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WHEN RECORDED, RETURN TO
City of Glendale
Attn: Community Revitalization Division
5850 W Glendale Ave, Suite 107
Glendale, AZ 85301
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
Home Investment Partnerships Program
CONTRACT #
Effective this _________ day of
, 2023, Glendale Leased Housing Associates I,
LLLP, a Minnesota limited liability limited partnership ("Declarant"); whose local address is 2905
Northwest Boulevard, Suite 150, Plymouth, Minnesota 55441, 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 City of Glendale, a body politic and corporate, by
and through the Community Services Department, Community Revitalization Division, an agency of the
City of Glendale, (collectively “City”) together with any successor and/or assignees to its rights, duties and
obligations.
RECITALS
A. The City has been authorized pursuant to Arizona Revised Statutes §9-441 et seq. to, among other
things, facilitate development of affordable housing in Arizona by providing funding for property
development through loans and grants.
B. Declarant and City have entered into a Developer Agreement of even date herewith.
C. Declarant owns a fee interest in the real property situated in City of Glendale, Arizona, commonly
known as 67 Flats and further described in Attachment I hereto (the "Property"), incorporated by this
reference. Declarant has all of the beneficial and equitable interest in and to the fee estate in the Property,
and is lawfully seized and possessed of the Property,
D. Declarant applied to the City for funding for the Project; and the City relied on the representations made
in the application for funding, including any documents, materials, reports, appraisals or studies, provided
by Declarant in support of the application for funding.
E. As consideration, in part, for funding awarded to the Declarant by the City, the Declarant agrees to bind
the Project and otherwise abide by the covenants, restrictions, duties and obligations set forth in this
Declaration.
F. 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 City to the Project, including
without limitation the HOME Program and other funding programs administered by the City.
G. The Declarant agrees that execution and recordation of this Declaration is a material condition to the
City’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:
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 on which
the last City-Assisted Unit is initially occupied and will end twenty (20) years from that date.
“Adjusted Income”, “Annual Income”, “Monthly Adjusted Income”, “Monthly Income” mean the
income amounts as determined by the Declarant in accordance with the definitions of these terms in 24
C.F.R. Pt. 5, subpart F.
“City” or “Beneficiary” means the City of Glendale by and through the Community Services
Department, Community Revitalization Division, as the context requires.
“City Guidance” means guidance provided from time to time by the City 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.
“Developer Agreement” means the Developer Agreement of even date herewith, executed by and
between the Declarant and the City that sets forth the terms and conditions of the City’s funding of the
Project.
“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. 888.111.
“Fixed Unit” means the specific units of a Project that have been permanently designated as “City-
Assisted Units” throughout the Affordability Period.
“Floating Units” means that the total number of City-Assisted Units in the Project is fixed for the
Affordability Period, but that the Declarant may from time to time change the designation of individual
units from a City-Assisted Units to unassisted units so long as the total number of City-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 City, 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 City, 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 Declarant in favor of the City for the purpose of memorializing and securing loans or grants of
financial assistance by the City 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 City, for all utility costs to be
paid by the tenant.
“Project” means Declarant's fee interest in the Property and all buildings, improvements, and
fixtures situated thereon and owned by Declarant (collectively, the "Improvements"), located within
the State of Arizona, City of Glendale at approximately 6504 N 67th Avenue, Glendale, AZ 85301 and
commonly known as 67 Flats 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 State of Arizona 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 household participation in the program
described under Section 8 of the Housing Act of 1937 (see 24 CFR Pt. 982, the Housing Choice
Voucher Program).
“City-Assisted Unit” means those three (3) Floating Units deemed to be assisted with City Housing
Funds and designated as City-assisted. The term City-Assisted Unit is synonymous with the term
“HOME-assisted unit” pursuant to Part 92 of title 24 of the Code of Federal Regulations.
“City Housing Funds” means funds made available by the City 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 City.
“Unassisted Units” means residential rental units other than City-Assisted Units.
“Utility Allowance” means the monthly utility allowance authorized by the City in accordance with
applicable program requirements for use in determining the maximum amount of rent allowable on a
City-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 Developer Agreement.
ii)
HOME Program requirements specifically identified in this Declaration and the Developer
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 2 shall apply
to all City-Assisted Units. During the Affordability Period Declarant will maintain the City-
Assisted Units as rental housing and rent or hold available for rental each City-Assisted Unit on a
continuous basis.
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. 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 City-Assisted Units.
d) Notwithstanding anything to the contrary, the City hereby agrees that Declarant's [Investor Limited
Partner] (as defined in Declarant's Amended and Restated Partnership Agreement) shall have the
right, but not the obligation, to cure any defaults of the Declarant hereunder and under the Loan
Documents, and the City agrees to accept cures tendered by Declarant's Investor Member on behalf
of the Declarant within the applicable cure periods set forth herein.
4. Tenants’ Rights. The Declarant shall abide by the following requirements when renting any City-
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 City-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 City-Assisted Unit as specified herein except for: material 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 not immediately terminate a lease of a City-Assisted Unit pursuant to A.R.S. § 33-1368 (A)
(2) if the applicable HOME Program regulations prohibit immediate termination of the lease.
d) The form of lease for any City-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 or is a beneficiary of HOME Tenant-Based Rental Assistance.
5. Tenant Selection. The Declarant must adopt written tenant selection policies and criteria for City-
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;
d) provide for the prompt written notification to any rejected applicant of the grounds for any
rejection; and
e) provide for 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 20 years from the date of initial
occupancy of the last City-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 City, the warranties, covenants, obligations, and duties described in this Declaration shall
terminate.
7. Monitoring and Enforcement. City 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 City 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 City 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.
b) Certifications. By March 15th of each year, the Declarant will submit such certifications as may be
identified in the Developer Agreement, in City Guidance, or otherwise reasonably required by the
City.
c) Books and Records. The Declarant shall keep and maintain at the Project all documents, books,
and records required by the Developer Agreement, applicable program requirements, and City
Guidance.
d) Information. The Declarant shall submit any other information, documents or certifications that
the City shall deem reasonably necessary.
8. Breach. a) The Declarant covenants and agrees to inform the City by written notice of any breach of
the Declarant's obligations hereunder within ten (10) 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 City within the cure period, the City may, without further notice,
declare a default under this Declaration, and the City 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 City, 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 City, the City shall be entitled to any
or all of the remedies described below:
a) If the City 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 City 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 City may:
i)
demand return of all funds provided by the City 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 City Housing 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 City to the Project.
ii)
The City shall be entitled to reimbursement of reasonable attorneys' fees and all costs
incurred in any judicial action in which the City shall prevail.
iii)
The City may require reasonable assurances of security for repayments required pursuant
to this section in the form of 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 City as Beneficiary.
c) The Declarant and the City 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
DECLARANT IN CONSIDERATION FOR RECEIVING CITY HOUSING FUNDS FOR THIS
PROJECT HEREBY AGREES AND CONSENTS THAT THE CITY 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.
10. Representations, Covenants and Warranties of Declarants. 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 City and all persons interested in Project compliance under the program
requirements. In performing its duties and obligations hereunder, the City may rely upon statements
and certificates of the Declarant pertaining to occupancy of the Project. In addition, the City may
consult with counsel, and the authorization and protection in respect of any action taken or suffered by
the City hereunder in good faith and in conformity with the opinion of such counsel shall be applicable
to the City's reliance upon such opinion of counsel. The Declarant further represents, covenants and
warrants to the City that:
a) Developer:
i)
is a limited liability limited partnership duly organized under the laws of the State of
Minnesota and qualified to transact 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.
c) The Declarant will, at the time of execution and delivery of this Declaration, have a fee interest in
the Property and good and marketable title to the 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 or will comply with program requirements and
that the City-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 2 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
Developer Agreement, the Qualified Allocation Plan, and relevant federal guidance and City
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 City’s agreement to provide funding to
the Project.
k) Release and Indemnification. The Declarant warrants, covenants and agrees that they have not
relied upon or sought any information from the City, 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 each Declarant’s application for funding through the City, 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 City, 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 City, 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 City. Furthermore, Declarant, and its successors and
assigns to indemnify the City, its agents, counsel and employees from any claim, loss, demand or
judgment, 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 reasonably necessary in the opinion of the City) 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, sexual orientation, gender identity, disability, 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 2.
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 3.
f) As a condition of occupancy, the Declarant shall require each applicant for tenancy of a City-
Assisted Unit to certify in writing to the City that the person’s sources and amount of income
declared for the purposes of program eligibility are true and correct. Existing tenants of City-
Assisted Units shall be required to certify the same to the City annually. In addition, the Declarant
shall require each applicant for tenancy to provide whatever other information, documentation, or
certifications deemed necessary by the City to verify the tenant’s eligibility for occupancy of a
City-Assisted Unit.
g) During the term of this Declaration, Declarant shall comply with all applicable 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 organization 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 City.
i) Project Records
i)
Declarant shall keep and maintain the Project Records described in 24 C.F.R. 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 each 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 six (6) 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 six (6) years following completion of the action and resolution of all issues which arise
from it, or for six (6) years following the end of the 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 City, 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 City, 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 City,
such consent not to be unreasonably withheld or delayed. In addition, the City 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 City 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 covenants and agrees not to dispose of less than all of its interest in
any building comprising the Project.
iii)
Except as specifically provided in the Developer 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 City-Assisted Units or Unassisted Units) during the effective term of
this Declaration, provided that this Declaration shall not apply to any encumbrance, conveyance or
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.
Notwithstanding anything to the contrary, the following transfers shall be permitted without the
prior consent of the City: (1) a transfer of Declarant's investor member interest and (2) replacement
of Declarant's general partner pursuant to the Amended and Restated Partnership Agreement,
provided that such replacement managing member is an affiliate of Developer.
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 City, 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 City 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 City and any remaining balance shall be paid
to Declarant. The City 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 City may, at
the City’s option, appeal from any such award in the name of Declarant. This provision shall be subject
and subordinate to any such rights held by any senior lender of the Project.
13. Covenants Run with the Land; Successors Bound Thereby
a) Upon execution and delivery by the Declarants, Declarant shall cause this Declaration and all
amendments and exhibits hereto to be recorded in the official records of the City recorder's office
in the City 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 City an executed original of the recorded Declaration showing the date, book and page
number of recording. Where pertinent, the City 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 City and
any past, present, or prospective tenant of a City-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 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 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 a
subordination or similar agreement executed by and between the City 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, 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 City-Assisted Unit.
16. Amendment. This Declaration may be amended with the prior written approval of the City 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 City. Each
Declarant hereby expressly agrees to enter into all amendments hereto which, in the opinion of the
City'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 City:
City of Glendale Community Revitalization Division
5850 W Glendale Ave, Suite 107
Glendale, AZ 85301
Attention: Matthew Hess, Administrator
With a copy to:
City of Glendale, City Attorney’s Office
5850 W Glendale Ave
Glendale, AZ 85301
And
City of Glendale, City Manager
5850 W Glendale Ave
Glendale, AZ 85301
To the Declarant:
Glendale Leased Housing Associates I, LLLP
5030 Nesbit Ferry Lane
Sandy Springs, GA 30350
Attention: David Searles
Phone: 678-570-1177
Email: davidsearles@crt-trust.com
With a copy to:
Glendale Leased Housing Associates I, LLC
2905 Northwest Boulevard, Suite 150
Plymouth, MN 55441
Attn: Owen Metz
With a copy to:
INVESTOR
And:
Winthrop & Weinstine, P.A.
225 S. 6th Street, Suite 3500
Minneapolis, MN 49502
Attn: John Nolde
The City, 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.
20. 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 City 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.
21. Venue. The Declarant consents to venue in the Arizona Superior Court for City of Glendale for any
legal action arising under this Declaration.
22. 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.
{SIGNATURES APPEAR ON FOLLOWING PAGE]
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
Declarant, below.
DECLARANT:
ACKNOWLEDGED
BY
CITY
OF
GLENDALE:
Glendale Leased Housing Associates I, LLLP, a
Minnesota limited liability limited partnership
By: Langston Hughes Glendale Family, LLC,
a Georgia limited liability company
Its: General Partner
By: Langston Hughes Affordable Housing, Inc., a
Georgia 501(c)(3) nonprofit corporation
Its: Manager
_______________________________
By: David Sewall Searles, Jr
Its: President
Kevin R. Phelps, City Manager
DATE
Attested to:
Julie K. Bower, City Clerk
DATE
APPROVED AS TO FORM:
Michael D. Bailey, City Attorney
STATE OF ____________
)
) ss
City of _____________ )
On this the ________ day of _____________, 2023, before me, a Notary Public, personally
appeared David Sewall Searles Jr., as president of Langston Hughes Affordable Housing, Inc., a Georgia
501(c)(3) nonprofit corporation, the manager of Langston Hughes Glendale Family, LLC, a Georgia
limited liability company, the general partner of Glendale Leased Housing Associates I, LLLP, a
Minnesota limited liability limited partnership, 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
ATTACHMENT 1
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF MARICOPA,
STATE OF ARIZONA, AND IS DESCRIBED AS FOLLOWS:
INSERT LEGAL DESCRIPTION (PENDING FINAL PLAT APPROVAL)
APN: XXX-XX-XXXX
ATTACHMENT 2
City of Glendale Program Income Limits and
Program Rent Limits
At least 3 units comprising 2 one-bedroom units and 1 two-bedroom unit in the Project shall be High
Program Rent units and must be occupied by low-income households initially earning no more than 60%
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 High Program Rent.
INCOME LIMITS
RENT LIMITS
Efficiency
1 BR
2BR
3 BR
4BR
5BR
6BR
Rent Limit
LOW
HOME
818
$
876
$
1,052
$
1,215
$
1,356
$
1,496
$
1,636
$
Rent Limit
HIGH
HOME
1,044
$
1,119
$
1,346
$
1,546
$
1,705
$
1,862
$
2,020
$
1,344
$
1,467
$
1,740
$
2,386
$
2,716
$
3,123
$
3,531
$
818
$
876
$
1,052
$
1,215
$
1,356
$
1,496
$
1,636
$
1,044
$
1,119
$
1,346
$
1,546
$
1,705
$
1,862
$
2,020
$
Effective June 15, 2023 and subject to change on an annual basis per HUD requirements.
Fair Market Rent:
50% Rent Limit
65% Rent Limit
Phoenix MSA
1 person
2 person
3 person
4 person
5 person
6 person
7 person 8+ person
30% AMI
19,650
$
22,450
$
25,250
$
28,050
$
30,300
$
32,550
$
34,500
$
37,050
$
(Very low)
50% AMI
32,750
$
37,400
$
42,100
$
46,750
$
50,500
$
54,250
$
58,000
$
61,750
$
60% AMI
39,300
$
44,880
$
50,250
$
56,100
$
60,600
$
65,100
$
69,600
$
74,100
$
(Low)
80% AMI
52,400
$
59,850
$
67,350
$
74,800
$
80,800
$
86,800
$
92,800
$
98,750
$
Effective June 15, 2023 and subject to change on an annual basis per HUD requirements.
ATTACHMENT 3
AFFIRMATIVE MARKETING PROCEDURES
All correspondence, notices, and advertisements related to the City Housing Funds shall contain either the
Equal Housing Opportunity logo or slogan.
Projects assisted with City Housing 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 City
Housing 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.
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 City.
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 City 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 City will assess the efforts of the Declarants receiving City Housing 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 City’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
City may deem necessary.
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