential respondents. River at
Eastline Village will consult with the County regarding River at Eastline Village's assessment of
proposals received, but final selection of an LIHTC investor or other Investor shall be the sole function
and responsibility of River at Eastline Village, based on demonstrated competitiveness of the selected
proposal under then-current market conditions in terms of pricing and related terms and conditions,
including pay-in schedule, required guaranties, and bridge financing, and demonstrated reliability of
performance in comparable transactions.
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4. River at Eastline Village shall ensure that the selected Investor understands the Project
Plan and River at Eastline Village's possible exit upon expiration of the Operating Deficit Guaranty
Period as set forth in this Agreement.
5. River at Eastline Village shall consult with the County regarding the terms of any
LIHTC or other Investor investment and obtain the County's consent to any terms which may
impact the County. Such terms would include payment of future cash flow, operating guarantees and
any options or right of first refusal.
6. Procuring all construction financing for the Project including any public funding.
7. Procuring all permanent financing of the Project, including public funding, with the
exception of HUD funding which must be procured by the County with River at Eastline Village's
assistance.
8. Maintaining all Project books of account and financial records of the Project in
accordance with HUD and other funding requirements.
9. Preparing and submitting to the County such financial reports relating to the Project
as the County may reasonably request.
10. Preparing all documents required in order to obtain HUD approval and to close
the transaction. River at Eastline Village shall diligently and in good faith seek to obtain HUD's
approval. All evidentiary materials for the Project shall be provided to the County for review,
approval, and submission to HUD, and no changes required by HUD shall be made without the County
approval.
11. Assisting the County in its preparation of the subsidy-layering analysis to ensure that
the Project is not over-subsidized.
12. Preparing any Total Project Cost calculations required by HUD.
13. Doing such other Financing Services as may be requested by the County or are
otherwise reasonable and necessary in connection with the Project, which may include assisting the
County in applying for HUD Rental Assistance Demonstration for the conversion of public housing to
Section 8.
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EXHIBIT A -STATEMENT OF WORK
ATTACHMENT 3- DESIGN/PLANNING SERVICES
River at Eastline Village shall, in its role as the architect, perform the following:
1. Oversee all Planning Services for the Project. The Planning Services shall include:
a. Collecting existing site data as required for adequate due diligence and in support
of design services, such as, survey, geotechnical, topographical, ownership of adjacent properties, etc.
b. Coordinating master grading, street abandonments or dedications and construction
of private utilities.
c. Conducting regular planning meetings with local professional consultants on the
revision of the existing master plan.
d. Preparing alternative Project plans and present them to the County for their
review and selection of the best approach.
e. Meeting with the County where the site is located, as well as the surrounding
neighborhood organizations and others the County requests to present the revised plan and obtain
feedback.
f. Making revisions to the plan, based upon community input and as required by
comments from regulatory and permitting agencies reviewing said plans, secure final approval from
the County and use the revised master plan going forward to revitalize the Project.
g. Preparing and submitting a preliminary site plan, as applicable, to the County where the
site is located for approval.
2. Preparing all budgets, schedules and contracts, including those with the contractors and
other parties working on the Project, with the advice and consent of the County.
3. Preparing a bidding package strategy, with the advice of the County, particularly but not limited
to Section 3, Section 504 for accessibility and energy efficiency.
4. Identifying and negotiating contracts with engineers, materials suppliers and other
contractors, subcontracting professionals and consultants as may be necessary to carry out the Project.
5. Applying for and obtaining all permits (including building and construction permits),
licenses, easements and approval necessary for the physical improvements contemplated by the Project
and maintaining in full force and effect any and all such permits and approvals.
6. Preparing and submitting all design documents, as defined by AIA document B-141, and
Project plans, critical path schedules, cost estimates, budgets, schedules, specifications, life cycle
analysis and design and Project documents to the County for review and approval.
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7. On an ongoing and timely basis, advising the County as to the status of the processing of all
applications necessary to obtain all governmental approvals required for the Project. Advising the
County as to any material hearings or meetings regarding the Project with sufficient advance notice
to enable the County to attend such hearings or meetings.
8. Monitoring the performance of all persons and entities that are to provide Design Services to
the Project and taking such actions as are necessary to maintain adherence to quality standards, the
Project Budget, and the Project Schedule.
9. Monitoring the approved Project Budget. River at Eastline Village shall develop and submit to
the County monthly cash flow reports and forecasts showing actual costs for activities in process
and estimates for uncompleted work. Monitoring, reviewing and certifying draw schedules.
10. Submitting written design and Project progress reports to the County monthly, in such form
as may be reasonably required, including all reports as may reasonably be requested by County and
which are of a nature generally requested or expected of construction managers or similar owner's
representatives on similar projects.
11. Performing all such other Design Services which are necessary in connection with the
Project.
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EXHIBIT A- STATEMENT OF WORK
ATTACHMENT 4-SITE PREPARATION SERVICES
River at Eastline Village shall or shall cause a Subcontractor to perform the following either pursuant
to this Agreement or an Additional Services Agreement as agreed to by the parties:
1. Prepare complete site preparation analysis, design and technical specifications
services through the completion of construction documents and a project manual that includes
agreements, general requirements and technical specifications.
2. Undertake all necessary site preparation, test borings, soil samples, geotechnical
analysis and other similar investigations in connection with the Project.
3. Perform the proposed construction scope of work and provide contract
administration services for this work in conformance with standards and recommendations described in
the civil engineering drawings and other applicable site construction documents as well as the mitigations
identified in the Environmental Review Record...
4. Clear the Existing Site and otherwise prepare the site as necessary to perform its
obligations hereunder.
5. Oversee all required demolition at the Existing Site as necessary to implement the
Project Plan.
6. Verify utility locations based on plats and coordinate site preparation requirements
with utility systems and providers for water, wastewater, storm water, natural gas, electricity and
telecommunications.
7. Obtain all necessary construction and/or temporary easements, rights of entry and
any other approvals required for the Project and infrastructure.
8. Design and construct all infrastructure, including roadways, sidewalks, curbs, gutters
and, if applicable, underground utilities necessary for the Project and satisfy all County requirements
for the infrastructure to be dedicated and accepted by the County where the Project is located.
9. Perform all such other Site Preparation Services which are necessary in connection
with the Project.
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EXHIBIT A- STATEMENT OF WORK
ATTACHMENT 5-CONSTRUCTION SERVICES
River at Eastline Village shall, in its role as the general contractor, perform the following:
1. Prepare all construction plans, budgets, schedules and contracts, including those with the
architect, contractors and other parties working on the Project. All such plans, budgets, schedules and
contracts and any material change thereto shall be subject to the review and approval of the County,
which approval shall not be unreasonably denied. The County and River at Eastline Village agree that
non-asbestos containing materials, where applicable, will be used during the Project. All site plans
submitted must include: (i) positioning of all improvements; (ii) identification of set-backs from lot lines;
grading plans; (iii) drainage plans; and (iv) utility locations. The construction plans and all revisions
and modifications thereto, shall be certified by an architect duly registered under the laws of the State
of Arizona. The construction plans must conform to all applicable legal requirements, including
ordinances of the County where the Project is located, all Environmental Laws, all State and local
building and fire codes, and the Fair Housing Act.
2. Prepare a bidding package strategy, all with the advice and consent of the County, and
assisting the County in preparing any necessary independent third party cost appraisal or cost
reasonable analysis as may be needed in order to obtain HUD approval of River at Eastline Village as
the general contractor.
3. Administer contracts with local engineers, contractors, subcontractors, materials
suppliers and other local professionals and consultants. River at Eastline Village shall place in all such
contracts provisions whereby each Subcontractor warrants its work from any and all potential
construction defects.
4. Apply for and obtain all permits (including building and construction permits),
licenses, easements and approvals necessary for the physical improvements contemplated by the Project.
5. Prepare and submit all construction plans, critical path schedules, cost estimates,
budgets, schedules, specifications, life cycle analyses and design and construction documents to the
County for review and approval, which approval shall not be unreasonably withheld.
6. Submit suggestions or requests for changes to the construction plans which could in
any reasonable manner improve the design, efficiency or cost of the Project.
7. On an ongoing and timely basis, advise the County as to the status of the processing of
all applications necessary to obtain all governmental approvals required for the Project, advising the
County as to any hearings or meetings regarding the Project with sufficient advance notice to enable the
County to attend such hearings or meetings.
8. Invite the County or its representative to all meetings with the construction contractor,
architect and other contractors. River at Eastline Village shall also ensure that the County or its
representative have access to the Project at all reasonable times to inspect the Project and the
progress thereof.
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9. Cause the construction and completion of the Project in accordance with this
Agreement, the Project Schedule and the Project Budget.
10. Monitor the performance of all persons and entities that are to provide materials,
equipment or services to the Project and take such actions as are necessary to maintain adherence to
quality standards, safety standards, production schedules, shipping dates, and job-site requirements.
11. Monitor the approved construction budget. River at Eastline Village shall develop and
submit to the County monthly cash flow reports and forecasts showing actual costs for activities in
process and estimates for uncompleted work. River at Eastline Village shall monitor, review and
certify construction draw schedules.
12. Submit written construction progress reports to the County monthly, in such form as
may be reasonably required.
13. Upon substantial completion of rehabilitation and/or construction and six months and
11 months after substantial completion, River at Eastline Village and the architect shall inspect the
work to determine and record the condition of the work. River at Eastline Village shall notify the
County of such inspection, and shall allow County representatives to accompany it on any such
inspection. River at Eastline Village shall insure the correction or replacement of faulty work.
14. Require that any warranties for construction work shall continue for a period of not
less than one year from the date of final acceptance of the work.
15. Construction work shall be performed in accordance with all applicable legal
requirements. Construction work shall be performed in good and workmanlike manner, free and clear of
all mechanic's, materialman's or similar liens and in accordance with good construction practices.
16. As a part of all construction work, River at Eastline Village shall equip any dwelling
units or cause the same to be equipped with all equipment and articles of personal property necessary
and appropriate for legal occupancy, including refrigerators and ranges, all in accordance with the
construction plans approved by the County.
17. River at Eastline Village shall take and/or cause others to take reasonable precautions
for the safety of, and shall provide reasonable protection to prevent damage, injury or loss to,
employees and other persons on and off-site where construction activities are underway. River at
Eastline Village shall take reasonable precautions for the safety and protection of the improvements,
materials and equipment to be incorporated therein, whether in storage on or off-site, under care,
custody or control of River at Eastline Village, contractors or any subcontractor. River at Eastline
Village shall further take precautions to protect the property of the County or others, whether or not
forming part of the improvements, located at a construction site or adjacent thereto in areas to which
River at Eastline Village has access.
18. Establish and implement appropriate administrative and financial controls for the
design and construction of the Project, including, but not limited to:
i. participating in conferences and rendering such advice and assistance as will
aid in developing economical, efficient and desirable designs and construction procedures in
connection with the Project;
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ii. reviewing all requests for payment under any architectural agreement,
general contractor's agreement or loan agreements with any lending institutions providing
funds for the benefit of the County for the design or construction of the Project;
iii. complying with all terms and conditions applicable to the Project contained
in any governmental permit or approval required or obtained for the lawful construction or
operation of the Project or in any insurance policy affecting or covering the Project, or in any
surety bond obtained in connection with the Project;
iv. furnishing such consultation and advice relating to the Project as may be
reasonably requested from time to time by the County;
v. giving or making approvals and payments provided for in the agreements
with any architect, general contractor, or other contractor, professional or consultant retained
for the Project;
vi. identifying local providers for Project and construction services; and
vii. filing any notices of completion required or permitted to be filed upon
the completion of any Project and taking such actions as may be required to obtain any
certificates of occupancy or equivalent documents required to permit the occupancy of units.
19. Perform all such other Construction Services which are necessary in connection with
the Project, including written progress reports for the County, funders, and financing partners.
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EXHIBIT A- STATEMENT OF WORK
ATTACHMENT 6-SOCIAL SERVICES
The River at Eastline Village and County recognize that the below-described social services are
important to the success of any revitalization, but that the sources of funding for such social services
are very scarce. The County with the assistance of River at Eastline Village shall use best efforts,
subject to available public funds, to obtain funding and service providers for the following services for
residents of the Project:
1. Finalize and install community self-sufficiency programs and processes that address
the significant expectations of resident customers as well as public/private sector
stakeholders. These supportive services shall include:
i. After school education assistance program a minimum of two hours each day
school is in session
ii. Computer training (at least once every two months)
iii. Quarterly financial literacy classes
iv. Job training (at least once every two months)
v. Resident services coordinator for a minimum of 40 hours per month
2. Attract private sector partners, maximizing private involvement, and integrating
government community economic participation incentives.
3. Enter into memoranda of understanding and/or agreements with local public and
private sector service providers and funding benefactors.
4. Facilitate and maintain well thought-out communications and outreach education
programs that encourage and heighten the involvement of resident customers,
community stakeholders, and resource Project/funding partners.
5. Establish procedures, processes, and tools for achieving maximum high-quality
resident self-sufficiency services and measurable resident customer and community
economic Project outcomes.
6. Design, develop and implement data collection and reporting instruments to
standardize program operations, monitor supportive service goal achievements as
well as facilitate periodic resident/customer input and customer satisfaction surveys.
7. Design approaches for case management of resident customers and coordinate
self- sufficiency programs for the residents.
8. Assist in the temporary or permanent relocation of the residents following construction
completion.
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EXHIBIT A- STATEMENT OF WORK
ATTACHMENT 7: PROJECT DESCRIPTION
Project Description:
The River at Eastline Village Project as described herein, will utilize HOME funds to construct a fifty-six
(56) unit multi-family rental housing project at 2102 E. Apache Boulevard in Tempe, Arizona (the
“Property”). The HOME funds, as well as low-income housing tax credit funds (“LIHTC”), are to be used
by River at Eastline Village to construct one (1) building containing fifty-six (56) units of affordable low-
income housing. The HOME funds provided under this Agreement will be used by River at Eastline
Village in conjunction with LIHTC that River at Eastline Village received in 2017. The River at Eastline
Village Project will benefit low-income families with an annual income at or below 60% of the median
area income (“AMI”). The funds will be used to construct two (2) HOME-assisted “floating” units at the
Property (“HOME-assisted units”). During the thirty (30) year Period of Affordability (as that term is
defined in the Agreement), the two (2) HOME-assisted “floating” units shall consist of: (a) one (1) one-
bedroom unit; and (b) one (1) three-bedroom unit. The term “floating” in this Agreement shall be defined
as set forth in 24 C.F.R. § 92.252(j). HOME regulation requires that projects with five (5) or more
HOME-assisted units shall have at least 20% of the HOME assisted units occupied by households whose
income is below 50% AMI. River at Eastline Village and the County agree that both HOME-assisted
units will be occupied by households at or below 50% AMI (very low income of the HOME Income
Limits). The income restrictions on the HOME-assisted units must be maintained during the entire Period
of Affordability.
Project Eligibility:
HOME Maximum Per–Unit Subsidy – The total amount of HOME funds invested on a per-unit basis in
affordable housing may not exceed the per-unit dollar limitations established under Section 221(d)(3)(ii)
of the National Housing Act (12 U.S.C. 17151(d)(3)(ii)) for elevator-type projects that apply to the area in
which the housing is located. See Exhibit A, Attachment 11: Maximum per Unit Subsidy Limits
Property Standards - Housing that is constructed or rehabilitated with HOME funds must meet all
applicable local codes, rehabilitation and construction standards, ordinances, and zoning ordinances,
including Section 504 of the Rehabilitation Act of 1973 and Fair Housing Act, as amended, at the time of
project completion. All work will meet decent, safe and sanitary housing standards consistent with
HOME regulations including HUD Housing Quality Standards and Maricopa County Housing
Rehabilitation Standards. These standards are available on the Maricopa County website under Housing
& Community Development or upon request.
Occupancy Requirements – The River at Eastline Village’s staff will determine and verify income
eligibility of tenants for the HOME assisted-units prior to occupancy of a unit. The occupancy of the
HOME-assisted units must be by households whose income is at or below 50% AMI (very low income)
throughout the Period of Affordability; see Exhibit A, Attachment 12: HOME Income and Rent
Limits. River At Eastline Village will define “Annual Income” as it is defined at 24 C.F.R. Part 92 and
will document sources of income and examine eligibility on an annual basis in order to meet requirements
of HOME regulations at 24 C.F.R. Part 92.203. Additional guidance and resources are outlined in Exhibit
A, Attachment 14: Annual Income Documentation.
Rental Requirements - The HOME-assisted units will be designated as Low HOME units, which are
outlined in Exhibit A, Attachment 12: HOME Income and Rent Limits. Utility Allowances are
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outlined in Exhibit A, Attachment 13: Utility Allowances. The Low HOME rent limit is the maximum
rent allowed for a HOME-assisted unit; the maximum rent amount includes the utility allowance. The
initial rents for the HOME-assisted units shall be the lesser of the HOME rent limits provided in Exhibit
A, Attachment 12 or the rents limits established by the State of Arizona for the Low Income Housing
Tax Credit program which River at Eastline Village is receiving funding from for the River at Eastline
Village Project. Any increase in the lesser of these rent limits must be approved by HUD and the State of
Arizona Department of Housing. You will provide to us a written request for the increase in rent limits
and supporting documentation for the justification of this request.
Affordability Period – You will ensure that all housing assisted under this Agreement meets the affordability
requirements of 24 C.F.R. § 92.254 or § 92.252, as applicable.
Match - There is a 25% match requirement for HOME funds (amount listed in Exhibit A, Attachment 8:
Budget). The HOME funds provided under this Agreement are subject to the matching contribution required
under 24 C.F.R. § 92.218. River at Eastline Village will supply match information as a part of the payment
procedures and claims for reimbursement set forth in the Agreement; see Exhibit C, Attachment 4: Match
Log Form. The match will be verified through required documentation and monitoring by the County.
Deliverables
Beneficiaries
Number of households (units) 2
Number of people (approximate) 5
Use of HOME Funds - The HOME funds provided under this Agreement shall be used for “Hard Cost(s)”
only. Hard Cost(s) for the purposes of this Agreement are labor and material costs that directly
deal with construction, reconstruction, rehabilitation or installation of improvements. Hard Costs
are building construction materials and construction labor only. Hard Costs do NOT include costs
associated with the acquisition, leasing, or rental of the land and/or buildings for the River at Eastline
Village Project.
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EXHIBIT A- STATEMENT OF WORK
ATTACHMENT 8: BUDGET
RIVER AT EASTLINE VILLAGE
New Construction/Rental
Maricopa County Project
Construction Period of May 1, 2018-April 30, 2019
56-UNIT AFFORDABLE HOUSING FUNDS
Sources Total
Maricopa County – HOME Loan $300,000
JPMorgan Chase Bank, N.A. Loan $12,700,000
Permanent-JPMorgan Chase Bank, N.A. Loan $1,000,000
Arizona Department of Housing Loan $335,742.00
Housing Authority of Maricopa County Loan $500,000
LIHTC Equity $14,248,575
$29,584,317
HOME ELIGIBLE EXPENSES
Item Expense
“Hard Cost” Construction (labor and materials for the $300,000
construction and rehabilitation of buildings) of two (2)
HOME-assisted units of affordable housing.*
HTF Match Expenses $75,000
Match Requirements – River at Eastline Village’s matching funds requirement is $75,000. This non-
federal funds match requirement must be met using funds provided through volunteer hours for
construction, professional services, property tax abatements, donated materials, family sponsorships, and
direct salary/employee related expenses supported by non-federal dollars.
All match contributions shall be approved by the County prior to submittal of any claim for the
reimbursement of expenses. Failure to meet the match contributions may result in River at Eastline
Village being denied a claim for the reimbursement of expenses.
HOME funds will only be reimbursed for Hard Cost(s) which for the purpose of this Agreement are
defined as labor and material costs that directly deal with construction, reconstruction, rehabilitation or
installation of improvements. Hard Costs are for building construction materials and construction labor.
Hard Costs do NOT include costs associated with acquisition, leasing, or rental of the land or buildings
for the River at Eastline Village Project.
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EXHIBIT A- STATEMENT OF WORK
ATTACHMENT 9: PROJECT SCHEDULE
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EXHIBIT A- STATEMENT OF WORK
ATTACHMENT 10: BUDGET AMENDMENT REQUEST FORM
Please complete the form below to be considered for an Agreement amendment under the
Maricopa County HOME program guidelines. This form must be completed for each type of
amendment requested.
Requested Amendment for: HOME Investment Partnerships Funds
Project Number Grantee
Program Representative
Person Completing Form
Contact Number
Extension of Contract End Date
Original Contract End Date
Current Contract End Date (including approved extensions)
Proposed Contract End Date
Proposed grant funds to be carried From Program
$
over Year:
*Required Attachment
A revised implementation schedule showing when major milestones will be completed for each
activity.
Change in Proposed Accomplishments (Please explain below)
Original Proposed Changes
Project Summary
Provide a one-sentence summary of
the activity for which you are
requesting funds.
Primary Target
Group of Beneficiaries
Estimated Number
Benefited
No. of People
No. of Housing Units
Other
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Amendment to Scope of Work
Please include a description of the Original Scope of Work.
Please include a description of Proposed Amendment(s).
Budget Amendment
Any increase to total original grant amount requires Board of Supervisor’s Approval. No
attachments are required, but budget information must be included below.
Original Approved Budget Proposed Amended Budget
Funds Total Funds Funds Total Funds
**Please include the following for the amendment requested:
1. Identify the reasons for the proposed amendment(s).
2. Steps being taken to avoid any future amendment requests for the same reasons
3. If additional local matching funds are required as a result of this amendment, please attach
certification that such funds are available.
I approve the amendment(s) requested to be incorporated into our current agreement. All other
provisions of the agreement shall remain unchanged.
Authorized Signature Date
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FOR OFFICE USE ONLY
Recommended for Approval
Not Recommended for Approval due to: _______________________________________
________________________________________ ____________________________
Staff Signature Date
________________________________________ ______________________________
Staff Supervisor Signature Date
________________________________________ ______________________________
Community Development Assistant Director Date
Signature
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EXHIBIT A- STATEMENT OF WORK
ATTACHMENT 11: MAXIMUM SUBSIDY LIMIT
Maricopa County Human Services Department
Housing and Community Development
2018 Information Bulletin
Information Bulletin No.: 2018-01
Issued: March 28, 2018
Re: HOME Investment Partnerships Program (HOME)
New 2017 HOME Maximum Per-Unit Subsidy Limits Released
Notice is given to Maricopa HOME Consortium participating jurisdictions (PJ) and CHDOs that the U.S. Department
of Housing and Urban Development (HUD) released new HOME Per-Unit Subsidy Limits. This limit determines the
maximum amount of HOME funds that may be invested on a per-unit basis in HOME-assisted housing projects.
PJs/CHDOs should use the below maximum per-unit HOME subsidy limits for all HOME assisted project activities,
effective November 7, 2017.
*Note per HUD: The new limits are retroactively effective as of November 7, 2017, and must be used for all HOME-
assisted projects receiving commitments via written HOME Agreements, on or after that date. These limits apply to
new construction and rehabilitation projects with/or without acquisition; and project types including multi-unit
rental (permanent and transitional housing), homeownership assistance and even owner-occupied rehabilitation
projects, irrespective of whether or not the property contains an elevator.
Bedroom Size HOME Maximum Per-Unit Subsidy Limits
Effective November 7, 2017
0BR $ 144,050
1BR $ 165,134
2BR $ 200,801
3BR $ 259,774
4BR+ $ 285,149
Note: PJs and CHDOs must also be aware of and continue to separately apply the HOME Homeownership Value
Limits (“95% Limits”). For current Maricopa HOME Consortium limits, refer to additional Maricopa County
Information Bulletins here: https://www.maricopa.gov/3893/Funding-Notices-Bulletins
Background:
In an email to all PJs on March 19, 2018, HUD released the “New 2017” HOME Maximum Per-unit Subsidy Limits
computed above which apply to All HOME PJs under the San Francisco Regional Office and LA Field Office,
including Arizona. These limits have been computed using the 2017 Section 234 Condominium Elevator Base Limits
(by bedroom size) as published by HUD-Multifamily in the Federal Register on November 7, 2017, which are then
individually multiplied by the maximum HOME High Cost Percentage threshold of 240%.
More information can be found here: https://www.hudexchange.info/resource/2315/home-per-unit-subsidy/
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EXHIBIT A- STATEMENT OF WORK
Attachment 12: HOME Income and Rent Limits
Please request updated HOME income rent limits from the Maricopa County Housing & Community
Development department on an annual basis as these limits are adjusted annually by the U.S. Department
of Housing & Urban Development (HUD) or go to HUD’s website for the updated versions each year.
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EXHIBIT A- STATEMENT OF WORK
Attachment 13: Utility Allowances
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EXHIBIT A- STATEMENT OF WORK
ATTACHMENT 14: ANNUAL INCOME DOCUMENTATION
Source Documentation - The HOME regulations at 92.203(a) Require the income eligibility of
applicants to be determined by examining source documentation which provides evidence of annual
income, such as: wage statements, interest statements, and unemployment compensation statements.
HUD-approved forms are available in the HOME Front's Sample Forms module, which can be accessed
through the following link: http://www.hud.gov/offices/cpd/affordablehousing/library/forms/
River at Eastline Village shall obtain and keep as a part of its records required under the Agreement the
following documents from the applicant for all HOME-assisted units. These documents shall be used in
the determination of the gross annual income of the applicants.
 Three (3) months of most recent pay stubs
(For everyone in the household 18 years and older)
 Three (3) months of recent bank statements for all asset/cash accounts (all pages)
 Federal Income Tax returns and W-2 (most recent year)
 Picture ID for applicants
 Social Security Card for applicants (Those with work only must bring residence card)
 Documentation of divorce decree all pages (if applicable)
HUD’ Affordable Housing Income Calculator - HUD's Income & Allowances Calculator is an
interactive tool that makes determining the income eligibility and assistance amounts for applicants to
HUD programs easy for agencies to calculate. The agency will enter the requested data and this calculator
will work behind the scenes to generate a summary of results for each applicant. You can then print out
the summary and include it as part of the applicant's file. HUD’s Income & Allowances Calculator can be
accessed through HUD’s website at the following link:
http://www.hud.gov/offices/cpd/affordablehousing/training/web/calculator/calculator.cfm
It is the responsibility of the River at Eastline Village to ensure that the determination of gross income has
been calculated according to the HOME program rules and guidelines. Information on how to determine
the gross income of applicants can be found on the following website.
For further questions on income determination, contact the Maricopa County Human Services
Department, Housing and Community Development Division and speak with the HOME Program
Manager.
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EXHIBIT B- SECURITY INSTRUMENTS FOR EXECUTION AND RECORDING
ATTACHMENT 1: DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS;
DEED OF TRUST; PROMISSORY NOTE; AGREEMENT TO SUBORDINATE TO THE RAD USE
AGREEMENT; SUBORDINATION AGREEMENT
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WHEN RECORDED, RETURN TO
Maricopa County
Attn: Human Services Department
234 N. Central Ave. Ste. 300
Phoenix, AZ 85004
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
HOME Investment Partnerships Program
Effective this _____ day of ___________, 2018, The River at Eastline Village, LLC, a Wisconsin limited
liability company ("Declarant"), hereby agrees to bind itself, its successors and assigns and the Project in
accordance with this Declaration of Covenants, Conditions, and Restrictions (“the Declaration”), for the
benefit of the Maricopa County, a body politic and corporate, by and through the Human Services
Department, an agency of the Maricopa County, (collectively “County”) together with any successor
and/or assignees to its rights, duties and obligations.
RECITALS
A. The County has been authorized pursuant to Arizona Revised Statutes §11-251 et seq. to, among other
things, facilitate development of affordable housing in Arizona by providing funding for property
development through loans and grants.
B. The Project that is the subject of this Declaration is more fully described in Attachment 1, below.
C. Declarant applied to the County for funding for the Project; and the County relied on the
representations made in the Declarant's application for funding including any documents, materials,
reports, appraisals or studies, provided by Declarant in support of the application for funding.
D. As consideration, in part, for funding awarded to the Declarant by the County, the Declarant agrees
to bind the Project and otherwise abide by the covenants, restrictions, duties and obligations set forth in
this Declaration.
E. Among other things, this Declaration describes use restrictions on the Project necessary to comply
with the specific program requirements for the source of funding provided by the County to the Project,
including without limitation the HOME Program and other funding programs administered by the
County.
F. The Declarant agrees that execution and recordation of this Declaration is a material condition to the
County’s agreement to provide funding to the Project and that the use of the Project shall be restricted for
the term of this Declaration.
AGREEMENT
NOW, THEREFORE, the Declarant, under the terms of this Declaration, intends, declares, acknowledges,
and covenants for itself, its successors and assigns that the warranties, covenants, obligations, and duties
set forth herein, are covenants running with the Project for the term stated herein and as follows:
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1. Incorporation. The above recitals are incorporated herein and are part of this Declaration.
2. Definitions. The capitalized terms used in this Declaration shall be understood as follows:
“Affordability Period” means the term of this Declaration which shall begin on the date of County’s
acceptance of the HUD completion report, which shall be submitted after first occupancy of the last
rented HOME assisted unit and terminate on the thirtieth anniversary (30 years) from the date of the
County’s acceptance of the report.
“Adjusted Income”, “Annual Income”, “Monthly Adjusted Income”, “Monthly Income” mean the income
amounts as determined by the County in accordance with the definitions of these terms in 24 C.F.R. Pt. 5,
subpart F.
“County” or “Beneficiary” means the Maricopa County by and through the Human Services Department
as the context requires.
“County Guidance” means guidance provided from time to time by the County relevant to multifamily
rental development programs that it administers.
“Date of Completion” means the date upon which the project is certified for occupancy, regardless of
whether the units are occupied.
“Fair Market Rent” means the fair market rent determined from time to time by HUD for existing
housing for comparable units in the area in accordance with 24 C.F.R. Pt. 888.111.
“Fixed Unit” means the specific units of a Project that have been permanently designated as “County-
Assisted Units” throughout the Affordability Period.
“Floating Units” means that the total number of County-Assisted Units in the Project is fixed for the
Affordability Period, but that the Declarants may from time to time change the designation of individual
units from a County-Assisted Units to a market-rate units so long as the total number of County-Assisted
Units and the Unit Mix at all times conform to the requirements of this Declaration.
“High HOME Rent” means a rent that does not exceed the area 65% rent limit, as determined by HUD,
with a utility allowance deduction, approved by the County, for all utility costs to be paid by the tenant.
“HOME Program” means the HOME Investment Partnerships Program administered by the U.S.
Department of Housing and Urban Development (“HUD”). The HOME Program is authorized under
Title II of the Cranston-Gonzalez National Affordable Housing Act, as amended, which is codified at 42
U.S.C. § 211 et seq., along with the implementing regulations at 24 C.F.R. Pt 92 and described by other
relevant federal guidance.
“Lender” means any provider of funds through a loan or grant, including a government lender other
than the County, for the purpose of developing the Project. “Lender” does not include an equity investor
in the Project.
“Loan Documents” means the Promissory Note, Deed of Trust, and other documents executed by the
Declarants in favor of the County for the purpose of memorializing and securing loans or grants of
financial assistance by the County for the Project.
“Low-Income Households” means families whose annual incomes do not exceed 60 percent of the
median income for the area, as determined by HUD.
“Low HOME Rent” means a monthly rent amount that does not exceed the area 50% rent limit, as
determined by HUD, with a utility allowance deduction, approved by the County, for all utility costs to
be paid by the tenant.
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“Market-Rate Units” means residential rental units other than State-Assisted Units.
“Project” means, pursuant to that certain ground lease by and between the Housing Authority of
Maricopa County (the "Landlord") and Declarant dated __________, 2018 (the "Lease") the leasehold
interest in the project real property, including all buildings, improvements, and fixtures thereto, that are
under common ownership and control, located within the County of Maricopa at 2102 E. Apache
Boulevard, Tempe, AZ 85281 and commonly known as The River at Eastline Village that is more
specifically described in the Legal Description attached to this Declaration as Attachment 1.
“Qualified Allocation Plan” means the plan prepared by the County in accordance with Section 42(m) of
the Internal Revenue Code and as approved by the governor from time to time.
“Section 8” means the program or holders of a voucher of family participation in the program described
under Section 8 of the Housing Act of 1937 (see 24 CFR Pt. 982, the Housing Choice Voucher Program).
“County-Assisted Unit” means those two (2) Floating Units deemed to be assisted with County HOME
funds and designated as County-assisted. The term County-Assisted Unit is synonymous with the term
“HOME-assisted unit” pursuant to Part 92 of title 24 of the Code of Federal Regulations.
“County HOME funds” means funds made available by the County through either the HOME Program
through allocations and reallocations, plus all matching funds, repayments and interest or other return on
the investment of these funds; and/or Housing Trust Funds made available through A.R.S. 41-3953 and
A.R.S. 41-3955; or other nonfederal funds provided through the County.
“Utility Allowance” means the monthly utility allowance authorized by the County in accordance with
applicable program requirements for use in determining the maximum amount of rent allowable on a
County-Assisted Unit.
“Very Low-Income Household” means households whose annual incomes do not exceed 50 percent of
the median household income for the area, as determined by HUD with adjustments for smaller and
larger households, except that HUD may establish income ceilings higher or lower than 50 percent of the
median for the area on the basis of HUD findings that such variations are necessary because of prevailing
levels of construction costs or fair market rents, or unusually high or low family incomes.
3. Use Restrictions. The Declarant covenants that for the term of this Declaration, the Project shall be
used as a multifamily rental as follows:
a) Program Requirements. The Project shall comply with all applicable program requirements during
the term of this Declaration.
i) All HOME Program requirements apply to Projects financed with HOME Program funds. Other
applicable federal requirements are identified in the Funding Agreement.
ii) HOME Program requirements specifically identified in this Declaration and the Funding
Agreement also apply to Projects financed solely with nonfederal funds.
iii) Conflict. In the event that rules and regulations of multiple funding programs including the Low
Income Housing Tax Credit program described by 24 U.S.C. § 42 apply, the Project must comply with
the strictest of the applicable rules and regulations.
b) Affordability Restrictions. The income and rent restrictions described in Attachment 3 shall apply to
all County-Assisted Units. During the Affordability Period Declarant will maintain the County-
Assisted Units as rental housing and rent or hold available for rental each County-Assisted Unit on a
continuous basis.
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c) Physical Condition Standards. During the Affordability Period, the Declarant must maintain the
project suitable for occupancy; and, in decent, safe, and sanitary condition and good repair in
accordance with the applicable health, safety, and building codes and federal physical conditions
standards described in 24 C.F.R. Pt. 92.251 or such other physical conditions standards as may be
adopted by HUD from time to time. Physical condition standards apply to the entire Project rather
than solely to the County-Assisted Units.
4. Tenants’ Rights. The Declarant shall abide by the following requirements when renting any County-
Assisted Unit:
a) Lease. Tenant leases shall be in writing, signed by the Declarant or the Declarant’s agent and the
tenant, and for a term of not less than twelve (12) months or for such other term by written mutual
agreement between the tenant and the Declarant.
b) Prohibited Residential Lease Terms. The following terms and provisions are prohibited in any lease
or agreement for a County-Assisted Unit:
i) Agreement to be sued. Agreement by the tenant to be sued, to admit guilt, or to a judgment in
favor of the Declarant in a lawsuit brought in connection with the lease;
ii) Treatment of the Tenant personal property. Agreement by the tenant that the Declarant may take,
hold, or sell personal property of household members without notice to the tenant and a court
decision on the rights of the parties. This prohibition, however, does not apply to an agreement by
the tenant concerning disposition of personal property remaining in the housing unit after the tenant
has moved out of the unit. The Declarant may dispose of this personal property in accordance with
Arizona law;
iii) Excusing Declarant from Responsibility. Agreement by the tenant not to hold the Declarant or the
Declarant's agents legally responsible for any action or failure to act, whether intentional or negligent;
iv) Waiver of Notice. Agreement of the tenant that the Declarant may institute a lawsuit without
notice to the tenant;
v) Waiver of Legal Proceedings. Agreement by the tenant that the Declarant may evict the tenant or
household members without instituting a civil court proceeding in which the tenant has the
opportunity to present a defense, or before a court decision on the rights of the parties;
vi) Waiver of a Jury Trial. Agreement by the tenant to waive any right to a trial by jury;
vii) Waiver of right to appeal court decision. Agreement by the tenant to waive the tenant's right to
appeal, or to otherwise challenge in court, a court decision in connection with the lease; and
viii) Tenant Chargeable With Cost of Legal Actions Regardless of Outcome. Agreement by the tenant
to pay attorney's fees or other legal costs even if the tenant wins a court proceeding by the Declarant
against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses.
c) Termination of Tenancy: Declarant may not terminate the tenancy or refuse to renew the lease of a
tenant of a County-Assisted Unit as specified herein except for: serious or repeated violation of the
terms and conditions of the lease; for violation of applicable federal, state, or local law; or for other
good cause. Any termination or refusal to renew must be preceded by the Declarant's service upon
the tenant of a written notice specifying the grounds for the action, which notice must be delivered to
the tenant at least 30 days before the termination or refusal to renew is to be effective. Declarant may
immediately terminate a lease in accordance with A.R.S. § 1368 (2) unless the Project is funded with
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HOME Program funds and applicable HOME Program regulations prohibit immediate termination
of the lease.
d) The form of lease for any County-Assisted Unit in the Project shall provide for immediate
termination of the lease and eviction in accordance with Arizona Revised Statues for failure to meet
tenant income limits as a result of any material misrepresentation made by the tenant or prospective
tenant with respect to the income certification, or any material misrepresentation made in conjunction
with execution of the lease or the failure by such tenant to execute an income certification at least
annually.
e) Residential rental units in the Project will be rented or available for rental to the public on a
continuous basis and no tenant shall be evicted without cause.
f) No prospective tenant shall be denied occupancy solely because the person holds a Section 8 voucher
or certificate.
5. Tenant Selection. The Declarant must adopt written tenant selection policies and criteria for County-
Assisted Units that:
a) are consistent with the purpose of providing housing for very low-income and low-income families;
b) are reasonably related to program eligibility and the applicant's ability to perform the obligations of
the lease;
c) provide for the selection of tenants from a written waiting list in the chronological order of their
application, insofar as is practical; and
d) provide for the prompt written notification to any rejected applicant of the grounds for any rejection;
and,
e) provide affirmative fair housing marketing procedures as described in Attachment 4 to this
Declaration.
6. Term of Declaration
a) The Affordability Period and this Declaration shall terminate 30 years from the date of initial
occupancy of the last HOME assisted unit.
b) The warranties, covenants, obligations, and duties described in this Declaration shall commence on
the date of execution of this Declaration and shall continue in effect during the full term of this
Declaration.
c) In the event of transfer of the Project as the result of a judicial foreclosure, trustee’s sale, or by deed in
lieu of foreclosure to the holder of a legal interest in the Project that is senior in time or right to the
County, the warranties, covenants, obligations, and duties described in this Declaration shall
terminate.
7. Monitoring and Enforcement. County shall conduct periodic monitoring and review of the Project for
the purpose of determining compliance with applicable program requirements and this Declaration.
Monitoring and review includes on-site inspections and review of documents supplied to the County by
the Declarant or others on behalf of the Declarant or the Project.
a) Entry and Inspection. The Declarant shall permit, during normal business hours and upon reasonable
notice, any duly authorized representative of the County to conduct on-site inspections of the Project
land and improvements and to inspect any facility, document book, and record of the Declarant
relating to the Project.
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b) Certifications. By March 15th of each year, the Declarant will submit such certifications as may be
identified in the Funding Agreement, in County Guidance, or otherwise required by the County.
c) Books and Records. The Declarant shall keep and maintain at the Project all documents, books, and
records required by the Funding Agreement, applicable program requirements, and County
Guidance.
d) Information. The Declarant shall submit any other information, documents or certifications that the
County shall deem reasonably necessary.
8. Breach. The Declarant covenants and agrees to inform the County by written notice of any breach of
the Declarant's obligations hereunder within five (5) business days of first discovering any such breach.
Violations shall be cured within the deadlines described in paragraph 9, below. If any such breach is not
corrected to the satisfaction of the County within the cure period, the County may, without further notice,
declare a default under this Declaration, and the County may apply to any court, state or federal, for any
of the remedies described in paragraph 9 of this Declaration.
9. Remedies. Subject to the written requirements of the Deed of Trust of even date with this Declaration,
and an agreement between a Lender and the County, if any, in the event that Declarant breaches any
warranty, covenant, obligation, or duty set forth in this Declaration, and if such breach remains uncured
for a period of sixty (60) calendar days after notice thereof by the County, the County shall be entitled to
any or all of the remedies described below:
a) If the County determines that the Declarant has taken and diligently, continually, and in good faith
continues corrective action and that the breach cannot be corrected within the 60-day cure period, the
County may, in its sole discretion, allow the Declarant such additional time as may be reasonably
necessary to cure the breach;
b) In the event of an uncured breach the County may:
i) demand return of all funds provided by the County to the project, plus interest at the default rate
described in the Loan Documents, and/or an amount attributable to the increase in equity in the
Project attributable to the infusion of any County HOME funds for any purpose; resort to any court
having jurisdiction of the subject matter for specific performance of this Declaration, for an injunction
against any violation of this Declaration, for an accounting, for the appointment of a receiver to take
over and operate the Project in accordance with the terms of this Declaration, the Loan Documents,
and program requirements, or for initiation of foreclosure proceedings; or such other relief as may be
appropriate, it being acknowledged by Declarant that the beneficiaries of Declarant's obligations
hereunder cannot be adequately compensated by monetary damages in the event of Declarant's
breach of this Declaration, because the beneficiaries include the low-income families to be benefited
by the funds invested by the County to the Project.
ii) The County shall be entitled to reimbursement of reasonable attorneys' fees and all costs incurred
in any judicial action in which the County shall prevail.
iii) The County may require reasonable assurances of security for repayments required pursuant to
this section in the form of a guaranty or appropriate amendments, revisions, or additions to the Loan
Documents, or in the event that there are no Loan Documents by execution and recording of a deed
of trust in a form satisfactory to the County as Beneficiary.
c) The Declarant and the County each acknowledge that the primary purpose for requiring compliance
by the Declarant with the restrictions provided in this Declaration are to assure compliance of the
Project and the Declarant with the program requirements, AND BY REASON THEREOF, THE
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DECLARANT IN CONSIDERATION FOR RECEIVING COUNTY HOME FUNDS FOR THIS
PROJECT HEREBY AGREES AND CONSENTS THAT THE COUNTY AND THE LOW-INCOME
TENANT(S) (WHETHER PROSPECTIVE, PRESENT OR FORMER OCCUPANTS OF THE PROJECT)
(OR EITHER OR ALL OF THEM) SHALL BE ENTITLED, FOR ANY BREACH OF THE PROVISIONS
HEREOF, AND IN ADDITION TO ALL OTHER REMEDIES PROVIDED BY LAW OR IN EQUITY,
TO ENFORCE SPECIFIC PERFORMANCE BY THE DECLARANT OF ITS OBLIGATIONS UNDER
THIS DECLARATION IN ANY ARIZONA STATE COURT OF COMPETENT JURISDICTION, the
Declarant hereby further specifically acknowledging that the beneficiaries of the Declarant's
obligations hereunder cannot be adequately compensated by monetary damages in the event of any
default hereunder.
d) Notwithstanding anything to the contrary contained in this Declaration, Declarant's investor
member shall have the opportunity, but not the obligation, to cure any breach hereunder on the same
terms and conditions as the Declarant. Such cure shall be treated as if tendered by the Declarant.
10. Representations, Covenants and Warranties of Declarant. The Declarant hereby warrants and
covenants that the warranties, covenants, and declaration of obligations and duties set forth herein may
be relied upon by the County and all persons interested in Project compliance under the program
requirements. In performing its duties and obligations hereunder, the County may rely upon statements
and certificates of the Declarant pertaining to occupancy of the Project. In addition, the County may
consult with counsel, and the authorization and protection in respect of any action taken or suffered by
the County hereunder in good faith and in conformity with the opinion of such counsel shall be
applicable to the County's reliance upon such opinion of counsel. The Declarant further represents,
covenants and warrants to the County that:
a) The River at Eastline Village, LLC:
(i) is a limited liability company duly organized under the laws of the State of Wisconsin and
qualified to contract business within the State of Arizona pursuant to Title 29, Arizona Revised
Statutes;
(ii) has the power and requisite authority to own its properties and assets as owned, where owned,
and to carry on its business as now being conducted (and as now contemplated) by this Declaration
and the Loan Documents; and
(iii) has the full legal right, power, and authority to execute and deliver this Declaration and the Loan
Documents and to perform all undertakings of the Declarant hereunder.
b) The execution and performance of this Declaration and the Loan Documents by the Declarant:
(i) will not violate or, if applicable, have not violated any applicable provision of law, rule or
regulation, or any order of any court or other governmental agency;
(ii) will not violate or, if applicable, have not violated any provision of any indenture, declaration,
mortgage, mortgage note or other instrument to which the Declarant is a party or by which it or the
Project is bound;
(iii) will not result in the creation or imposition of any prohibited lien, charge or encumbrance of any
nature.
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c) The Declarant will, at the time of execution and delivery of this Declaration, have good and
marketable title to the real property and improvements constituting the Project free and clear of any
lien or encumbrance (subject to the Permitted Encumbrances identified in the Loan Documents).
d) There is presently no action, suit or proceeding at law or in equity or by or before any governmental
instrumentality or other agency now pending, or, to the knowledge of the Declarant, threatened
against or affecting it, or any of its properties or rights, which, if adversely determined, would
materially impair the Declarant's rights to carry on business substantially as now conducted (and as
now contemplated) by this Declaration and the Loan Documents or which would materially,
adversely affect its financial condition. Neither the Declarant nor its principals, shareholders,
managers, members or general partners, as the case may be, have any judgment entered against them
which would, when recorded, constitute a lien against or otherwise impair the security of the Project.
e) The Project as constructed and operated complies with program requirements and that the County-
Assisted Units of which will be rented or available for rental on a continuous basis to members of the
general public as further restricted by Attachment 3 hereto. The Project consists of one or more
proximate buildings or structures containing one or more similarly constructed accommodations
containing separate and complete facilities for living, sleeping, eating, cooking and sanitation and
facilities which are functionally related and subordinate to such accommodations.
f) No actions will be taken by the Declarant which will in any way adversely affect the use of the
Project.
g) To the extent that the Project involves rehabilitation of existing residential rental units, relocation of
tenants complies with all the requirements of the Uniform Relocation Act.
h) The Project is in full compliance with the requirements of the Fair Housing Act Design Standards.
i) Declarant has read and is familiar with the applicable provisions of the HOME Program, the Funding
Agreement, the Qualified Allocation Plan, and relevant federal guidance and County Guidance that
describe the obligations and duties of the Declarant to construct or rehabilitate, operate, and maintain
the Project.
j) Declarant reviewed the terms and conditions of this Declaration and notified all Lenders that
execution of this Declaration is a material condition of the County’s agreement to provide funding to
the Project.
k) Release and Indemnification. The Declarant warrants, covenants and agrees that it has not relied
upon or sought any information from the County, its successors and/or assigns, its agents, counsel or
employees in conjunction with the application for, or award of funding for the Project. In conjunction
with the Declarant’s application for funding through the County, the Declarant acknowledges and
agrees for itself and on behalf of any of its partners, limited partners, special limited partners,
members, special members or any other constituent entity of the Declarant, and the Declarant’s
successors and assigns that it shall hereby release the County, its agents, counsel and employees from
any claim, loss, demand or judgment as a result of the provision of funding of the Project or the
recapture of such funding by HUD, including any interest and penalties thereon; and the Declarant
hereby further agrees for itself, and on behalf of any of its partners, limited partners, special limited
partners, members, special members or any other constituent entity of Declarant, and its successors
and assigns to indemnify the County, its agents, counsel and employees from any claim, loss,
demand or judgment, to include reasonable attorney's fees in the event of the decision of HUD to
recapture of funds provided by the County. Furthermore, Declarant, and its successors and assigns to
indemnify the County, its agents, counsel and employees from any claim, loss, demand or judgment,
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to include reasonable attorney's fees as a result of or arising out the ownership, operation,
management or any other activities undertaken pursuant to this Declaration.
11. Declarant's Obligations and Duties
a) Declarant agrees that it will not knowingly take or permit to be taken any action which would have
the effect, either directly or indirectly, of subjecting the Declarant or the Project to non-compliance
with program requirements. Moreover, Declarant agrees to take any lawful action (including
amendment of this Declaration as may be necessary in the opinion of the County) to comply fully
with pertinent law and with all applicable rules, rulings, policies, procedures, regulations or other
official statements promulgated or proposed by HUD from time to time pertaining to Declarant's
obligations under the program regulations.
b) Declarant agrees that it will not cause or acquiesce in its voluntary or involuntary dissolution or
otherwise fail to correct within 90 days after legal notice thereof, any breach of, violation of, or
practice that is materially inconsistent with laws of the State of Arizona or other jurisdiction in which
Declarant is organized relating to the regulation and formation of business entities, or the Declarant’s
Articles, Bylaws, or other such writing setting forth the formalities and requirements of Declarant’s
form of organization.
c) Declarant agrees not to discriminate on the basis of race, creed, color, sex, age, handicap, marital
status, or national origin in the leases for occupancy of the Project or in conjunction with the
employment or application for employment of any person or persons for the operation and
management of said Project, except as provided in Attachment 3.
d) Religious Organizations. During the Affordability Period, the Project will not be provided for rental
or use to any primarily religious organizations, such as churches, for any activity including secular
activities. The Project must be used exclusively by the Declarant’s entity for secular purposes,
available to all persons regardless of religious affiliation. In particular, there must be no religious or
membership criteria for tenants of the Project.
e) Affirmative Marketing. During the Affordability Period specified herein, Declarant shall comply with
the Affirmative Marketing Procedures more fully described in Attachment 4.
f) As a condition of occupancy, the Declarant shall require each applicant for tenancy of a County-
Assisted Unit to certify in writing to the County that the person’s sources and amount of income
declared for the purposes of program eligibility are true and correct. Existing tenants of County-
Assisted Units shall be required to certify the same to the County annually. In addition, the Declarant
shall require each applicant for tenancy to provide whatever other information, documentation, or
certifications deemed necessary by the County to verify the tenant’s eligibility for occupancy of a
County-Assisted Unit.
g) During the term of this Declaration, Declarant shall comply with all federal, state and local laws,
codes, ordinances, rules and regulations, conditions, and assurances, and shall keep and maintain in
effect at all times any and all licenses, permits, notices, and certifications which may be required with
regard to the Project. Furthermore, Declarant shall abide by all requirements of its respective
corporate form, its articles of organization and bylaws, and remain at all times in good standing with
the agencies having regulatory jurisdiction over it.
h) Declarant agrees that if it shall become aware of any situation, event or condition which would result
in noncompliance of the Project or the Declarant’s compliance with this Declaration or program
requirements, then the Declarant shall promptly give written notice thereof to the County.
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i) Project Records
i) Declarant shall keep and maintain the Project Records described in 24 C.F.R. Pt. 92.508(a)(3) and
(7)(i)(A) (equal opportunity and fair housing records) and (7)(ii)(A)(affirmative marketing process
records). If the Declarant received funds as a Community Housing Development Organization, then
Declarant shall also keep and maintain the CHDO Records described in 24 C.F.R. Pt. 92.508 (a)(4).
ii) Period of Record Retention: All records described in subparagraph (i), above plus all pertinent
documents, books, papers, accounts, reports, files, tenant lists, applications, leases, waiting lists,
income examinations, and other records relating to the project specified in this Declaration or the
Funding Agreement shall be retained for five years following expiration of this Declaration.
Notwithstanding the foregoing, if any litigation, claim, negotiation, audit, or other action has been
started before the expiration of the Affordability Period, the records must be retained for five years
following completion of the action and resolution of all issues which arise from it, or for five years
following the end Affordability Period, whichever is later.
j) Inspection and/or Audit of Records: Declarant shall make available at all reasonable times, for
inspection, transcription, excerpting, examination, copying, and audit by the County, the State
Auditor General, HUD, the Comptroller General of the United States, or any of their representatives
and designees, all pertinent books, documents, papers, accounts, reports, files, tenant lists,
applications, leases, waiting lists, income examinations, and other records (hereinafter referred to as
"Records") relating to the project specified herein. Upon request by such inspecting or auditing entity,
a legible copy of all such Records shall be produced by the Declarant at the specified office of, the
County, the State Auditor General, or at any other reasonable location. The original of all such
Records shall also be available and produced for inspection, copying, and audit when needed to
verify the authenticity of a copy.
k) Transfer Restrictions
i) Except as provided in subparagraphs (ii) and (iii), below, the Declarant may sell, transfer or
exchange the Project or individual buildings at any time, upon prior written consent of the County,
such consent not to be unreasonably withheld or delayed. In addition, the County will require in
advance of the transfer of the project to any buyer or successor or other person acquiring the Project
or any interest therein written agreement, in a form satisfactory to the County that the transfer is
subject to the requirements of this Declaration, program requirements, and the Loan Documents.
Notwithstanding the foregoing, nothing in this subparagraph shall affect the rights of a Lender to
approve the proposed transfer as required under a lender loan document.
ii) The Declarant further covenant and agree not to dispose of less than all of its interest in any
building composing the Project.
iii) Except as specifically provided in the Funding Agreement, Scope of Work, the Declarant shall not
demolish any portion of the Project or substantially subtract from any real or personal property
comprising the Project; or permit the use of any residential rental unit for any purpose other than
rental housing during the term of this Declaration.
iv) The Declarant shall not grant commercial leases or licenses relating to the Project (other than
commercial leases with respect to insubstantial portions of the Project on a square footage basis) or
permit the sale, transfer, conveyance or other encumbrance of the Project or any portion thereof
(except for leases of County-Assisted Units or Market-Rate Units) during the effective term of this
Declaration, provided that this Declaration shall not apply to any encumbrance, conveyance or
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transfer in conjunction with a sale, transfer or other conveyance of the Project that complies with the
requirements of the Loan Documents and this Declaration.
12. Casualty, Condemnation, and Eminent Domain. Subject to the written requirements of the Deed of
Trust of even date with this Declaration, and an agreement between a Lender and the County, if any, the
Declarant represents, warrants and agrees that if the Project, or any portion thereof, shall be damaged or
destroyed or shall be condemned or acquired for public use, that the proceeds of any such condemnation
or acquisition shall be assigned in full and paid to the County as required by the Loan Documents, who
shall cause such proceeds to be used to repair and restore same to substantially the same condition as
existed prior to the event causing such damage or destruction, or to relieve the condemnation, and
thereafter operate the Project in accordance with the terms of the Loan Documents and this Declaration.
Provided, however, that if repair or restoration of the Project is not practicable, the Declarant shall not be
obligated to repair or restore the Project, and an award of damages under this paragraph up to the
amount of the unpaid principal and accrued interest of the Obligation Secured described in the Loan
Documents may be retained by the County and any remaining balance shall be paid to Declarant. The
County shall be a party to any agreement relating to the use of condemnation proceeds or insurance
proceeds from damage to the Project to repair and restore the Project. The County may, at the County’s
option, appeal from any such award in the name of Declarant.
13. Covenants Run with the Land; Successors Bound Thereby
a) Upon execution and delivery by the Declarant, Declarant shall cause this Declaration and all
amendments and exhibits hereto to be recorded and filed in the official records of the county
recorder's office in the county in which this Project is located and, if applicable, with the recording
office of the appropriate Indian tribe if the Project is located on tribal land, and pay all fees and
charges incurred in conjunction with recording of this Declaration and all addenda or amendments
thereto. Upon recording, Declarant shall immediately transmit or cause to be sent directly from the
recorder's office to the County an executed original of the recorded Declaration showing the date,
book and page number of recording. Where pertinent, the County may require Declarant to furnish a
condition of title report for the Project prior to or after recordation of this Declaration.
b) Declarant intends, declares and covenants, on behalf of itself and all future Declarants and operators
of the Project and land upon which the Project is constructed that, during the term of this Declaration,
all of the covenants and restrictions set forth in this Declaration regulating and restricting the use,
occupancy and transfer of the Project: (i) shall be and are covenants running with the Project,
encumbering the Project and land upon which the Project sits for the term of this Declaration, and are
binding upon the Declarant's successors in title and all subsequent Declarants and operators of the
Project and the land upon which the Project sits; (ii) are not merely personal covenants of Declarant;
and, (iii) shall bind Declarant (and the benefits shall inure to the County and any past, present, or
prospective tenant of a County-Assisted Unit) and its and their respective successors and assigns
during the term of this Declaration.
c) Declarant hereby agrees that any and all requirements of the laws of the State of Arizona to be
satisfied in order for the provisions of this Declaration to constitute deed restrictions and covenants
running with the land shall be deemed to be satisfied in full, and that any requirements or privileges
of estate or title are intended to be satisfied hereby, or in the alternative, that an equitable servitude
has been created to ensure that these restrictions will run with the land. For the longer of the period
this credit is claimed or the term of this Declaration, each and every contract, deed or other
instrument hereinafter executed conveying the Project or any portion thereof shall expressly provide
that such conveyance is subject to this Declaration, provided, however, that the covenants contained
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herein shall survive and be effective regardless of whether such contract, deed, or other instrument
hereafter executed conveying the Project or any portion thereof provides that such conveyance is
subject to this Declaration.
d) Declarant further covenants and agrees to obtain the consent of any prior recorded lien holder on the
Project to this Declaration and the recording thereof, and such consent shall be a condition precedent
to the execution of this Declaration.
14. Subordination. Except for the Permitted Encumbrances identified in the Loan Documents or an inter -
creditor and subordination or similar agreement executed by and between the County and a Lender,
Declarant warrants that it has not and will not execute any other agreement, lien or security interest, or
otherwise become a party to such an agreement, lien or security interest with provisions contradictory to,
or in opposition to, the provisions of this Declaration, and that in any event, the requirements of this
Declaration are paramount and controlling as to the rights and obligations herein set forth and supersede
the requirements and conflicts contained in any other agreement. In the event of a conflict between the
provisions of this Declaration and the Loan Documents, the provisions of the Loan Documents shall
control.
15. Effect of Other Restrictive Covenants. In the event that the Project is subject to declarations of
restrictive covenants relating to other governmental sources of funding, then the more restrictive
requirements shall apply. Upon the expiration or termination of any such declaration during the term of
this Declaration, the Affordability Period and other requirements of this Declaration shall continue to
apply to any County-Assisted Unit.
16. Amendment. This Declaration may be amended with the prior written approval of the County to
correct factual errors contained herein or to reflect changes in pertinent law, and program requirements.
No amendment to this Declaration may be made without the prior written approval of the County.
Declarant hereby expressly agrees to enter into all amendments hereto which, in the opinion of the
County's legal counsel, are reasonably necessary or desirable to correct factual errors or for maintaining
compliance with program requirements.
17. Severability. The invalidity of any clause, part or provision of this Declaration shall not affect the
validity of the remaining portions thereof.
18. Notices. All notices to be given pursuant to this Declaration shall be in writing and shall be deemed
given when mailed by certified or registered mail, return receipt requested, to the parties hereto at the
addresses set forth below, or to such other place as a party may from time to time designate in writing.
To the County: Rachel Milne, Assistant Director
Maricopa County Human Services Dept.
234 N. Central Ave. Ste. 300
Phoenix, AZ 85004
Attention: Community Development Assistant Director
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To the Declarant:
The River at Eastline Village , LLC
200 N. Main St.
Oregon, WI 53575
Attn: Brian Swanton
With a copy to: BCP/River at Eastline, LLC
c/o Boston Capital Partners, Inc.
One Boston Place, 21st Floor
Boston, MA 02108
Attn: Asset Management (River at Eastline)
And to: Holland & Knight LLP
10 St. James Ave., 11th Floor
Boston, MA 02116
Attn: Jennifer C. Whalen, Esq.
The County, and the Declarant, may, by notice given hereunder, designate any further or different
addresses to which subsequent notices; certificates or other communications shall be sent.
19. Governing Law. This Declaration shall be governed by the laws of the State of Arizona and, where
applicable, the laws of the United States of America. In accordance with Arizona law, the County and
State of Arizona may cancel this Declaration without penalty or further obligation under the provisions of
A.R.S. § 38-511. The parties further agree to use arbitration to the extent required by A.R.S. § 12-1518.
20. Venue. The Declarant consents to venue in the Arizona Superior Court for Maricopa County for any
legal action arising under this Declaration.
21. Survival of Obligations. The obligations of the Declarant as set forth herein and in the Application
shall survive the disbursement of the funding that is the subject of this Declaration, which shall not be
deemed to terminate or merge with the distribution of funds or termination of the Funding Agreement.
Notwithstanding termination of the Funding Agreement pursuant to the terms thereof or otherwise, the
program requirements identified in the Funding Agreement that are applicable during the period of
operation of the Project shall be enforceable through this Declaration.
22. Landlord's Consent to Encumbrance. By the terms of the Lease, Landlord hereby consents to the
encumbrances against the Project Property evidenced by this Declaration, and Landlord is subject thereto
for all purposes.
SIGNATURES ON FOLLOWING PAGE
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IN WITNESS WHEREOF, Declarant has caused this Declaration to be signed by its duly authorized
representative, as of the day and year first above written, such Declaration being acknowledged by the
Beneficiary, below.
ACKNOWLEDGED BY MARICOPA
DECLARANT: COUNTY:
The River at Eastline Village , LLC, a Wisconsin
limited liability company
By: River at Eastline Village MM, LLC, its managing
member
By: GEC Eastline, LLC, its manager
By: Gorman & Company, LLC, its manager
BRIAN SWANTON, PRESIDENT Chairman, Board of Supervisors
DATE DATE
Attested to:
Clerk, Board of Supervisors
DATE
Reviewed and approved and agreed to pursuant to Paragraph 22:
LANDLORD:
HOUSING AUTHORITY OF MARICOPA COUNTY,
a political subdivision of the State of Arizona
__________________________________________
Gloria Munoz
Executive Director
ACKNOWLEDGEMENTS ON THE FOLLOWING PAGE
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STATE OF ____________ )
) ss.
County of _____________ )
On this the ________ day of _____________, 2018, before me, a Notary Public, personally
appeared Brian Swanton, as president of Gorman & Company, LLC, as manager of GEC Eastline, LLC, as
manager of The River at Eastline Village MM, LLC, as member of The River at Eastline Village, LLC,
known to me or satisfactorily proven to be the person whose name is subscribed to this Declaration of
Conditions, Covenants and Restrictions and acknowledged that he executed the same.
_____________________________________ _______________________________________
Notary Expiration Date Signature of the Notary Public for Declarant
[STAMP/SEAL]
STATE OF ____________ )
) ss.
County of _____________ )
On this the ________ day of _____________, 2018, before me, a Notary Public, personally
appeared Gloria Munoz, Executive Director of Housing Authority of Maricopa County, known to me or
satisfactorily proven to be the person whose name is subscribed to this Declaration of Conditions,
Covenants and Restrictions and acknowledged that she executed the same.
_____________________________________ _______________________________________
Notary Expiration Date Signature of the Notary Public for Landlord
[STAMP/SEAL]
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Requested By:
When Recorded Return to:
Maricopa County
Attn: Human Services Department
234 N. Central Ave., Ste. 300
Phoenix, AZ 85004
DEED OF TRUST
Effective Date: County and State where Real Property is located:
___, 2018 Maricopa County, Arizona
TRUSTOR: BENEFICIARY:
The River at Eastline Village, LLC Maricopa County
200 N. Main Street 234 N. Central Ave., Ste. 300
Oregon, WI 53575 Phoenix, AZ 85004
TRUSTEE:
Chicago Title Agency, Inc.
2424 E. Camelback Rd., Ste. 200
Phoenix, AZ 85016
Project Property: Obligation Secured:
The River at Eastline Village Promissory Note Amount $300,000
2102 E. Apache Boulevard
Tempe, AZ
Subject Real Property: By the terms of that certain Ground Lease by and between Housing Authority of
Maricopa County, as landlord, and Trustor, as tenant, recorded with the Maricopa County Recorder
concurrently herewith, ("Lease"), Trustor owns a leasehold interest in the property situated in Maricopa County,
Arizona, commonly known as The River at Eastline Village and further described in Exhibit A hereto (the
"Project Property"), incorporated by this reference. Trustor has all of the beneficial and equitable interest in and
to the leasehold estate in the Project Property, and is lawfully seized and possessed of the Project Property.
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1. Conveyance. Trustor irrevocably grants and conveys to Trustee in trust, with power of sale, the Project
Property, subject to existing taxes, covenants, conditions, restrictions, rights of way and easements of record, to be
held as security for the payment by Trustor of the Obligation Secured as described on the cover page hereof, and for
the performance of other obligations of Trustor as set forth in this Deed of Trust.
2. Appurtenances. Trustor grants, together with the Project Property, all buildings and improvements now or
hereafter erected thereon and all fixtures attached to or used in connection with the Project Property (including,
without limiting the generality of the foregoing, all ventilating, heating, air conditioning, refrigeration, plumbing and
lighting fixtures), together with all leases, rents, issues, profits or income therefrom (hereinafter “Property Income”),
subject, however, to the right power and authority hereinafter given to Beneficiary to collect and apply such
Property Income.
3. Obligation Secured. The obligations secured by this Deed of Trust are: the Developer Agreement executed
by and between Trustor and Beneficiary and dated _________ (the "HOME Agreement"); the Promissory Note
dated of even date herewith in the original principal amount of $300,000 made by Trustor in favor of Beneficiary
("Promissory Note"); and the Declaration of Covenants, Conditions, and Restrictions of even date herewith executed
by Trustor in favor of Beneficiary in conjunction with this Deed of Trust ("Declaration"). The HOME Agreement,
Promissory Note and Declaration are collectively referred to herein as the "Obligations Secured." Capitalized terms
used herein and not otherwise defined have the same meaning as the defined terms as set forth in the HOME
Agreement.
4. Taxes, Assessments and Trust Expenses. Trustor shall pay, before delinquent, all taxes and assessments
affecting the Project Property, all encumbrances, charges and liens, when due, with interest, on the Project Property
or any part thereof, which appear to be prior or superior hereto; all costs, fees and expenses of this trust and all
lawful charges, costs and expenses of any reinstatement of this Deed of Trust following a default.
5. Fire Insurance. Trustor shall, at Trustor’s expense, maintain in force fire and extended coverage insurance
in any amount of not less than the full replacement value of any buildings which may exist on the Project Property
with loss payable to Beneficiary. Trustor shall provide fire insurance protection on its furniture, fixtures and other
personal property on the Project Property in an amount equal to the full insurable value thereof and promises that
any insurance coverage in this regard will contain a waiver of the insurer’s right of subrogation against Beneficiary.
The amount collected under any insurance policy may be applied to any indebtedness hereby secured and in such
order as the Beneficiary may determine, or at the option of the Beneficiary the entire amount so collected or any part
thereof may be released to Trustor. Such application or release shall not cure or waive any default hereunder or
cause discontinuance of any action that may have been or may thereafter be taken by Beneficiary or Trustee because
of such default.
6. Liability Insurance. Trustor shall, at Trustor’s expense, maintain in force policies of liability insurance,
with Beneficiary as an additional insured thereunder, insuring Trustor against any claims resulting from the injury to
or the death of any person or the damage to or the destruction of any property belonging to any person by reason of
Beneficiary’s interest hereunder or the use and occupancy of Project Property by Trustor. Such insurance shall be in
the following amounts:
a. $2,000,000 against any claim resulting from injury to or the death of any one person.
b. $4,000,000 against any claim resulting from injury to or deaths of any number of persons from
any one accident.
c. $2,000,000 against any claim resulting from the damage to or destruction of any property
belonging to any person.
7. Processing of Insurance Policies. Trustor shall promptly deliver to Beneficiary the originals or true and
exact copies of all insurance policies including flood insurance (if required) by this Deed of Trust. Trustor shall not
do or omit to do any act which will in any way impair or invalidate any insurance policy required by this Deed of
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Trust. All insurance policies shall contain a written obligation of the insurer to notify Beneficiary in writing at least
10 days prior to any cancellation thereof.
8. Indemnification of Trustee and Beneficiary. Trustor shall hold Trustee and Beneficiary, harmless from
and indemnify them for any and all claims raised by any third party, including but not limited to claims secured by
any liens or encumbrances placed on the Project Property, against Trustee or Beneficiary resulting from their
interests hereunder or the acts of Trustor except to the extent that any claim raised by a third party is the result of the
gross negligence or intentional misconduct of the Trustee or Beneficiary. Such indemnification shall include
reasonable attorneys’ fees and costs, including cost of evidence of title. Trustor shall appear in, and defend, any
action or proceeding purporting to affect the security hereof or the rights or powers of the Trustee or Beneficiary;
and shall pay all costs and expenses of Trustee or Beneficiary, including costs of evidence of title and attorneys’ fees
in a reasonable sum in such action or proceeding which Trustee or Beneficiary may appear, and in suit brought by
Beneficiary to foreclose on this Deed of Trust.
9. Right of Beneficiary or Trustee to Pay Obligations of Trustor. If Trustor fails or refuses to pay any
sums due to be paid by it under the provisions of this Deed of Trust, or fails or refuses to take any action as herein
provided, then Beneficiary or Trustee shall have the right to pay any such sum due to be paid by Trustor and to
perform any act necessary. The amount of such sums paid by Beneficiary or Trustee for the account of Trustor and
the cost of any such action, together with interest thereon at the maximum legal contractual rate per annum, from the
date of payment until satisfaction, shall be added to the Obligation Secured, unless otherwise specified by
Beneficiary at the time of such payment. The payment by Beneficiary or Trustee of any such sums or the
performance of any such action shall be prima facie evidence of the necessity therefore.
10. Condemnation. Subject to the written requirements of any subordination agreement executed by
Beneficiary, any award of damages in connection with any condemnation or injury to any of the Project Property by
reason of public use or for damages for private trespass or injury thereto are assigned in full and shall be paid to
Beneficiary, who shall apply them to the payment of the principal of the Obligation Secured, the interest thereon,
and any other charges and amounts secured hereby in such manner as Beneficiary may elect. Any remaining balance
shall be paid to Trustor. Beneficiary may, at Beneficiary’s option, appeal from any such award in the name of
Trustor.
Unless Trustor and Beneficiary otherwise agree in writing, any application of such proceeds to principal shall not
extend or postpone the due dates of any installment payments of the Obligation Secured or change the amount of
such payments.
11. Care of Property. Trustor shall take reasonable care of the Project Property and the buildings thereon and
shall adequately maintain the Project Property in good repair and condition as at the original date of this Deed of
Trust, ordinary depreciation excepted. Trustor shall commit or permit no waste and do no act which will unduly
impair or depreciate the value of the Project Property. For purposes of this section, adequate maintenance includes
(a) removal of debris, salvage, junk cars, trash in and/or around the Project Property; (b) ongoing maintenance of
landscaping of premises; and (c) compliance with “good faith effort” to maintain and clean interior and exterior of
structure in compliance with 24 CFR 92.251 (f), Minimum Property Standards. If the Trustor fails to so care for the
Project Property, then Beneficiary, at its option, may make or contract for the necessary repairs or remediation
necessary to restore the Project Property and, the Trustor shall, at the option of the Beneficiary, reimburse
Beneficiary for the reasonable cost of such repairs and remediation, or execute a promissory note for the amount of
repairs and remediation secured by a deed of trust in favor of Beneficiary or the Beneficiary may add the cost
thereof to the Obligation Secured. Trustor shall purchase and use on the Project Property the amount of water to
which it is or shall be entitled and shall not abandon any water rights, power rights or any rights of whatever nature
which are appurtenant to the Project Property.
12. Right to Inspect Project Property. At all convenient and reasonable times, upon prior notice to Trustor,
Beneficiary or Trustee shall have the right and license to go on and into the Project Property to inspect it in order to
determine whether the provisions of the Obligations Secured are being kept and performed. The Trustor agrees and
understands that periodic site inspections will be made by Beneficiary.
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13. Energy Efficient Appliances. Any energy efficient appliances (clothes washers, dryers, and dishwashers)
purchased with HOME funds, shall remain in the home for the full Period of Affordability, subject to dispensation
from Maricopa County Human Services Department, Housing and Community Development Division.
14. Event of Default. Each of the following shall be considered an event of default ("Event of Default") of this
Deed of Trust:
a. The occurrence of an event of default or breach of any provision of the Promissory Note or any
other term of this Deed of Trust after written notice to Trustor and an opportunity to cure such default or
breach, or failure of Trustor to pay on demand by Beneficiary any amount for which demand is made on
Beneficiary by the U.S. Department of Housing and Urban Development arising from the failure by Trustor
of the Project Property to comply with the HOME Program as set forth in 24 CFR 92 and is not caused,
partially or otherwise by the Trustee or Beneficiary.
b. The failure of Trustor to perform any duty or obligation required by the Obligations Secured and
such failure continues after applicable cure periods;
c. The removal or attempted removal by Trustor of any property included in the Project Property
without the consent of Beneficiary;
d. The failure of Trustor to maintain the Project Property in accordance with paragraph 11 above and
such failure continues after applicable cure periods;
e. Abandonment of the Project Property by Trustor;
f. The filing, execution or occurrence of:
(1) A petition in bankruptcy by or against Trustor which is not dismissed within one hundred
twenty (120) days.
(2) A petition or answer seeking a reorganization, composition, readjustment, liquidation,
dissolution or other relief of the same or different kind under any provision of the Bankruptcy
Act which is not dismissed within one hundred twenty (120) days.
(3) Adjudication of Trustor as a bankrupt or insolvent, or insolvency in the bankruptcy equity
sense.
(4) An assignment by Trustor for the benefit of creditors, whether by trust, mortgage or
otherwise.
(5) A petition or other proceedings by or against Trustor for the appointment of a trustee,
receiver, guardian, conservator or liquidator of Trustor with respect to all or substantially all
its property which petition is not dismissed within one hundred twenty (120) days.
(6) Trustor’s dissolution or liquidation or the taking of possession of Trustor’s property by any
governmental authority in connection with dissolution or liquidation.
g. A reasonable determination by Beneficiary that the security of the Deed of Trust is inadequate or
in danger of being impaired or threatened from any cause whatsoever.
h. The sale, conveyance, transfer or attempted conveyance or transfer, or subjection to a mortgage or
deed of trust, whether voluntary, involuntary or by operation of law, of the Project Property or any interest
in it, without prior written consent of Beneficiary which consent will not be unreasonably withheld,
conditioned or delayed. Notwithstanding the forgoing, Beneficiary expressly agrees that any refinance of
indebtedness on the Property to which this Note and Deed of Trust are subordinate does not constitute a
default so long as such refinancing is conducted for the sole purpose of loss mitigation or foreclosure
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prevention. Any refinance activity regarding indebtedness on the Property for purposes of “cashing out,”
equity or that is otherwise not for the purpose of loss mitigation, foreclosure prevention, or retention of the
property is hereby deemed to constitute a default of the Note and Deed of Trust during the 360 month
duration of the Note.
i. Notwithstanding anything to the contrary in the Obligations Secured and Deed of Trust, the
following shall not constitute a default under the Obligations secured (a) the sale, transfer, conveyance or
pledge of any membership interest in an investor member, if any, and (b) any amendment to an operating
agreement, as it may be amended from time to time, of the Trustor (the "Operating Agreement") which
does not affect the financial terms of the Operating Agreement, and does not otherwise adversely affect the
security interest of Beneficiary in the Property or Declaration.
15. Cure Rights.
a. Beneficiary shall give Trustor and any other person identified in paragraph 25 below,
simultaneous written notice of any monetary Event of Default occurring under the terms of the Promissory
Note prior to exercising any remedies thereunder. Trustor shall have a period of thirty (30) business days
after receipt of such notice, or such longer period of time as may be set forth in the Promissory Note, to
cure the default prior to exercise of remedies under the Promissory Note or this Deed of Trust.
b. Beneficiary shall give Trustor and any other person identified in paragraph 25 below,
simultaneous written notice of any non-monetary default or Event of Default occurring under the term of
the Obligations Secured, prior to exercising any remedies. Such non-monetary default or Event of Default
shall not remain uncured for more than one hundred twenty (120) calendar days. If Beneficiary determines
that Trustor has taken and diligently, continually and in good faith continues corrective action and that the
non-monetary default or Event of Default cannot be corrected within the 120-day cure period, Beneficiary
may, in its sole discretion, allow Trustor such additional time as may be reasonably necessary to cure the
non-monetary default or Event of Default before Beneficiary exercises any remedies.
c. Beneficiary agrees that any cure of any Event of Default described in the Obligations Secured by
any person identified in paragraph 25 below, shall be deemed to be cure by Trustor and shall be accepted or
rejected on the same basis as if made by Trustor.
16. Acceleration. In the event of default by Trustor, Beneficiary may declare all sums secured hereby
immediately due and payable by delivery to Trustee of written notice setting forth the nature thereof and of
Beneficiary’s election to cause the Project Property to be sold under this Deed of Trust. Beneficiary shall also
deposit with Trustee all documents evidencing the Obligation Secured and any expenditures secured hereby.
17. Trustee’s Sale. Upon receipt of Beneficiary’s notice of election to cause the Project Property to be sold,
Trustee shall, in accordance with all provisions of law, give Trustor notice of trustee’s sale and, after the lapse of the
required amount of time, sell the Project Property at public auction, at the time and place specified in the Notice of
Trustee’s Sale, to the highest bidder of cash in lawful money of the United States, payable at the time of sale. Any
persons, including Trustor, Trustee or Beneficiary may purchase at the Trustee’s Sale. Trustee may postpone or
continue the sale by giving notice of postponement or continuance by public declaration at the time and place last
appointed for sale. Upon sale, Trustee shall deliver to the purchaser a Trustee’s Deed conveying the Project
Property, but without any covenant or warranty, expressed or implied.
18. Proceeds of Trustee’s Sale. After deducting all costs, fees and expenses of Trustee and of this trust,
including the cost of evidence of title in connection with the sale and reasonable attorney’s fees, Trustee shall apply
the proceeds of sale to payment of all sums then secured hereby and all other sums due under the terms hereof, with
accrued interest, and the remainder, if any, to the persons legally entitled thereto or as provided by ARS §33-812 as
currently codified or as amended.
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19. Defaults on Prior Encumbrances. If there are mortgages upon the Project Property or other encumbrances
which are prior in time or prior in right, then Trustor promises to comply with the terms of those prior mortgages or
encumbrances. If Trustor fails to comply with such terms and defaults on those mortgages or obligations, such
default shall also be considered a default of this Deed of Trust, and Trustee or Beneficiary herein may advance the
monies necessary to remedy such defaults, and, if it does, such monies shall be added to the Obligation Secured and
shall bear the maximum contractual legal rate of interest from the date monies are tendered unless otherwise
specified by Beneficiary at the time of such payment. Beneficiary may also proceed on this default by exercising the
same remedies it has on this Deed of Trust.
20. Foreclosure and Other Remedies. In lieu of sale pursuant to the power of sale conferred hereby, this
Deed of Trust may be foreclosed in the same manner provided by law for the foreclosure of mortgages on real
property. Beneficiary shall also have all other rights and remedies available hereunder and at law or in equity. All
rights and remedies shall be cumulative.
21. Reinstatement after Default. Notwithstanding Beneficiary’s acceleration of sums secured by this Deed of
Trust, Trustor shall have the right to have any proceedings begun by Beneficiary to enforce this Deed Trust
discontinued and to have the Deed of Trust reinstated at any time before the day of the Trustee’s Sale or before the
filing of a foreclosure action. In order to have the Deed of Trust reinstated after default, the Trustor must:
a. Pay to Beneficiary the entire amount due under this Deed of Trust and the Obligation Secured,
other than such portion of the principal as would not be due had no default occurred;
b. Cure all defaults or covenants or agreements of Trustor regarding the HOME Agreement as
contained in this Deed of Trust;
c. Pay costs and expenses incurred by Beneficiary and Trustee in enforcing the terms of this Deed of
Trust and pursuing remedies;
d. Pay reasonable attorney’s fees actually incurred by Beneficiary and Trustee;
e. Pay the recording fee for any cancellation of notice of sale; and
f. Pay the Trustee’s fees, in an amount not to exceed $600 or one half of one per cent of the entire
unpaid principal sum secured, whichever is greater.
Upon reinstatement, this Deed of Trust and the obligation secured hereby shall remain in full force and effect as if
no acceleration had occurred.
22. Assignment of Property Income, Right of Entry and Appointment of Receiver. As additional security,
Trustor hereby gives Beneficiary the right, power and authority, during the continuance of this Trust, to collect the
Property Income, reserving to Trustor the right, prior to any Event of Default by Trustor in payment of any
indebtedness secured hereby or in performance of any agreement hereunder, to collect and retain such Property
Income as it becomes due and payable.
Upon any such uncured Event of Default and subject to the interest of the superior lien holders identified in Exhibit
A to the Promissory Note, Beneficiary may at any time, with notice, either in person, by agent or by a receiver to be
appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby secured, enter
upon and take possession of the Property Income; in its own name sue for or otherwise collect such Property
Income, including amounts past due and unpaid; and apply the same, less costs and expenses of operation and
collection, including reasonable attorney’s fees, upon any indebtedness secured hereby, or as otherwise appropriate
to preserve Beneficiary’s security interest and ensure compliance with the HOME Program, Department Guidance,
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and Federal Guidance (as those terms are defined in the Promissory Note); and in such order as Beneficiary may
determine.
The entering upon and taking possession of the Property Income, the collection of such Property Income and the
application thereof, shall not cure or waive any default or notice of Trustee’s Sale hereunder or invalidate any act
done pursuant to such notice.
23. Acts of Trustee Affecting Project Property. At any time, with notice, upon written request of Beneficiary
and presentation of this Deed of Trust and the Obligation Secured for endorsement, Trustee may, without liability,
release and reconvey all or any part of the Project Property, consent to the making and recording, or either, of any
map or plat of all or any part of the Project Property; join in granting any easement thereon; join in or consent to any
extension agreement or any agreement subordinating the lien, encumbrance or charge hereof.
Any such action by Trustee may be taken without affecting the personal liability of any person for payment of the
indebtedness secured hereby, without affecting the security hereof for the full amount secured hereby on all property
remaining subject hereto, and without the necessity that any sum representing the value or any portion thereof of the
property affected by Trustee’s action be credited on the indebtedness.
24. Satisfaction of the Obligation. If Trustee receives full payment of the Obligation Secured in the amount
secured or at the Maturity Date of the Promissory Note, whichever is earlier, at the request of Trustor, Beneficiary or
Trustee shall acknowledge satisfaction of the Deed of Trust by recording and delivering to Trustor a Satisfaction or
Release of Realty Deed of Trust in accordance with A.R.S. § 33-712. However, the Declaration of Covenants,
Conditions and Restrictions recorded against the Project property shall remain in full force and in effect for the
entire duration of its term.
25. Notices. Copies of all notices and communications concerning this Deed of Trust shall be mailed to the
Parties at the addresses specified in this Deed of Trust. Any change of address shall be communicated to the other
Parties in writing. Any documents which may adversely affect the rights of any party to this Deed of Trust shall be
dispatched by Certified Mail, Return Receipt Requested. A copy of all foregoing notices and communications shall
be mailed to: BCP/River at Eastline, LLC, c/o Boston Capital Partners, Inc., One Boston Place, 21st Floor, Boston,
MA 02108, Attn: Asset Management (River at Eastline) and to: Holland & Knight LLP, 10 St. James Ave., 11th
Floor, Boston, MA 02116, Attn: Jennifer C. Whalen, Esq.
26. Headings. The marginal or topical headings of the provisions herein are for convenience only and do not
define, limit or construe the contents of these provisions.
27. Interpretation. In this Deed of Trust, whenever the context so requires, masculine gender includes the
feminine and neuter, and the singular includes the plural and vice versa.
28. Applicable Law. This Deed of Trust shall be subject to and governed by the laws of the State of Arizona,
in particular the provisions of ARS Title 33, Chapter 6.1, regardless of the fact that one or more Parties now is or
may become a resident of a different state.
29. Nonwaiver. The failure of the Beneficiary at any time to require performance of any provision or to resort
to any remedy provided under this Agreement, or the Beneficiary’s agreement to provide accommodation outside
the terms of this Agreement, shall in no way affect the right of the Beneficiary to require contract performance or to
resort to a remedy at any time, or to refuse to make accommodation thereafter, nor shall the waiver by any party of a
breach be deemed to be a waiver of any subsequent breach. A waiver shall not be effective unless it is in writing and
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signed by the party against whom the waiver is being enforced. No course of dealing or any failure to exercise, nor
any delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof.
30. Succession of Benefits. The provisions of this Deed of Trust shall inure to the benefit of and be binding
upon the Parties hereto, their heirs, personal representatives, conservators and permitted assigns.
31. Successor Trustee. Beneficiary may appoint a Successor Trustee in the manner prescribed by law. A
Successor Trustee herein shall, without conveyance from the predecessor Trustee, succeed to all the predecessor’s
title, estate, rights, powers and duties. Trustee may resign by mailing or delivering notice thereof to Beneficiary and
Trustor.
32. Entire Agreement. The terms of this Deed of Trust, the Obligations Secured and attached Exhibit A
executed this date constitute the entire agreement among the Parties and the Parties represent that there are no
collateral or side agreements not otherwise provided for within the terms of this Deed of Trust.
33. Time of Essence. Time is of the essence in this Deed of Trust and every term, condition, covenant and
provision hereof.
34. Modification. No modification of this Deed of Trust shall be binding unless evidenced by an agreement in
writing and signed by all Parties.
35. Partial Invalidity. If any provision of this Deed of Trust is held to be invalid or unenforceable all the
remaining provisions shall nevertheless continue in full force and effect.
36. Encumbrances. In the event all of any part of the Project Property or any interest in it is sold, conveyed or
encumbered without the prior written consent of the Beneficiary, such consent not to be unreasonably withheld, all
obligations secured by this Deed of Trust shall become due and payable immediately upon notice to the Trustee by
the Beneficiary.
37. Landlord’s Consent to Encumbrance. By the terms of the Lease, Landlord hereby consents to the
encumbrance against the Project Property evidenced by this Deed of Trust to secure the debt evidenced by the
Obligations Secured, and Landlord is subject thereto for all purposes.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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TRUSTOR/BORROWER:
The River at Eastline Village, LLC,
A Wisconsin limited liability company
By: The River at Eastline Village MM, LLC
Its: Member
By: GEC Eastline, LLC
Its: Manager
By: Gorman & Company, LLC
Its: Manager
By: ______________________________________
Brian Swanton, President
STATE OF _____________)
) ss.
County of ___________ )
The foregoing Deed of Trust was acknowledged before me this ______day of ______________, _____, by Brian
Swanton, President of Gorman & Company, LLC, as manager of GEC Eastline, LLC, as manager of The River at
Eastline Village, LLC, as member of The River at Eastline Village, LLC.
_________________________________________
Notary Public
My commission expires:
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Reviewed, Approved and Agreed to Pursuant to Paragraph 37.
LANDLORD:
HOUSING AUTHORITY OF MARICOPA
COUNTY, a political subdivision of the State of Arizona
____________________________________
Gloria Munoz, Executive Director
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing Deed of Trust was acknowledged before me this ____ day of 2018, by Gloria Munoz, Executive
Director of Housing Authority of Maricopa County.
__________________________________________
My Commission expires: Notary Public
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Escrow No.
LEGAL DESCRIPTION
Lots 10, 11 and 12, of LOLA VISTA, according to Book 30 of Maps, page 20 records of Maricopa
County, Arizona;
EXCEPT a part of Lots 10, 11 and 12 of Lola Vista Subdivision, as recorded in Book 30 of Maps, page
20 and located in the Northeast quarter of Section 24, Township 1 North, Range 4 East of the Gila and
Salt River Base and Meridian, Maricopa County, Arizona, described as follows:
COMMENCING at the intersection of Apache Boulevard and River Drive;
THENCE North 00 degrees 07 minutes 35 seconds East, along the centerline of River Drive, a distance of
69.75 feet;
THENCE South 89 degrees 52 minutes 25 seconds East, a distance of 30.00 feet to the POINT OF
BEGINNING;
THENCE South 55 degrees 17 minutes 06 seconds East, a distance of 16.95 feet;
THENCE North 89 degrees 55 minutes 40 seconds East, a distance of 252.10 feet;
THENCE South 87 degrees 12 minutes 30 seconds East, a distance of 43.89 feet;
THENCE South 00 degrees 06 minutes 14 seconds West, a distance of 7.84 feet;
THENCE South 89 degrees 56 minutes 15 seconds West, a distance of 309.90 feet;
THENCE North 00 degrees 07 minutes 35 seconds East, a distance of 19.65 feet to the POINT OF
BEGINNING.
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PROMISSORY NOTE
Maricopa County, Arizona ___________, 2018
1. For value received, The River at Eastline Village, LLC, a Wisconsin limited liability
company ("Borrower") promises to pay to the County of Maricopa, an Arizona body
politic ("County"), the sum of THREE HUNDRED THOUSAND DOLLARS ($300,000)
(the "Note") payable in accordance with the terms of A Developer Agreement Between
Maricopa County Administered by its Human Services Department and The River at
Eastline Village, LLC dated _____________, 2018 (the "Loan Agreement"), attached
hereto and incorporated herein.
2. The definition of any capitalized term or word used and not otherwise defined shall have
the meaning set forth in the Loan Agreement.
3. The Note shall bear zero percent (0%) interest. All outstanding principal shall be due and
payable in full on or before the date that is thirty (30) years from beginning of the
Affordability Period.
4. This Note shall bind and inure to the benefit of the respective permitted successors and
assigns of the Borrower and the County.
5. Payments shall be made in lawful money of the United States of America at the
administrative offices of Maricopa County at the following address: 234 N. Central Ave.,
Phoenix, Arizona, 85004.
6. The prevailing party in a suit on this Note shall recover, as part of the judgment,
reasonable attorney’s fees that may be fixed by the judge of the court.
7. This Note shall be evidenced and secured by the following documents, all of which will
be executed in favor of the County on even date herewith and will be duly recorded in the
Office of the County Recorder of Maricopa County, Arizona:
a. The Declaration of Covenants, Conditions and Restrictions
b. Deed of Trust
8. Borrower's obligations under this Note are nonrecourse to Borrower and its members and
may be enforced solely out of the proceeds of the sale of the property in accordance with
the Deed of Trust.
9. The Note shall be governed by, and construed in accordance with, the laws of the State of
Arizona.
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10. Time is of the essence in this Note and every term, condition, covenant and provision
hereof.
11. The Deed of Trust and this Note are and shall be subject and subordinate in all respects to
the liens, terms, covenants and conditions of any senior lender recorded prior in time to
the Deed of Trust, as reflected on Exhibit A attached hereto.
12. This Note and the Deed of Trust are subject and subordinate to the Rental Assistance
Demonstration Use Agreement between the Secretary of Housing and Urban
Development and Borrower dated _____________, 2018.
[SIGNATURE APPEARS ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, Borrower has signed this Note on this ____ day of _________, 2018.
The River at Eastline Village, LLC,
a Wisconsin limited liability company
By: The River at Eastline Village MM, LLC
Its: Managing member
By: GEC Eastline, LLC
Its: Manager
By: Gorman & Company, LLC
Its: Manager
___________________________
Brian Swanton, President
STATE OF _________ )
) ss.
County of _______ )
The foregoing Promissory Note was acknowledged before me this _____ day of ,
2018, by Brian Swanton, as president of Gorman & Company, LLC, as manager of GEC
Eastline, LLC, as manager of The River at Eastline Village MM, LLC, as member of The River
at Eastline Village, LLC.
Notary Public
My commission expires:
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Exhibit A
List of Permitted Encumbrances (Order of Priority)
1. Rental Assistance Demonstration Use Agreement recorded in the Official Records
of Maricopa County, Arizona.
2. JPMorgan Chase Bank, N.A. construction loan in the amount of $12,700,000,
secured by Deed of Trust recorded in the Official Records of Maricopa County, Arizona.
3. JPMorgan Chase Bank, N.A. permanent loan in the amount of $1,000,000,
secured by Deed of Trust recorded in the Official Records of Maricopa County, Arizona.
4. Arizona Department of Housing loan in the amount of $335,742, secured by Deed
of Trust recorded in the Official Records of Maricopa County, Arizona.
5. Maricopa County HOME funds loan in the amount of $300,000, secured by Deed
of Trust recorded in the Official Records of Maricopa County, Arizona.
6. Housing Authority of Maricopa County loan in the amount of $500,000, secured
by Deed of Trust recorded in the Official Records of Maricopa County.
7. Federal Home Loan Bank loan in an amount not to exceed $750,000, applied for
as of the date hereof, to be secured by Deed of Trust to be recorded in the Official
Records of Maricopa County.
RECORDING REQUESTED BY
CHICAGO TITLE COMPANY
AND WHEN RECORDED RETURN TO:
U.S. Department of Housing and Urban Development
451 7th Street SW, Room 9100
Washington, DC 20410
Attention: Office of the Assistant Secretary for
Housing - Rental Assistance Demonstration
Recorder’s Stamp
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AGREEMENT TO SUBORDINATE TO RENTAL ASSISTANCE DEMONSTRATION
USE AGREEMENT
THE RIVER AT EASTLINE VILLAGE
COUNTY OF MARICOPA
This Agreement to Subordinate to Rental Assistance Demonstration Use Agreement (the
“Subordination”) is entered into this ________________________(date), by Maricopa County, a
body politic and corporate, by and through the Human Services Department, an agency of
Maricopa County (the “Lender”), and The River at Eastline Village, LLC, a Wisconsin limited
liability company (the “Project Owner”), collectively, the “Parties.”
WHEREAS, the Parties executed that certain Deed of Trust and Declaration of
Covenants, Conditions, and Restrictions (collectively, the “Subordinate Documents”) dated and
recorded as of substantially even date herewith; and
WHEREAS, HUD has authorized the conversion of Clare Feldstadt Homes, that involves
a transfer of assistance to units to be constructed at The River at Eastline Village (the “Project”)
located upon the real property described on Exhibit “A” attached hereto, from public housing to
Section 8 assistance under the Rental Assistance Demonstration (“RAD”) program, pursuant to
Public Law 112-55; and
WHEREAS, as a condition of the RAD conversion, the Owner executed a Rental
Assistance Demonstration Use Agreement dated and recorded as of substantially even date
herewith (the “RAD Use Agreement”) for the benefit of HUD; and
WHEREAS, HUD requires as a condition of the RAD conversion that the Parties agree to
subordinate the Subordinate Document(s) to the RAD Use Agreement;
NOW THEREFORE, let it be known to all interested parties, that for good and valuable
consideration, the receipt of which is hereby acknowledged, the undersigned do hereby agree:
1. So long as the RAD Use Agreement, and all extensions thereto, be in effect, the
Subordinate Document(s) shall in all respects be subordinate.
2. Subordination extends to and continues in effect with respect to any future amendment,
extension, renewal, or any other modification of the RAD Use Agreement or the
Subordinate Document(s).
3. In the event of conflict between/among the Subordinate Document(s) and the RAD Use
Agreement, the RAD Use Agreement controls.
4. The following amendments to the Subordinate Document(s) require the prior written
consent of HUD: Any amendment to any HUD-required provisions in the Subordinate
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Document(s), an increase in the interest rate, an increase of the total indebtedness, an
acceleration of the amortization or payment schedule, and any changes that would
preclude or impair a reasonable opportunity to cure any defaults by the Project Owner
under the Subordinate Documents.
5. This Subordination will survive bankruptcy and foreclosure.
6. This Subordination may be signed in counterparts.
7. The invalidity, in whole or in part, of any of the provisions set forth in this Subordination,
shall not affect or invalidate any remaining provisions.
8. This Subordination and every covenant hereof shall be binding upon the Parties and their
respective successors and assigns. This Subordination shall not be modified or amended
except by a written instrument executed by all parties hereto and approved in writing by
HUD.
[SIGNATURE PAGE(S) TO FOLLOW]
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In witness whereof, the parties have executed this Subordination as of the date first
written above.
Lender
County of Maricopa
___________________________________
Chairman, Board of Supervisors
Date: ____________________________
Attested to:
___________________________________
Fran McCarroll, Clerk of Board
Date: _____________________________
APPROVED AS TO FORM:
By: _______________________________
Deputy County Attorney
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Project Owner
The River at Eastline Village, LLC
By: The River at Eastline Village MM, LLC
Its: Managing Member
By: GEC Eastline, LLC
Its: Manager
By: Gorman & Company, LLC
Its: Manager
By: ________________________________
Brian Swanton, President
STATE OF _______________ )
) ss.
COUNTY OF _____________ )
I, _________________________, a Notary Public of the County and State aforesaid, certify that
___________________, either being personally known to me or proven by satisfactory evidence,
personally came before me this day and acknowledged that he/she, being authorized to do so, voluntarily
executed the foregoing Subordination on behalf of said companies for the purposes state therein.
___________________________________
Notary Public
My commission expires:
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RECORD AND RETURN TO:
JPMorgan Chase Bank, N.A.
Commercial Real Estate Loan Administration
201 North Central Avenue, AZ1-1240
Phoenix, Arizona 85004
Attention: Deborah L. Spencer, Senior Closer
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (this “Agreement”) is entered into this ___ day of
______________, 2018 by and among JPMORGAN CHASE BANK, N.A, a national banking association
(the “Senior Lender”), MARICOPA COUNTY (the “Subordinate Lender”), and (iii) THE RIVER AT
EASTLINE VILLAGE, LLC, a Wisconsin limited liability company (the “Borrower”).
Recitals
A. The Senior Lender has made or is making one or more loans (collectively, the “First
Mortgage Loan”) to the Borrower in the original principal amount of $13,700,000. The First Mortgage
Loan is or will be secured by, among other things, a first mortgage lien on property known as The River
at Eastline Village, City of Tempe, County of Maricopa and State of Arizona (the “Property”) pursuant to
that certain Leasehold Deed of Trust, Assignment of Rents and Security Agreement dated the date hereof
from the Borrower to Chicago Title Insurance Agency, Inc., as Trustee for the benefit of the Senior
Lender (the “First Mortgage”). The Property is more fully described in Exhibit A attached hereto. The
Borrower’s obligation to repay the First Mortgage Loan is evidenced by (i) a Variable Rate Note dated
the date hereof in the amount of $12,700,000 (the “Variable Rate Note”) and (ii) a Fixed Rate Note dated
the date hereof in the original principal amount of $1,000,000 (the “Fixed Rate Note”, and together with
the Variable Rate Note, collectively, the “First Mortgage Note”).
B. The Borrower has requested the Senior Lender to permit the Subordinate Lender to make
a subordinate loan to Borrower in the amount of $300,000 (the “Subordinate Loan”) and to secure the
Subordinate Loan by, among other things, placing a subordinate mortgage lien against the Property.
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C. The Senior Lender has agreed to permit the Subordinate Lender to make the Subordinate
Loan and to place a subordinate mortgage lien against the Property subject to all of the conditions
contained in this Agreement.
NOW, THEREFORE, in order to induce the Senior Lender to permit the Subordinate Lender to
make the Subordinate Loan to the Borrower and to place a subordinate mortgage lien against the
Property, and in consideration thereof, the Senior Lender, the Subordinate Lender and the Borrower agree
as follows:
1. Definitions.
In addition to the terms defined in the Recitals to this Agreement, for purposes of this Agreement
the following terms have the respective meanings set forth below:
“Affiliate” means, when used with respect to a Person, any corporation, partnership, joint
venture, limited liability company, limited liability partnership, trust or individual controlled by, under
common control with, or which controls such Person (the term “control” for these purposes shall mean
the ability, whether by the ownership of shares or other equity interests, by contract or otherwise, to elect
a majority of the directors of a corporation, to make management decisions on behalf of, or independently
to select the managing partner of, a partnership, or otherwise to have the power independently to remove
and then select a majority of those individuals exercising managerial authority over an entity, and control
shall be conclusively presumed in the case of the ownership of 50% or more of the equity interests).
“Borrower” means the Person named as such in the first paragraph of this Agreement and
any other Person (other than the Senior Lender) who acquires title to the Property after the date of this
Agreement.
“Business Day” means any day other than Saturday, Sunday or a day on which the Senior
Lender is not open for business.
“Default Notice” means: (a) a copy of the written notice from the Senior Lender to the
Borrower stating that a First Mortgage Loan Default has occurred under the First Mortgage Loan; or (b) a
copy of the written notice from the Subordinate Lender to the Borrower stating that a Subordinate Loan
Default has occurred under the Subordinate Loan. Each Default Notice shall specify the default upon
which such Default Notice is based.
“First Mortgage Loan Default” means the occurrence of an “Event of Default” as that
term is defined in the First Mortgage Loan Documents.
“First Mortgage Loan Documents” means the First Mortgage Note, the First Mortgage
and all other documents evidencing, securing or otherwise executed and delivered in connection with the
First Mortgage Loan.
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“Person” means an individual, estate, trust, partnership, corporation, limited liability
company, limited liability partnership, governmental department or agency or any other entity which has
the legal capacity to own property.
“Senior Lender” means the Person named as such in the first paragraph on page 1 of this
Agreement.
“Subordinate Lender” means the Person named as such in the first paragraph on page 1 of
this Agreement and any other Person who becomes the legal holder of the Subordinate Note after the date
of this Agreement.
“Subordinate Loan Default” means a default by the Borrower in performing or observing
any of the terms, covenants or conditions in the Subordinate Loan Documents to be performed or
observed by it, which continues beyond any applicable period provided in the Subordinate Loan
Documents for curing the default.
“Subordinate Loan Documents” means the Subordinate Note, the Subordinate Mortgage
and all other documents evidencing, securing or otherwise executed and delivered in connection with the
Subordinate Loan.
“Subordinate Mortgage” means collectively that certain Leasehold Deed of Trust dated
on or about the date hereof encumbering the Property as security for the Subordinate Loan, which the
Subordinate Lender will cause to be recorded among the applicable land records before this Agreement.
“Subordinate Note” means collectively that certain Promissory Note dated on or about
the date hereof issued by the Borrower to the Subordinate Lender, or order, to evidence the Subordinate
Loan.
2. Permission to Place Mortgage Lien against Property.
The Senior Lender agrees, notwithstanding the prohibition against inferior liens on the Property
contained in the First Mortgage Loan Documents and subject to the provisions of this Agreement, to
permit the Subordinate Lender to record the Subordinate Mortgage and other recordable Subordinate
Loan Documents against the Property (which are subordinate in all respects to the lien of the First
Mortgage) to secure the Borrower’s obligation to repay the Subordinate Note and all other obligations,
indebtedness and liabilities of the Borrower to the Subordinate Lender under and in connection with the
Subordinate Loan. Such permission is subject to the condition that each of the representations and
warranties made by the Borrower and the Subordinate Lender in Section 3 is true and correct on the date
of this Agreement and on the date on which the proceeds of the Subordinate Loan are disbursed to the
Borrower. If any of the representations and warranties made by the Borrower and the Subordinate Lender
in Section 3 is not true and correct on both of those dates, the provisions of the First Mortgage Loan
Documents applicable to unpermitted liens on the Property shall apply.
3. Borrower’s and Subordinate Lender’s Representations and Warranties.
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The Borrower and the Subordinate Lender each makes the following representations and
warranties to the Senior Lender:
(a) Subordinate Note. The Subordinate Note shall be deemed to contain the
following provision:
The indebtedness evidenced by this Note is and shall be subordinate in right of payment
to the prior payment in full of the indebtedness evidenced by (i) a Variable Rate Note dated on or about
the date hereof in the original principal amount of $12,750,000 issued by the Borrower and payable to
JPMorgan Chase Bank, N.A. (“Senior Lender”), or order (the “Variable Rate Note”), and (ii) a Fixed Rate
Note dated on or about the date hereof in the original principal amount of $1,000,000 issued by the
Borrower and payable to the Senior Lender, or order (the “Fixed Rate Note” and together with the
Variable Rate Note, collectively, the “First Mortgage Note”), to the extent and in the manner provided in
that certain Subordination Agreement dated on or about the date hereof between the Subordinate Lender,
the Borrower and the Senior Lender (the “Subordination Agreement”). The Deed of Trust securing this
Note, is and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions
of the security instrument securing the First Mortgage Note as more fully set forth in the Subordination
Agreement. The rights and remedies of the Subordinate Lender and each subsequent holder of this Note
under the Deed of Trust securing this Note are subject to the restrictions and limitations set forth in the
Subordination Agreement. Each subsequent holder of this Note shall be deemed, by virtue of such
holder’s acquisition of the Note, to have agreed to perform and observe all of the terms, covenants and
conditions to be performed or observed by the Subordinate Lender under the Subordination Agreement.
(b) Relationship of Borrower to Subordinate Lender and Senior Lender. The
Subordinate Lender (a) is not an Affiliate of the Borrower and (b) is not in possession of any facts which
would lead it to believe that the Senior Lender is an Affiliate of the Borrower.
(c) Term. The term of the Subordinate Note does not end before the term of the First
Mortgage Note.
(d) Subordinate Loan Documents. The executed Subordinate Loan Documents are
substantially in the same forms as those submitted to, and approved by, Senior Lender prior to the date of
this Agreement. Upon execution and delivery of the Subordinate Loan Documents, Borrower shall deliver
to Senior Lender an executed copy of each of the Subordinate Loan Documents, certified to be true,
correct and complete.
4. Terms of Subordination.
(a) Agreement to Subordinate. The Senior Lender and the Subordinate Lender agree
that: (i) the indebtedness evidenced by the Subordinate Loan Documents is and shall be subordinated in
right of payment, to the extent and in the manner provided in this Agreement to the prior payment in full
of the indebtedness evidenced by the First Mortgage Loan Documents, and (ii) the Subordinate Mortgage
and the other Subordinate Loan Documents are and shall be subject and subordinate in all respects to the
liens, terms, covenants and conditions of the First Mortgage and the other First Mortgage Loan
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Documents and to all advances heretofore made or which may hereafter be made pursuant to the First
Mortgage and the other First Mortgage Loan Documents (including but not limited to, all sums advanced
for the purposes of (1) protecting or further securing the lien of the First Mortgage, curing defaults by the
Borrower under the First Mortgage Loan Documents or for any other purpose expressly permitted by the
First Mortgage, or (2) constructing, renovating, repairing, furnishing, fixturing or equipping the Property).
(b) Subordination of Subrogation Rights. The Subordinate Lender agrees that if, by
reason of its payment of real estate taxes or other monetary obligations of the Borrower, or by reason of
its exercise of any other right or remedy under the Subordinate Loan Documents, it acquires by right of
subrogation or otherwise a lien on the Property which (but for this subsection) would be senior to the lien
of the First Mortgage, then, in that event, such lien shall be subject and subordinate to the lien of the First
Mortgage.
(c) Payments Before First Mortgage Loan Default. Until the Subordinate Lender
receives a Default Notice of a First Mortgage Loan Default from the Senior Lender, the Subordinate
Lender shall be entitled to retain for its own account all payments made under or pursuant to the
Subordinate Loan Documents.
(d) Payments After First Mortgage Loan Default. The Borrower agrees that, after it
receives notice (or otherwise acquires knowledge) of a First Mortgage Loan Default, it will not make any
payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal,
interest, additional interest, late payment charges, default interest, attorney’s fees, or any other sums
secured by the Subordinate Mortgage) without the Senior Lender’s prior written consent. The Subordinate
Lender agrees that, after it receives a Default Notice from the Senior Lender with written instructions
directing the Subordinate Lender not to accept payments from the Borrower on account of the
Subordinate Loan, it will not accept any payments under or pursuant to the Subordinate Loan Documents
(including but not limited to principal, interest, additional interest, late payment charges, default interest,
attorney’s fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender’s
prior written consent. If the Subordinate Lender receives written notice from the Senior Lender that the
First Mortgage Loan Default which gave rise to the Subordinate Lender’s obligation not to accept
payments has been cured, waived, or otherwise suspended by the Senior Lender, the restrictions on
payment to the Subordinate Lender in this Section 4 shall terminate, and the Senior Lender shall have no
right to any subsequent payments made to the Subordinate Lender by the Borrower prior to the
Subordinate Lender’s receipt of a new Default Notice from the Senior Lender in accordance with the
provisions of this Section 4(d).
(e) Remitting Subordinate Loan Payments to Senior Lender. If, after the Subordinate
Lender receives a Default Notice from the Senior Lender in accordance with subsection (d) above, the
Subordinate Lender receives any payments under the Subordinate Loan Documents, the Subordinate
Lender agrees that such payment or other distribution will be received and held in trust for the Senior
Lender and unless the Senior Lender otherwise notifies the Subordinate Lender in writing, will be
promptly remitted, in kind to the Senior Lender, properly endorsed to the Senior Lender, to be applied to
the principal of, interest on and other amounts due under the First Mortgage Loan Documents in
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accordance with the provisions of the First Mortgage Loan Documents. By executing this Agreement, the
Borrower specifically authorizes the Subordinate Lender to endorse and remit any such payments to the
Senior Lender, and specifically waives any and all rights to have such payments returned to the Borrower
or credited against the Subordinate Loan. Borrower and Senior Lender acknowledge and agree that
payments received by the Subordinate Lender, and remitted to the Senior Lender under this Section 4,
shall not be applied or otherwise credited against the Subordinate Loan, nor shall the tender of such
payment to the Senior Lender waive any Subordinate Loan Default which may arise from the inability of
the Subordinate Lender to retain such payment or apply such payment to the Subordinate Loan.
(f) Agreement Not to Commence Bankruptcy Proceeding. The Subordinate Lender
agrees that during the term of this Agreement it will not commence, or join with any other creditor in
commencing any bankruptcy reorganization, arrangement, insolvency or liquidation proceedings with
respect to the Borrower, without the Senior Lender’s prior written consent.
5. Default Under Subordinate Loan Documents.
(a) Notice of Default and Cure Rights. The Subordinate Lender shall deliver to the
Senior Lender a Default Notice within five (5) Business Days in each case where the Subordinate Lender
has given a Default Notice to the Borrower. Failure of the Subordinate Lender to send a Default Notice to
the Senior Lender shall not prevent the exercise of the Subordinate Lender’s rights and remedies under
the Subordinate Loan Documents, subject to the provisions of this Agreement. The Senior Lender shall
have the right, but not the obligation, to cure any Subordinate Loan Default within ninety (90) days
following the date of such notice; provided, however that the Subordinate Lender shall be entitled, during
such 90-day period, to continue to pursue its rights and remedies under the Subordinate Loan Documents.
All amounts paid by the Senior Lender in accordance with the First Mortgage Loan Documents to cure a
Subordinate Loan Default shall be deemed to have been advanced by the Senior Lender pursuant to, and
shall be secured by the lien of, the First Mortgage.
(b) Subordinate Lender’s Exercise of Remedies After Notice to Senior Lender. If a
Subordinate Loan Default occurs and is continuing, the Subordinate Lender agrees that, without the
Senior Lender’s prior written consent, it will not commence foreclosure proceedings with respect to the
Property under the Subordinate Loan Documents or exercise any other rights or remedies it may have
under the Subordinate Loan Documents, including, but not limited to accelerating the Subordinate Loan,
collecting rents, appointing (or seeking the appointment of) a receiver or exercising any other rights or
remedies thereunder unless and until it has given the Senior Lender at least sixty (60) days’ prior written
notice; during such 60-day period, however, the Subordinate Lender shall be entitled to exercise and
enforce all other rights and remedies available to the Subordinate Lender under the Subordinate Loan
Documents and/or under applicable laws, including without limitation rights to enforce covenants and
agreements of the Borrower relating to income, rent or affordability restrictions contained in the
Subordinate Loan Documents.
(c) Cross Default. The Borrower and the Subordinate Lender agree that a
Subordinate Loan Default shall constitute a First Mortgage Loan Default under the First Mortgage Loan
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Documents and the Senior Lender shall have the right to exercise all rights or remedies under the First
Mortgage Loan Documents in the same manner as in the case of any other First Mortgage Loan Default.
If the Subordinate Lender notifies the Senior Lender in writing that any Subordinate Loan Default of
which the Senior Lender has received a Default Notice has been cured or waived, as determined by the
Subordinate Lender in its sole discretion, then provided that Senior Lender has not conducted a sale of the
Property pursuant to its rights under the First Mortgage Loan Documents, any First Mortgage Loan
Default under the First Mortgage Loan Documents arising solely from such Subordinate Loan Default
shall be deemed cured, and the First Mortgage Loan shall be reinstated, provided, however, that the
Senior Lender shall not be required to return or otherwise credit for the benefit of the Borrower any
default rate interest or other default related charges or payments received by the Senior Lender during
such First Mortgage Loan Default.
6. Default Under First Mortgage Loan Documents.
(a) Notice of Default and Cure Rights. The Senior Lender shall deliver to the
Subordinate Lender a Default Notice within five (5) Business Days in each case where the Senior Lender
has given a Default Notice to the Borrower. Failure of the Senior Lender to send a Default Notice to the
Subordinate Lender shall not prevent the exercise of the Senior Lender’s rights and remedies under the
First Mortgage Loan Documents, subject to the provisions of this Agreement. The Subordinate Lender
shall have the right, but not the obligation, to cure any such First Mortgage Loan Default within sixty (60)
days following the date of such notice; provided, however, that the Senior Lender shall be entitled during
such 60-day period to continue to pursue its remedies under the First Mortgage Loan Documents. All
amounts paid by the Subordinate Lender to the Senior Lender to cure a First Mortgage Loan Default shall
be deemed to have been advanced by the Subordinate Lender pursuant to, and shall be secured by the lien
of, the Subordinate Mortgage.
(b) Cross Default. The Subordinate Lender agrees that, notwithstanding any contrary
provision contained in the Subordinate Loan Documents, a First Mortgage Loan Default shall not
constitute a default under the Subordinate Loan Documents if no other default occurred under the
Subordinate Loan Documents until either (i) the Senior Lender has accelerated the maturity of the First
Mortgage Loan, or (ii) the Senior Lender has taken affirmative action to exercise its rights under the First
Mortgage to collect rent, to appoint (or seek the appointment of) a receiver or to foreclose on (or to
exercise a power of sale contained in) the First Mortgage. At any time after a First Mortgage Loan
Default is determined to constitute a default under the Subordinate Loan Documents, the Subordinate
Lender shall be permitted to pursue its remedies for default under the Subordinate Loan Documents,
subject to the restrictions and limitations of this Agreement. If at any time the Borrower cures any First
Mortgage Loan Default to the satisfaction of the Senior Lender, as evidenced by written notice from the
Senior lender to the Subordinate Lender, any default under the Subordinate Loan Documents arising from
such First Mortgage Loan Default shall be deemed cured and the Subordinate Loan shall be retroactively
reinstated as if such First Mortgage Loan Default had never occurred.
7. Conflict.
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The Borrower, the Senior Lender and the Subordinate Lender each agrees that, in the event of any
conflict or inconsistency between the terms of the First Mortgage Loan Documents, the Subordinate Loan
Documents and the terms of this Agreement, the terms of this Agreement shall govern and control solely
as to the following: (a) the relative priority of the security interests of the Senior Lender and the
Subordinate Lender in the Property; (b) the timing of the exercise of remedies by the Senior Lender and
the Subordinate Lender under the First Mortgage and the Subordinate Mortgage, respectively; and (c)
solely as between the Senior Lender and the Subordinate Lender, the notice requirements, cure rights, and
the other rights and obligations which the Senior Lender and the Subordinate Lender have agreed to as
expressly provided in this Agreement. Borrower acknowledges that the terms and provisions of this
Agreement shall not, and shall not be deemed to: extend Borrower’s time to cure any First Mortgage Loan
Default or Subordinate Loan Default, as the case may be; give the Borrower the right to notice of any
First Mortgage Loan Default or Subordinate Loan Default, as the case may be other than that, if any,
provided, respectively under the First Mortgage Loan Documents or the Subordinate Loan Documents; or
create any other right or benefit for Borrower as against Senior Lender or Subordinate Lender.
8. Rights and Obligations of the Subordinate Lender Under the Subordinate Loan
Documents and of the Senior Lender under the First Mortgage Loan Documents.
Subject to each of the other terms of this Agreement, all of the following provisions shall
supersede any provisions of the Subordinate Loan Documents covering the same subject matter:
(a) Protection of Security Interest. The Subordinate Lender shall not, without the
prior written consent of the Senior Lender in each instance, take any action which has the effect of
increasing the indebtedness outstanding under, or secured by, the Subordinate Loan Documents, except
that the Subordinate Lender shall have the right to advance funds to cure First Mortgage Loan Defaults
pursuant to Section 6(a) above and advance funds pursuant to the Subordinate Mortgage for the purpose
of paying real estate taxes and insurance premiums, making necessary repairs to the Property and curing
other defaults by the Borrower under the Subordinate Loan Documents.
(b) Condemnation or Casualty. In the event of: a taking or threatened taking by
condemnation or other exercise of eminent domain of all or a portion of the Property (collectively, a
“Taking”); or the occurrence of a fire or other casualty resulting in damage to all or a portion of the
Property (collectively, a “Casualty”), at any time or times when the First Mortgage remains a lien on the
Property the following provisions shall apply:
(1) The Subordinate Lender hereby agrees that its rights (under the
Subordinate Loan Documents or otherwise) to participate in any proceeding or action relating to a Taking
and/or a Casualty, or to participate or join in any settlement of, or to adjust, any claims resulting from a
Taking or a Casualty shall be and remain subordinate in all respects to the Senior Lender’s rights under
the First Mortgage Loan Documents with respect thereto, and the Subordinate Lender shall be bound by
any settlement or adjustment of a claim resulting from a Taking or a Casualty made by the Senior Lender;
provided, however, this subsection and/or anything contained in this Agreement shall not limit the rights
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of the Subordinate Lender to file any pleadings, documents, claims or notices with the appropriate court
with jurisdiction over the proposed Taking and/or Casualty; and
(2) all proceeds received or to be received on account of a Taking or a
Casualty, or both, shall be applied (either to payment of the costs and expenses of repair and restoration or
to payment of the First Mortgage Loan) in the manner determined by the Senior Lender in its sole
discretion; provided, however, that if the Senior Lender elects to apply such proceeds to payment of the
principal of, interest on and other amounts payable under the First Mortgage Loan, any proceeds
remaining after the satisfaction in full of the principal of, interest on and other amounts payable under the
First Mortgage Loan shall be paid to, and may be applied by, the Subordinate Lender in accordance with
the applicable provisions of the Subordinate Loan Documents, provided however, the Senior Lender
agrees to consult with the Subordinate Lender in determining the application of Casualty proceeds,
provided further however that in the event of any disagreement between the Senior Lender and the
Subordinate Lender over the application of Casualty proceeds, the decision of the Senior Lender, in its
sole discretion, shall prevail.
(c) No Modification of Subordinate Loan Documents. The Borrower and the
Subordinate Lender each agrees that, until the principal of, interest on and all other amounts payable
under the First Mortgage Loan Documents have been paid in full, it will not, without the prior written
consent of the Senior Lender in each instance, increase the amount of the Subordinate Loan, increase the
required payments due under the Subordinate Loan, decrease the term of the Subordinate Loan, increase
the interest rate on the Subordinate Loan, or otherwise amend the Subordinate Loan terms in a manner
that creates an adverse effect upon the Senior Lender under the First Mortgage Loan Documents. Any
unauthorized amendment of the Subordinate Loan Documents or assignment of the Subordinate Lender’s
interest in the Subordinate Loan without the Senior Lender’s consent shall be void ab initio and of no
effect whatsoever.
9. Modification or Refinancing of First Mortgage Loan.
The Subordinate Lender consents to any agreement or arrangement in which the Senior Lender
waives, postpones, extends, reduces or modifies any provisions of the First Mortgage Loan Documents,
including any provision requiring the payment of money. Subordinate Lender further agrees that its
agreement to subordinate hereunder shall extend to any new mortgage debt which is for the purpose of
refinancing all or any part of the First Mortgage Loan (including reasonable and necessary costs
associated with the closing and/or the refinancing); and that all the terms and covenants of this Agreement
shall inure to the benefit of any holder of any such refinanced debt; and that all references to the First
Mortgage Loan, the First Mortgage Note, the First Mortgage, the First Mortgage Loan Documents and
Senior Lender shall mean, respectively, the refinance loan, the refinance note, the mortgage securing the
refinance note, all documents evidencing securing or otherwise pertaining to the refinance note and the
holder of the refinance note.
10. Default by the Subordinate Lender or Senior Lender.
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If the Subordinate Lender or Senior Lender defaults in performing or observing any of the terms,
covenants or conditions to be performed or observed by it under this Agreement, the other, non-defaulting
lender shall have the right to all available legal and equitable relief.
11. Notices.
Each notice, request, demand, consent, approval or other communication (hereinafter in this
Section referred to collectively as “notices” and referred to singly as a “notice”) which the Senior Lender
or the Subordinate Lender is required or permitted to give to the other party pursuant to this Agreement
shall be in writing and shall be deemed to have been duly and sufficiently given if: (a) personally
delivered with proof of delivery thereof (any notice so delivered shall be deemed to have been received at
the time so delivered); or (b) sent by Federal Express (or other similar national overnight courier)
designating early morning delivery (any notice so delivered shall be deemed to have been received on the
next Business Day following receipt by the courier); or (c) sent by United States registered or certified
mail, return receipt requested, postage prepaid, at a post office regularly maintained by the United States
Postal Service (any notice so sent shall be deemed to have been received two days after mailing in the
United States), addressed to the respective parties as follows:
SENIOR LENDER:
JPMorgan Chase Bank, N.A.
Community Development Banking
10 S. Dearborn
Mail Code IL1-0953
Chicago, Illinois 60603
Attention: John D. Bernhard, Executive Director
With a copy to:
JPMorgan Chase Bank, N.A.
Legal Department
4 New York Plaza, 21st Floor
Mail Code NY1-E089
New York, New York 10004-2413
Attention: Michael R. Zients, Esq., Executive Director and
Assistant General Counsel
SUBORDINATE LENDER:
Maricopa County
Human Services Department
234 N. Central Avenue, 3rd Floor
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Phoenix, Arizona 85004
Attention: Rachel Milne
BORROWER:
The River at Eastline Village, LLC
c/o Gorman & Company, LLC
200 North Main Street
Oregon, Wisconsin 53575
Attention: Gary J. Gorman
With a copy to:
Reinhart Boerner Van Deuren, S.C.
1000 North Water Street, Suite 1700
Milwaukee, Wisconsin 53202
Attention: Stephen Elliott, Esq.
Either party may, by notice given pursuant to this Section, change the person or persons and/or address or
addresses, or designate an additional person or persons or an additional address or addresses for its
notices, but notice of a change of address shall only be effective upon receipt.
13. General.
(a) Assignment/Successors. This Agreement shall be binding upon the Borrower, the
Senior Lender and the Subordinate Lender and shall inure to the benefit of the respective legal successors
and assigns of the Senior Lender and the Subordinate Lender.
(b) No Partnership or Joint Venture. The Senior Lender’s permission for the
placement of the Subordinate Loan Documents does not constitute the Senior Lender as a joint venturer or
partner of the Subordinate Lender. Neither party hereto shall hold itself out as a partner, agent or Affiliate
of the other party hereto.
(c) Senior Lender’s and Subordinate Lender’s Consent. Wherever the Senior
Lender’s consent or approval is required by any provision of this Agreement, such consent or approval
may be granted or denied by the Senior Lender in its sole and absolute discretion, unless otherwise
expressly provided in this Agreement. Wherever the Subordinate Lender’s consent or approval is required
by any provision of this Agreement, such consent or approval may be granted or denied by the
Subordinate Lender in its sole and absolute discretion, unless otherwise expressly provided in this
Agreement.
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(d) Further Assurances. The Subordinate Lender, the Senior Lender and the
Borrower each agree, at the Borrower’s expense, to execute and deliver all additional instruments and/or
documents reasonably required by any other party to this Agreement in order to evidence that the
Subordinate Mortgage is subordinate to the lien, covenants and conditions of the First Mortgage, or to
further evidence the intent of this Agreement.
(e) Amendment. This Agreement shall not be amended except by written instrument
signed by all parties hereto.
(f) Governing Law. This Agreement shall be governed by the laws of the State of
Arizona.
(g) Severable Provisions. If any provision of this Agreement shall be invalid or
unenforceable to any extent, then the other provisions of this Agreement, shall not be affected thereby and
shall be enforced to the greatest extent permitted by law.
(h) Term. The term of this Agreement shall commence on the date hereof and shall
continue until the earliest to occur of the following events: (i) the payment of all of the principal of,
interest on and other amounts payable under the First Mortgage Loan Documents; (ii) the payment of all
of the principal of, interest on and other amounts payable under the Subordinate Loan Documents, other
than by reason of payments which the Subordinate Lender is obligated to remit to the Senior Lender
pursuant to Section 4 hereof; (iii) the acquisition by the Senior Lender of title to the Property pursuant to
a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the First
Mortgage; or (iv) the acquisition by the Subordinate Lender of title to the Property pursuant to a fore-
closure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the Subordinate
Mortgage, but only if such acquisition of title does not violate any of the terms of this Agreement.
(i) Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be considered an original for all purposes; provided, however, that all such
counterparts shall together constitute one and the same instrument.
[Signature Pages Follow]
Doc #02-590669.2
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first written above.
SENIOR LENDER:
JPMORGAN CHASE BANK, N.A.
By:
John D. Bernhard, Authorized Officer
STATE OF ILLINOIS )
ss.:
COUNTY OF COOK )
The foregoing instrument was acknowledged to me this ______ day of _____________, 2018 by John D.
Bernhard, an Authorized Officer of JPMorgan Chase Bank, N.A., a national banking association.
_________________________________________
Notary Public
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SUBORDINATE LENDER:
MARICOPA COUNTY
By:_________________________________
Name:
Title:
STATE OF ARIZONA )
)ss.
COUNTY OF MARICOPA )
The foregoing Instrument was acknowledged before me this ____ day of ________________,
2018, by _________________, the _________________ on behalf of Maricopa County.
Notary Public
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BORROWER:
THE RIVER AT EASTLINE VILLAGE, LLC
a Wisconsin limited liability company
By: The River at Eastline Village MM, LLC
a Wisconsin limited liability company
its managing member
By: GEC Eastline, LLC
a Wisconsin limited liability company
its manager
By: Gorman & Company, LLC
a Wisconsin limited liability company
its manager
By:
Brian Swanton, President
STATE OF WISCONSIN )
: SS
DANE COUNTY )
This instrument was acknowledged before me on the _______ day of ______________, 2018, by Brian
Swanton as President of Gorman & Company, LLC, manager of GEC Eastline, LLC, manager of The
River at Eastline Village MM, LLC, managing member of The River at Eastline Village, LLC.
[Seal] Notary Public, State of Wisconsin
My commission expires on
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EXHIBIT A
(Description of Property)
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EXHIBIT B- SECURITY INSTRUMENTS FOR EXECUTION AND RECORDING
ATTACHMENT 2: ALTA / NSPS Land Title Survey
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EXHIBIT C- ADDITIONAL PROCEDURES/FORMS
ATTACHMENT 1: AFFIRMATIVE MARKETING AND FAIR HOUSING
POLICIES AND PROCEDURES
Policy
The public, property owners, and potential tenants will be informed about the responsibilities of River at
Eastline Village in complying with Fair Housing Act and Affirmative Marketing, regulations and the goal
of attracting persons from all racial, ethnic, and gender groups in the housing market area to the available
housing. This policy applies equally to all recipients of HOME funds.
A. Methods for informing the public, property owners, and potential tenants about the Maricopa
County’s (“County”) Affirmative Marketing Policy:
1. Unit occupants are subject to the Affirmative Marketing Procedures and the Tenant
Notification Procedures (outlined in the County’s “Administrative Procedures for Provision
of Tenant Assistance under the Rental Rehabilitation Program”) that are available upon
request.
2. River at Eastline Village will mention the HOME program, its regulations, and the goal of
attracting persons of all racial, ethnic, and gender groups in all articles and press releases
published in the Arizona Republic or other local newspapers, dealing with the program.
3. River at Eastline Village will ensure tenants and applicants are informed about the affirmative
marketing and Federal fair housing laws upon initial contact, whether by telephone, letter or
brochure. This information will include a statement of reasonable accommodation, and a
statement to implement equal opportunity policies for all applicants without regard to race,
religion, color, sex, age, familial status, gender identity, disability, national origin, sexual
preference, or veteran status. River at Eastline Village may also reach tenants and applicants
through articles in local newspapers, especially in the real estate section, and will include
information about affirmative marketing in such articles. River at Eastline Village will
include a statement about the affirmative marketing requirements of the program in all
brochures, letters, and other communications, sent to potential applicants for HOME-assisted
units.
B. Requirements and practices regarding affirmative marketing to be carried out by property owners:
1. River at Eastline Village will carry out affirmative marketing procedures in advertising
HOME-assisted units and attracting tenants of all racial, ethnic, and gender groups. When
advertising rental rehab units, River at Eastline Village will state in its ads that Section 8
tenants are welcome in the units. HOME-assisted units to be occupied by Section 8 voucher
holders are governed by the County’s Equal Opportunity Housing Plan which is available
upon request.
2. In addition to requiring the affirmation of the certification by River at Eastline Village in the
Contractor Certifications, the County will provide a list of contacts when marketing the
availability of its units to persons least likely to apply. That list will include an appropriate
local newspaper such as the Arizona Republic, the Arizona Informant, or Mesa Tribune.
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C. The County will assist River at Eastline Village in its efforts to inform and solicit applications from
persons who are not likely to apply to be tenants without special outreach. The County has contacts
in a number of public agencies that can be used as well as community gathering spots, such as
supermarkets, restaurants, senior centers, and laundromats, which often have bulletin boards used to
advertise apartment rentals. In addition, the County may use various media, such as TV and radio
public service spots, and local newspapers, to announce the program and availability of units
rehabilitated with HUD funding.
D. Affirmative Marketing Record-Keeping and Assessment:
1. The County will keep records on all program announcements, brochures distribution, articles
and radio/TV spots relating to the HOME Program. The County will ask persons calling to
inquire about the availability of HOME-assisted units how they first heard about the program
and whether they are aware of the Affirmative Marketing Policy.
2. River at Eastline Village will keep records on any advertising of the HOME-assisted units,
whether by ad in a newspaper, a posted notice, or a sign in the unit window, so that the
County may confirm compliance with this Affirmative Marketing Policy.
3. In addition, River at Eastline Village will provide information to the County on the lease
status of HOME-assisted units, so that the availability of the units for affirmative marketing
efforts is known.
4. River at Eastline Village will document and maintain a record throughout the Period of
Affordability the race, ethnicity and gender of the head of household of all tenants placed in a
HOME-assisted unit.
5. River at Eastline Village’s failure to demonstrate good faith in the correction of a violation of
this Affirmative Marketing Policy may result in termination of this Agreement and
disqualification from future funding under the HOME program.
All correspondence, notices, and advertisements related to the County HOME funds shall contain either
the Equal Housing Opportunity logo or slogan.
Projects assisted with County HOME funds must comply with the following procedures for the
Affordability Period (depending on the source of program funds):
1. Declarants advertising vacant units must include the Equal Housing Opportunity logo or
statement. Advertising media must include general audience and minority-owned newspapers, radio,
television, brochures, leaflets, or may involve simply a sign in a window.
2. The Declarants shall implement special outreach efforts to solicit applications for vacant units
from protected persons in the housing market who are least likely to apply for the housing assisted
with County HOME funds. Special outreach efforts should be designed to notify potential applicants
regardless of existing neighborhood racial or ethnic patterns, location of housing in the metropolitan
area, price, or other factors, and welcome them to apply and have the opportunity to rent.
3. The Declarants shall use community organizations, places of worship, employment centers, fair
housing groups, housing counseling agencies, social service centers, or medical service centers as
resources for this outreach.
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4. The Declarants must maintain a file containing all marketing efforts (i.e. copies of newspaper ads,
memos of phone calls, copies of letters, etc.) and the records to assess the results of these actions, and
make said documents available for inspection by the County.
5. The Declarants shall maintain a listing of all tenants residing in each unit at the time of
application submittal through the end of the compliance period.
The County will assess the affirmative marketing efforts of the Declarants by comparing predetermined
occupancy goals (based upon the area from which potential tenants will be drawn) to actual occupancy
data that the Declarants are required to maintain. Outreach efforts of the part of the Declarants will be
evaluated by reviewing marketing efforts.
The County will assess the efforts of the Declarants receiving County HOME funds during the rent-up
period and marketing of the units by use of a compliance certification or personal monitoring visit to the
project according to the County’s monitoring schedule.
Where the Declarants fail to follow the affirmative marketing requirements, corrective actions shall
include extensive outreach efforts to appropriate contacts to achieve occupancy goals, or other actions the
County may deem necessary.
Each unit of general local government that subgrants the administration of this program must adopt
affirmative marketing procedures that meet the requirement in paragraphs (a) and (b) of 24 CFR 92.351.
Reimbursements will be provided as set forth in Section 6 of the Agreement. River at Eastline Village
must submit written requests for all payments to the County’s Housing and Community Development
Department. Upon receipt, the County will review the request and all supporting documentation. Once
approved, the County will process payment within thirty (30) days.
River at Eastline Village will, at a minimum, submit the below supporting documentation with each
Request for Reimbursement (claim). Should a particular claim require additional documentation, the
County reserves the right to request additional reasonable information/documentation from River at
Eastline Village.
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EXHIBIT C- ADDITIONAL PROCEDURES/FORMS
ATTACHMENT 2: OCCUPANCY RESTRICTIONS AND PROJECT UNIT CHARACTERISTICS
This Attachment describes the specific affordability requirements and occupancy restrictions for the
Project required by the applicable program regulations and the project characteristics as described and
represented to the County by the Declarants in the materials described in Recital paragraph C. See I.R.C.
§ 42(f)(1). The Project shall be operated and maintained according to the unit mix and with the amenities
described herein.
1. Residential Rental Unit Mix. The Declarants acknowledges that the Project will contain 56 total
residential rental units of which, 0 are to be rented at market rates and 2 are County-Assisted Units. The
County-Assisted Units shall be Floating Units
2. Tenant Income and Rent Restrictions. The County-Assisted Units shall be rented to qualifying tenants
at the income levels and the rent limits described below:
[The following paragraphs may be deleted or revised as necessary to meet specific Project requirements]
a) At least [2] units comprising [1] one-bedroom units and [1] three-bedroom unit in the Project shall be
Low Program Rent units and must be occupied by low-income households initially earning no more
than 50% of the area median income adjusted by family size with rents not to exceed the lesser of: (1)
the Fair Market Rent or (2) the Low Program Rent.
b) For the purposes of distinguishing High Program Rent Units from Low Program Rent Units, increases
in tenant income are permitted as follows: In the event that the income of a tenant occupying a Low
Program Rent unit or a Very Low Program Rent unit increases but does not exceed 80% of the area
median income, that unit shall become a High Program Rent unit. To replace the Low Program Rent
unit or a Very Low Program Rent unit, the Declarants must rent the next available unit to a Low
Program Rent tenant or a Very Low Program Rent tenant as the case may be. The rent of the initial
tenant whose income has increased may be increased to the High Program Rent for the unit. This
process shall not increase the number of County-Assisted Units. If the tenant’s income increases
above 80% of the area median income, the unit shall still be considered to be a High Program Rent
unit but the tenant’s rent must be adjusted as described under paragraph 2(g), below. The next
available unit of comparable size or larger must be rented to tenants eligible for a County-Assisted
Unit and the rent can be adjusted as appropriate.
c) Annual Recertification of Tenant Income: The Declarants must reexamine the income of tenants
living in County-Assisted Units at least annually. Each recertification must take place on the
anniversary of the original income evaluation and lease signing, unless the Declarants has adopted an
annual schedule to perform all verifications at the same time.
d) Adjusting Rents for Over-Income Tenants: Over-income tenants in County-Assisted Units, as
described in paragraph 2(c), above, must pay 30% of their adjusted income for rent plus the
authorized utility allowance. If 30% of their adjusted income exceeds the fair market rent, the
Declarants may charge only up to the fair market rent. When state or local law imposes rent controls,
the rent control applies.
3. Supportive Services. The Declarants acknowledges that the following supportive services shall be
made available to tenants on the Project: Family Self-Sufficiency programming, case management and
outreach/education services.
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4. Amenities and Design Features. The Declarants acknowledges that the following amenities and
design features will be included in the Project upon completion of construction:
a) Project parking will consist of [65] total spaces.
b) Agreed upon Amenities for the project will be as follows:
c) Agreed upon Design Features specifically installed in the project include:
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EXHIBIT C- ADDITIONAL PROCEDURES/FORMS
ATTACHMENT 3: REQUEST FOR REIMBURSEMENT PROCEDURES
1. Cover letter to County on Gorman & Company, LLC’s letterhead, signed by River at Eastline
Village’s authorized official/representative
2. Status update of the project along with photos showing the progress of the construction
3. Match Log Form- including documentation of match funding sources received
4. Request for Reimbursement Form
5. Certified Request for Payment from Contractor
6. Contractor Invoices
7. Proof of payment-cancelled checks or EFT’s for all receipts submitted
8. System for Award Management (SAM.gov) documentation that all subcontractor’s are registered
to do business with the U.S. government and no contractor is debarred from doing business with
the U.S. government.
The County reserves the right to delay processing of reimbursements under this Agreement until
all required documents and back-up information is submitted to the County.
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EXHIBIT C- ADDITIONAL PROCEDURES/FORMS
ATTACHMENT 4: MATCH LOG FORM
Maricopa County #____________________________
HOME Funds Match Certification
Program Year: 2017 HOME Funds
Match Credits (from Non-Federal Sources) Match Application
Date Description and Source Amount of ITD Amount Date of HOME Amount of Applied TD Amou
Received of Match Credit Match Of Match Expenditure Project No. Expenditure Match (25%) Applied M
I certify that this representation of HOME Funds Match is accurate and the Match is from non-federal sources. All match contributions shall be approved by the County pri
submittal of reimbursement of expenses.
Signature Date:
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EXHIBIT C- ADDITIONAL PROCEDURES/FORMS
ATTACHMENT 5: SAMPLE REQUEST FOR REIMBURSEMENT COVER LETTER
AGENCY LETTERHEAD
Date
Rachel Milne, Assistant Director
Maricopa County Human Services Department
234 North Central Avenue
Phoenix, AZ 85004
Re: Project Name:
Quarterly Report Enclosed _____
Contract Number: ________________ Payment Request Number: _________
Environmental Release Date for Requested Activity: ____________
Dear _________________:
This letter certifies that ( Agency Name )(“River at Eastline Village”) has complied with the
requirements of the Department of Housing and Urban Development, Maricopa County, the HOME
Investment Partnerships Program and our HOME agreement for reasonable and necessary costs of
construction. River at Eastline Village additionally certifies that River at Eastline Village’s files,
including project management documentation files, and financial documentation of expenditures incurred
in accordance with the HOME program rules and regulations for eligible costs.
Therefore, River at Eastline Village respectfully requests reimbursement of funds in the amount of
$_________________ as established by the attached itemized expenditure invoice, other invoices, current
project status report, proof of payment and other supporting documentation. If you have any questions,
please contact me at _____________________.
Sincerely,
Signature: __________________________
Printed Name: _______________________
Title: _______________________________
Enclosures
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EXHIBIT C- ADDITIONAL PROCEDURES/FORMS
ATTACHMENT 6: REQUEST FOR REIMBURSEMENT FORM
This document is available in Excel format.
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EXHIBIT C- ADDITIONAL PROCEDURES/FORMS
ATTACHMENT 7: RENTAL SET UP AND COMPLETION FORM
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EXHIBIT C- ADDITIONAL PROCEDURES/FORMS
ATTACHMENT 8: SECTION 3 AND SECTION 3 SUMMARY REPORT-HUD FORM 60002
Section 3: 24 CFR Part 135.38
All Section 3 covered contracts and subcontracts for the project assisted under this agreement shall
include the following citation, verbatim:
A. The work to be performed under this contract is subject to the requirements of section 3 of the Housing
and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (section 3). The purpose of section 3
is to ensure that employment and other economic opportunities generated by HUD assistance or HUD-
assisted projects covered by section 3, shall, to the greatest extent feasible, be directed to low- and very
low-income persons, particularly persons who are recipients of HUD assistance for housing.
B. The parties to this contract agree to comply with HUD's regulations in 24 CFR part 135, which
implement section 3. As evidenced by their execution of this contract, the parties to this contract certify
that they are under no contractual or other impediment that would prevent them from complying with the
part 135 regulations.
C. The contractor agrees to send to each labor organization or representative of workers with which the
contractor has a collective bargaining agreement or other understanding, if any, a notice advising the
labor organization or workers' representative of the contractor's commitments under this section 3 clause,
and will post copies of the notice in conspicuous places at the work site where both employees and
applicants for training and employment positions can see the notice. The notice shall describe the section
3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship
and training positions, the qualifications for each; and the name and location of the person(s) taking
applications for each of the positions; and the anticipated date the work shall begin.
D. The contractor agrees to include this section 3 clause in every subcontract subject to compliance with
regulations in 24 CFR part 135, and agrees to take appropriate action, as provided in an applicable
provision of the subcontract or in this section 3 clause, upon a finding that the subcontractor is in
violation of the regulations in 24 CFR part 135. The contractor will not subcontract with any
subcontractor where the contractor has notice or knowledge that the subcontractor has been found in
violation of the regulations in 24 CFR part 135.
E. The contractor will certify that any vacant employment positions, including training positions, that are
filled (1) after the contractor is selected but before the contract is executed, and (2) with persons other
than those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed,
were not filled to circumvent the contractor's obligations under 24 CFR part 135.
F. Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this
contract for default, and debarment or suspension from future HUD assisted contracts.
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EXHIBIT C- ADDITIONAL PROCEDURES/FORMS
ATTACHMENT 9: MINORITY AND WOMEN’S BUSINESS ENTERPRISE (MBE/WBE)
REPORT
\
The County complies with HUD’s responsibilities under Executive Orders 11625, 12432 (concerning
Minority Business Enterprises) and 12138 (concerning Women’s Business Enterprises), making efforts to
encourage the use of minority and women’s business enterprises in connection with HOME-funded
activities. The purpose of this policy is to take affirmative steps to assure that small and minority
businesses, and women’s business enterprises are used, when possible, as a source of supplies, equipment,
construction and service. River at Eastline Village will take the following affirmative steps:
1. Include qualified small and minority businesses, and women’s business enterprises on solicitation
lists;
2. Assure that small and minority businesses, and women’s business enterprises, are solicited
whenever they are potential sources, particularly for purchases of supplies and materials;
3. When economically feasible, divide total requirements into smaller tasks or quantities to permit
maximum participation by small and minority business, and women’s business enterprises;
4. Where the requirement permits, establish delivery schedules, which encourage participation by
small and minority business, and women’s business enterprises; and
5. If any subcontracts are to be let, require the prime contractor to take the affirmative steps in 1
through 4 above.
6. The County will take similar appropriate affirmative action in support of small and minority
businesses, and women’s business enterprises.
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EXHIBIT C- ADDITIONAL PROCEDURES/FORMS
ATTACHMENT 10: ANNUAL RENTAL COMPLIANCE REPORT
A version of this form will be available in an Excel format.
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EXHIBIT D- CONTRACTOR CERTIFICATIONS
Section 1. 24 C.F.R. § 135.38 - SECTION 3 REQUIREMENTS. In this Section (1) River at Eastline
Village is referred to as the “contractor”.
A. The work to be performed under this Agreement is subject to the requirements of section 3 of
the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 170lu (Section 3).
The purpose of Section 3 is to ensure that employment and other economic opportunities
generated by HUD assistance or HUD-assisted projects covered by Section 3, will, to the
greatest extent feasible, be directed to low- and very low-income persons, particularly persons
who are recipients of HUD assistance for housing.
B. The parties to the Agreement agree to comply with HUD’s regulations in 24 C.F.R. Part 135,
which implement Section 3. As evidenced by their execution of the Agreement, the parties to
the Agreement certify that they are under no contractual or other impediment that would
prevent them from complying with the part 135 regulations.
C. The contractor agrees to send to each labor organization or representative or workers with
which the contractor has a collective bargaining agreement or other understanding, if any, a
notice advising the labor organization or workers’ representative of the contractor’s
commitments under this Section 3 clause, and will post copies of the notice in conspicuous
places at the work site where both employees and applicants for training and employment
positions can see the notice. The notice will describe the Section 3 preference, set forth
minimum number and job titles subject to hire, availability of apprenticeship and training
positions, the qualifications for each, and the name and location of the person(s) taking
applications for each of the positions; and the anticipated date the work shall begin.
D. The contractor agrees to include this Section 3 clause in every subcontract subject to
compliance with regulations in 24 C.F.R. Part 135, and agrees to take appropriate action, as
provided in an applicable provision of the subcontract or in this Section 3 clause, upon a
finding that the subcontractor is in violation of the regulations in 24 C.F.R. Part 135. The
contractor will not subcontract with any subcontractor where the contractor has notice or
knowledge that the subcontractor has been found in violation of the regulations in 24 C.F.R.
Part 135.
E. The contractor will certify that any vacant employment positions, including training positions,
that are filled (1) after the contractor is selected but before the contract is executed, and (2)
with persons other than those to whom the regulations of 24 C.F.R. Part 135 require
employment opportunities to be directed, were not filled to circumvent the contractor’s
obligations under 24 C.F.R. Part 135.
F. Noncompliance with HUD’s regulations in 24 C.F.R. Part 135 may result in sanctions,
termination of this contract for default, and debarment or suspension from future HUD assisted
contracts.
G. With respect to work performed in connection with section 3 covered Indian housing
assistance, section 7(b) of the Indian Self-Determination and Education Assistance Act (25
U.S.C. 450(e) also applies to the work to be performed under this contract. Section 7(b)
requires that to the greatest extent feasible (i) preference and opportunities for training and
employment shall be given to Indians, and (ii) preference in the award of contracts and
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subcontracts shall be given to Indian organizations and Indian-owned Economic Enterprises.
Parties to this contract that are subject to the provisions of section 3 and section 7(b) agree to
comply with section 3 to the maximum extent feasible, but not in derogation of compliance
with section 7(b).
Section 2. Compliance with Federal and State Immigration Laws
A. River at Eastline agrees to comply with the Immigration Reform and Control Act of 1986 (IRCA)
in performance under this Agreement and to permit the County or its agents to inspect personnel
records to verify such compliance. River at Eastline will ensure and keep appropriate records to
demonstrate that all employees have a legal right to live and work in the United States.
B. Under the provisions of A.R.S. § 41-4401, River at Eastline hereby warrants to the County that
the River at Eastline and each of its subcontractors (“Subcontractors”) will comply with, and are
contractually obligated to comply with, all Federal immigration laws and regulations that relate to
their employees and A.R.S. § 23-214(A) (“Contractor Immigration Warranty”).
C. A breach of the Contractor Immigration Warranty will constitute a material breach of this
Agreement and will subject the River at Eastline to penalties up to and including termination of
this Agreement at the sole discretion of the County.
D. The County retains the legal right to inspect the papers of any River at Eastline or Subcontractor
employee who works on this Agreement to ensure that the River at Eastline Village or
Subcontractor is complying with the Contractor Immigration Warranty. River at Eastline Village
agrees to assist the County in regard to any such inspections.
E. The County may, at its sole discretion, conduct random verification of the employment records of
River at Eastline Village and any subcontractors to ensure compliance with the Contractor
Immigration Warranty. River at Eastline Village agrees to assist the County in regard to any
random verification performed.
F. Neither the River at Eastline Village nor any of the Subcontractors shall be deemed to have
materially breached the Contractor Immigration Warranty if River at Eastline Village or
Subcontractor establishes that it has complied with the employment verification provisions
prescribed by sections 274A and 274B of the Federal Immigration and Nationality Act and the E-
Verify requirements prescribed by A.R.S. § 23-214, Subsection A.
Section 3. Drug-Free Workplace Requirements. The certification set out below is a material
representation upon which reliance is placed by HUD in awarding the grant. If it is later determined that
River at Eastline Village knowingly rendered a false certification, or otherwise violates the requirements
of the Drug-Free Workplace Act, HUD, in addition to any other remedies available to the Federal
Government, may take action authorized under the Drug-Free Workplace Act. River at Eastline Village
certifies that it will provide a drug-free workplace by doing all of the following:
A. Publishing a statement notifying employees that the unlawful manufacture, distribution,
dispensing, possession or use of a controlled substance is prohibited in the River at Eastline
Village’s workplace and specifying the actions that will be taken against employees for violation
of such prohibition.
B. Establishing a drug-free awareness program to inform employees about:
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1. The dangers of drug abuse in the workplace;
2. River at Eastline Village’s policy of maintaining a drug-free workplace;
3. Any available drug counseling, rehabilitation and employee assistance programs; and
4. The penalties that may be imposed upon employees for drug abuse violations occurring
in the workplace.
C. Making it a requirement that each employee to be engaged in the performance of the grant be
given a copy of the statement required by paragraph (A).
D. Notifying the employee in the statement required by paragraph (a) that, as a condition of
employment under the grant, the employee will:
1. Abide by the terms of the statement; and
2. Notify the employer of any criminal drug statute conviction for a violation occurring in
the workplace no later than five (5) days after such conviction;
E. Notifying the U.S. Department of Housing and Urban Development within ten (10) days after
receiving notice under subparagraph (D)(2) from an employee or otherwise receiving actual
notice of such convictions;
F. Taking one of the following actions, within thirty (30) days of receiving notice under
subparagraph (D)(2), with respect to any employee who is so convicted:
1. Taking appropriate personnel action against such an employee, up to and including
termination; or
2. Requiring such employee to participate satisfactorily in a drug abuse assistance or
rehabilitation program approved for such purposes by a federal, state or local health, law
enforcement, or other appropriate agency.
G. Making a good faith effort to continue to maintain a drug-free workplace through implementation
of paragraphs (A) through (F).
Section 4. Section 319 of Public Law 101-121. River at Eastline Village certifies, to the best of his or
her knowledge and belief, that:
A. No federal appropriated funds have been paid or will be paid, by or on behalf of River at Eastline
Village, 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, the undersigned shall
complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance
with its instructions.
C. River at Eastline Village shall require that the language of this certification be included in the
award documents for all sub-awards at all tiers (including subcontracts, sub-grants and contracts
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under grants, loans and cooperative agreements) and that River at Eastline Village shall certify
and disclose accordingly.
D. 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 31 U.S.C. § 1352. 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.
Section 5. Minority and Women’s Business Enterprise Policy (Region IX – San Francisco)
A. Pursuant to the County’s responsibilities under Executive Order 11625, 12432 and 12138 and in
support of directives from the Secretary of HUD, Region IX has developed an affirmative action
policy to further full participation of minority and women-owned business enterprise
(MBE/WBE) in all federally funded programs, including: Community Development Block
Grants. Such affirmative action and participation is specifically required under 2 CFR 200.
B. River at Eastline Village certifies that it will take affirmative steps to assure that small and
minority businesses and women’s business enterprises are utilized when possible as sources of
supplies, equipment, construction and services. Affirmative steps shall include the following:
1. Including qualified small and minority businesses on solicitation lists, e.g., solicitation of
bidding for construction, professional services or rehabilitation contracts.
2. Assuring that small and minority businesses are solicited whenever they are potential
sources, particularly for purchase of supplies and materials.
3. When economically feasible, dividing total requirements into smaller tasks or quantities
so as to permit maximum small and minority business participation.
4. Where the requirement permits, establishing delivery schedules that will encourage
participation by small and minority business.
5. If any subcontracts are to be let, requiring the prime contractor to take the affirmative
steps in 1 through 4 above.
C. River at Eastline Village shall take similar appropriate affirmative action in support of women’s
business enterprises.
Section 6. Equal Employment and Affirmative Action Policy Statement; Policy of
Nondiscrimination
A. River at Eastline Village agrees to consider each applicant for employment on the basis of his or
her qualifications for the job and without regard to race, religion, sex, marital status, age or
national origin. Nor will River at Eastline Village discriminate against any employee or applicant
for employment because of physical or mental disability in regard to any position for which the
employee or applicant for employment is qualified.
B. Every effort will be made by River at Eastline Village to ensure that appointments, promotions,
reclassifications, transfers, compensation, training, layoffs, terminations or any other type of
personnel actions are based on merit, fitness or other factors determined to be free of
discrimination.
C. River at Eastline Village undertakes a program of Affirmative Action, to which good faith efforts
will be directed to continue to:
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a. Determine the extent to which minorities and women are underutilized in major
categories and identify and eliminate the specific causes of such underutilization.
b. Identify and eliminate employment practices, which have an adverse impact on
minorities, females and other protected classes, and replace them with job related
practices.
c. Develop special recruitment efforts to locate qualified minority and female candidates in
order to help reduce underutilization.
d. Develop special recruitment efforts to locate qualified disabled candidates.
e. Establish monitoring systems which will assure effective operation of the affirmative
action program, achievement of its goals and means for modification of the plan as
needed.
D. River at Eastline Village agrees, to have or adopt a Policy of Nondiscrimination. Such Policy
shall state that River at Eastline Village does not discriminate in the admission or access to, or
treatment or employment in, its federally assisted programs or activities on the basis of race,
color, religion, sex, national origin, age, handicap or familial status.
By signing below, I acknowledge that I have read, understand, and agree to all of the provisions of River
at Eastline Village Certifications.
The River at Eastline Village, LLC,
A Wisconsin limited liability company
By: The River at Eastline Village MM, LLC
Its: Managing Member
By: GEC Eastline, LLC
Its: Manager
By: Gorman & Company, LLC
Its: Manager
(Described as “you” or “River at Eastline Village”
throughout the Agreement)
By: ______________________________________
Brian Swanton, President
Address: 200 N. Main Street
Oregon, WI 53575
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