ROERS BUCKEYE DOWNTOWN LIMITED PARTNERSHIP CONTRACT.PDF
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C-22-23-016-X-00
Roers Buckeye Downtown Limited Partnership
Page 1 of 59
CONTRACT
BETWEEN
MARICOPA COUNTY
ADMINISTERED BY ITS
HUMAN SERVICES DEPARTMENT
AND
ROERS BUCKEYE DOWNTOWN LIMITED PARTNERSHIP
Contract Number: C-22-23-016-X-00
Contract Amount: $2,000,000
Contract Start Date: September 14, 2022
Contract Termination Date: September 30, 2024
ALN Number: 21.027 American Rescue Plan Act – Coronavirus State and Local Fiscal Recovery Funds
This financial Contract is entered into as of the Contract Start Date between Maricopa County, administered
by its Human Services Department (“County”), a political subdivision of the State of Arizona, and Roers
Buckeye Downtown Limited Partnership, Minnesota limited Partnership (“Contractor” or “Developer”). The
County and the Contractor are collectively referred to here as the “Parties” and individually as a “Party.”
1.0
CONTRACT TERM
This Contract is for a term listed above; however, all applicable terms and conditions of this
Contract, and any Exhibits hereto, shall remain valid for the entire Affordability Period as defined
in Exhibit C, Special Terms and Conditions, attached hereto and made a part hereof. (“Contractor”
will be referred to in Exhibit C – Special Terms and Conditions, as “Developer”).
2.0
OPTION TO RENEW
The County may, with the concurrence of the Contractor, renew the term of this Contract up to a
maximum of two years and three months. The Contractor shall be notified in writing by the County
of the County’s intention to renew the Contract term at least 60 calendar days prior to the expiration
of the original Contract term.
3.0
SPECIAL TERMS AND CONDITIONS TERM
Special Terms and Conditions (Exhibit C) Developer’s Contract Termination Date: 20 years from
the date of issue of Certificate of Occupancy.
4.0
CONTRACT COMPLETION
In preparation for Contract completion, the Contractor shall make all reasonable efforts for an
orderly transition of its duties and responsibilities to another provider and/or to the County. This
may include, but is not limited to, preparation of a transition plan and cooperation with the County
or other providers in the transition. The transition includes the transfer of all records and other data
in the possession, custody, or control of the Contractor that are required to be provided to the
County either by the terms of this agreement or as a matter of law.
5.0
AVAILABILITY OF FUNDS
5.1
The provisions of this Contract relating to payment for services shall become effective
when funds assigned for the purpose of compensating the Contractor as herein provided
are actually available to County for disbursement. The County shall be the sole judge and
authority in determining the availability of funds under this contract. County shall keep the
Contractor fully informed as to the availability of funds.
5.2
If any action is taken by, any State agency, Federal department, or any other agency or
instrumentality to suspend, decrease, or terminate its fiscal obligations under, or in
connection with, this contract, County may amend, suspend, decrease, or terminate its
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obligations under, or in connection with, this contract. In the event of termination, County
shall be liable for payment only for services rendered prior to the effective date of the
termination, provided that such services are performed in accordance with the provisions
of this contract. County shall give written notice of the effective date of any suspension,
amendment, or termination under this section, at least 10 days in advance.
6.0
DUTIES
The Contractor shall perform all duties stated in Exhibit B – Statement of Work, or as otherwise
directed in writing by the Human Services Department (as applicable).
7.0
TERMS AND CONDITIONS
7.1
INDEMNIFICATION
7.1.1
To the fullest extent permitted by law, and to the extent that claims, damages,
losses, or expenses are not covered and paid by insurance purchased by the
Contractor, the Contractor shall defend, indemnify, and hold harmless the County
(as Owner), its agents, representatives, officers, directors, officials, and employees
from and against all claims, damages, losses, and expenses (including, but not
limited to attorneys' fees, court costs, expert witness fees, and the costs and
attorneys' fees for appellate proceedings) arising out of the negligent acts, errors,
omissions, or mistakes of the Contractor, its agents, representatives, employees,
or subcontractors relating to the performance of this Contract.
7.1.2
Contractor's duty to defend, indemnify, and hold harmless the County, its agents,
representatives, officers, directors, officials, and employees shall arise in
connection with any claim, damage, loss, or expense that is attributable to bodily
injury, sickness, disease, death, or injury to, impairment of, or destruction of
tangible property, including loss of use resulting therefrom, caused by negligent
acts, errors, omissions, or mistakes in the performance of this contract, but only to
the extent caused by the negligent acts or omissions of the Contractor, a
subcontractor, anyone directly or indirectly employed by them, or anyone for
whose acts they may be liable, regardless of whether or not such claim, damage,
loss, or expense is caused in part by a party indemnified hereunder.
7.1.3
The amount and type of insurance coverage requirements set forth herein will in
no way be construed as limiting the scope of the indemnity in this section.
7.1.4
The scope of this indemnification does not extend to the negligence or willful
misconduct of County or any of the indemnitee.
7.2
INSURANCE
7.2.1
Contractor, at Contractor’s own expense, shall purchase and maintain, at a
minimum, the herein stipulated insurance from a company or companies duly
licensed by the State of Arizona and possessing an AM Best, Inc. category rating
of B++. In lieu of State of Arizona licensing, the stipulated insurance may be
purchased from a company or companies, which are authorized to do business in
the State of Arizona, provided that said insurance companies meet the approval of
County. The form of any insurance policies and forms must be acceptable to
County.
7.2.2
All insurance required herein shall be maintained in full force and effect until all
work or service required to be performed under the terms of the Contract is
satisfactorily completed and formally accepted. Failure to do so may, at the sole
discretion of County, constitute a material breach of this contract.
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7.2.3
In the event that the insurance required is written on a claims-made basis,
Contractor warrants that any retroactive date under the policy shall precede the
effective date of this Contract and either continuous coverage will be maintained,
or an extended discovery period will be exercised for a period of two years
beginning at the time work under this Contract is completed.
7.2.4
Contractor’s insurance shall be primary insurance as respects County, and any
insurance or self-insurance maintained by County shall not contribute to it.
7.2.5
Any failure to comply with the claim reporting provisions of the insurance policies
or any breach of an insurance policy warranty shall not affect the County’s right to
coverage afforded under the insurance policies.
7.2.6
The insurance policies may provide coverage that contains deductibles or self-
insured retentions. Such deductible and/or self-insured retentions shall not be
applicable with respect to the coverage provided to County under such policies.
Contractor shall be solely responsible for the deductible and/or self-insured
retention and County, at its option, may require Contractor to secure payment of
such deductibles or self-insured retentions by a surety bond or an irrevocable and
unconditional letter of credit.
7.2.7
The insurance policies required by this contract, except Workers’ Compensation
and Errors and Omissions, shall name County, its agents, representatives, officers,
directors, officials, and employees as additional insureds or additional loss payees
as applicable.
7.2.8
The policies required hereunder, except Errors and Omissions, shall contain a
waiver of transfer of rights of recovery (subrogation) against County, its agents,
representatives, officers, directors, officials, and employees for any claims arising
out of Contractor’s work or service.
7.2.9
If available, the insurance policies required by this Contract may be combined with
Commercial Umbrella Insurance policies to meet the minimum limit requirements.
If a Commercial Umbrella insurance policy is utilized to meet insurance
requirements, the Certificate of Insurance shall indicate which lines the
Commercial Umbrella Insurance covers.
7.2.9.1
Commercial General Liability
Commercial General Liability (CGL) insurance and, if necessary,
Commercial Umbrella insurance with a limit of not less than $2,000,000
for each occurrence, $4,000,000 Products/Completed Operations
Aggregate, and $4,000,000 General Aggregate Limit. The policy shall
include coverage for premises liability, bodily injury, broad form property
damage, personal injury, products and completed operations and
blanket contractual coverage, and shall not contain any provisions which
would serve to limit third party action over claims. There shall be no
endorsement or modifications of the CGL limiting the scope of coverage
for liability arising from explosion, collapse, or underground property
damage.
7.2.9.2
Errors and Omissions/Professional Liability Insurance
Errors and Omissions (Professional Liability) insurance which will insure
and provide coverage for errors or omissions or professional liability of
the architect engaged by the Contractor for the Project, with limits of no
less than $2,000,000 for each claim.
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7.2.9.3
Builder’s Risk (Property) Insurance
Contractor shall purchase and maintain, on a replacement cost basis,
Builders’ Risk insurance and, if necessary, Commercial Umbrella
insurance in the amount of the initial Contract amount, as well as
subsequent modifications thereto for the entire work at the site. Such
Builders’ Risk insurance shall be maintained until final payment has
been made or until no person or entity other than County has an
insurable interest in the property required to be covered, whichever is
earlier. This insurance shall include interests of County, Contractor, and
all subcontractors and sub‐subcontractors in the work during the life of
the Contract and course of construction and shall continue until the work
is completed and accepted by County. For new construction projects,
Contractor agrees to assume full responsibility for loss or damage to the
work being performed and to the structures under construction. For
renovation construction projects, Contractor agrees to assume
responsibility for loss or damage to the work being performed at least up
to the full Contract amount, unless otherwise required by the Contract
documents or amendments thereto. Builders’ Risk insurance shall be on
a special form and shall also cover false work and temporary buildings
and shall insure against risk of direct physical loss or damage from
external causes including debris removal, and demolition occasioned by
enforcement of any applicable legal requirements, and shall cover
reasonable compensation for architect’s service and expenses required
as a result of such insured loss and other “soft costs” as required by the
contract. Builders’ Risk insurance must provide coverage from the time
any covered property comes under Contractor’s control and/or
responsibility, and continue without interruption during construction,
renovation, or installation, including any time during which the covered
property is being transported to the construction installation site and
while on the construction or installation site awaiting installation. The
policy will provide coverage while the covered premises or any part
thereof are occupied. Builders’ Risk insurance shall be primary, and any
insurance or self‐insurance maintained by the County is not contributory.
If the Contract requires testing of equipment or other similar operations,
at the option of County, Contractor will be responsible for providing
property insurance for these exposures under a Boiler and Machinery
insurance policy or the Builders’ Risk Insurance policy.
7.2.10 Certificates of Insurance
7.2.10.1 Within ten (10) calendar days following the closing of construction
financing for the Project. the Contractor shall furnish the County with
valid and complete Certificates of Insurance, or formal endorsements as
required by the Contract in the form provided by the County, issued by
Contractor’s insurer(s), as evidence that policies providing the required
coverage, conditions and limits required by this Contract are in full force
and effect. Such certificates shall identify this Contract number and title.
7.2.10.2 In the event any insurance policy(ies) required by this Contract is (are)
written on a claims-made basis, coverage shall extend for two years past
completion and acceptance of Contractor’s work or services and as
evidenced by annual certificates of insurance.
7.2.10.3 If a policy does expire during the life of the Contract, a renewal certificate
must be sent to County 15 calendar days prior to the expiration date.
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7.2.10.4 Certificate holder shall be identified as:
Maricopa County
c/o Risk Management
301 W Jefferson St., Suite 910
Phoenix, AZ 85003
7.2.11 Cancellation and Expiration Notice
Applicable to all insurance policies required within the insurance requirements of
this contract, Contractor’s insurance shall not be permitted to expire, be
suspended, be canceled, or be materially changed for any reason without 30 days
prior written notice to Maricopa County. Contractor must provide to Maricopa
County, within ten business days of receipt, if they receive notice of a policy that
has been or will be suspended, canceled, materially changed for any reason, has
expired, or will be expiring. Such notice shall be sent directly to Maricopa County
Human Services Department and shall be mailed, or hand delivered to 234 N.
Central Avenue, Phoenix, AZ 85004, or emailed to the Human Services
representative noted in the Contract.
7.3
TERMINATION
Under A.R.S. § 38-511, the County may terminate this Contract at any time by giving the
Contractor at least sixty (60) calendar days prior notice in writing (unless terminated by the
County under the Availability of Funds provision). The notice shall be given to the persons
listed in this Contract.
7.4
TERMINATION FOR DEFAULT
7.4.1
Neither party shall place the other party in default unless and until the non-
defaulting party shall provide written notice of breach to the defaulting party and a
period of 30 days shall have expired without the defaulting party having cured the
alleged breach or, in the event such cure shall require in excess of 30 days, the
defaulting party having not commenced the cure of the alleged breach. Nothing
contained herein shall preclude the Parties from agreeing to provide additional time
for the cure of any alleged breach.
7.4.2
The County may, by written Notice of Default to the Contractor, terminate this
Contract in whole or in part if the Contractor fails to:
7.4.1.1
perform the services within the time specified in this Contract or any
extension;
7.4.1.2
make progress, so as to endanger performance of this contract; or
7.4.1.3
perform any of the other provisions of this contract.
7.4.3
The County’s right to terminate this Contract under these subparagraphs may be
exercised if the Contractor does not cure such failure after receipt of a Notice to
Cure from the County specifying the failure and time frame allowed in which to
remedy.
7.5
PERFORMANCE
It shall be the Contractor’s responsibility to meet the Contract performance requirements.
7.6
STATUTORY RIGHT OF CANCELLATION
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This Agreement is subject to cancelation by County pursuant to A.R.S. § 38-511.
7.7
ASSIGNMENT
The Contractor may not assign this Contract the written consent of the County. All
correspondence authorizing assignment must reference the Contract serial number and
identify the job or project.
7.8
AMENDMENTS
All amendments to this Contract shall be in writing and approved/signed by both parties.
Maricopa County Board of Supervisors shall be responsible for approving all amendments
for Maricopa County.
7.9
ADMINISTRATIVE CHANGE ORDERS
7.9.1
The Chairman of the Board of Supervisors is authorized upon the recommendation
of the Human Services Department Director and Legal Counsel to make changes
within the general scope of the Contract on behalf of the County through
Administrative Change Orders. Administrative Change shall be approved and fully
executed by the Chairman of the Board of Supervisors and the Contractor’s
authorized representative. Administrative Change Orders may address any of the
following areas:
7.9.1.1 Modifications to the project timeline if the last day of the project timeline is
within the Contract term;
7.9.1.2 Modifications to Budget line items if the Contract Amount remains
unchanged;
7.9.1.3 Modifications required by federal, state, or County regulations,
ordinances, or policies; and
7.9.1.4 Modifications to Administrative requirements such as changes in reporting
periods, frequency of reports, or report formats required by federal, state
or local regulations, policies or requirements.
7.9.2
It is the responsibility of the Contractor to ensure the latest documents are
consulted and followed.
7.10
RIGHTS IN DATA
7.10.1 The County shall have the use of data and reports resulting from a Contract without
additional cost or other restriction except as may be established by law or
applicable regulation. Each party shall supply to the other party, upon request, any
available information that is relevant to a Contract and to the performance
thereunder.
7.10.2 Data, records, reports, and all other information generated for the County by a third
party as the result of a Contract are the property of the County and shall be
provided in a format designated by the County or shall be and remain accessible
to the County into perpetuity.
7.11
ACCESS TO AND RETENTION OF RECORDS FOR THE PURPOSE OF AUDIT AND/OR
OTHER REVIEW
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7.11.1 The Contractor shall retain (physical or digital copies of) all books, records,
accounts, statements, reports, files, and other records and back-up documentation
relevant to this Contract for six years after final payment or until after the resolution
of any audit questions, which could be more than six years, whichever is longest.
The County, Federal or State auditors and any other persons duly authorized by
the County shall have full access to and the right to examine, copy, and make use
of, any and all said materials.
7.11.2 If the Contractor’s books, records, accounts, statements, reports, files, and other
records and back-up documentation relevant to this Contract are not sufficient to
support and document that requested services were provided, the Contractor shall
reimburse the County for the expenses not so adequately supported and
documented.
7.12
AUDIT REQUIREMENTS
In accordance with A.R.S. § 11-624, the Contractor shall, at its own expense, file with the
County by March 31st of each Agreement year, either:
7.12.1 Audited financial statements prepared in accordance with federal single audit
requirements; or
7.12.2 Financial statements prepared in accordance with generally accepted accounting
principles audited by an independent certified public accountant; or
7.12.3 A Comprehensive Annual Financial Report, prepared in accordance with generally
accepted accounting principles audited by an independent certified public
accountant.
7.13
AUDIT DISALLOWANCES
If at any time it is determined by the County that a cost for which payment has been made
is a disallowed cost, the County shall notify the Contractor in writing of the disallowance.
The course of action to address the disallowance shall be at sole discretion of the County,
and may include either an adjustment to future invoices, request for credit, request for a
check, or a deduction from current invoices submitted by the Contractor equal to the
amount of the disallowance, or to require reimbursement forthwith of the disallowed amount
by the Contractor by issuing a check payable to Maricopa County.
7.14
STRICT COMPLIANCE
Acceptance by County of a performance that is not in strict compliance with the terms of
the Contract shall not be deemed to be a waiver of strict compliance with respect to all
other terms of the contract.
7.15
VALIDITY
The invalidity, in whole or in part, of any provision of this Contract shall not void or affect
the validity of any other provision of the contract.
7.16
SEVERABILITY
The removal, in whole or in part, of any provision of this Contract shall not void or affect
the validity of any other provision of this contract.
7.17
NON-DISCRIMINATION
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Contractor agrees to comply with all provisions and requirements of Arizona Executive
Order 2009-09, including flow down of all provisions and requirements to any
subcontractors. Executive Order 2009-09 supersedes Executive Order 99-4 and amends
Executive Order 75-5 and is hereby incorporated into this Contract as if set forth in full
herein. During the performance of this contract, Contractor shall not discriminate against
any employee, client, or any other individual in any way because of that person’s age, race,
creed, color, religion, sex, disability, or national origin. (Arizona Executive Order 2009-09
can
be
downloaded
from
the
Arizona
Memory
Project
at
http://azmemory.azlibrary.gov/cdm/singleitem/collection/execorders/id/680/rec/1.)
7.18
WRITTEN CERTIFICATION PURSUANT to A.R.S. § 35-393.01
If Contractor or any subcontractor employed for the work engages in for-profit activity and
has 10 or more employees, Contractor certifies it is not currently engaged in, and agrees
for the duration of this agreement to not engage in, a boycott of goods or services from
Israel. This certification does not apply to a boycott prohibited by 50 U.S.C. § 4842 or a
regulation issued pursuant to 50 U.S.C. § 4842.
7.19
UNIQUE ENTITY IDENTIFIER (UEI) AND SYSTEM FOR AWARD MANAGEMENT
REGISTRATION
Funding for activities under this Contract are provided through under the American Rescue
Plan Act – Coronavirus State and Local Fiscal Recovery Funds Assistance Listing Number
(ALN) 21.027. All Contractors that receive Federal funding must obtain a UEI through
http://fedgov.dnb.com/webform. Contractor must also be registered and remain current
with the System for Award Management (SAM) at www.sam.gov, a database of basic
business information for Contractors that receive Federal funds.
7.20
CERTIFICATION REGARDING DEBARMENT AND SUSPENSION
7.20.1 The undersigned (authorized official signing on behalf of the Contractor) certifies
to the best of his or her knowledge and belief that the Contractor, its current
officers, and directors:
7.20.1.1
are not presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded from being awarded any
Contract or grant by any United States department or agency or any state,
or local jurisdiction;
7.20.1.2
have not within a three-year period preceding this contract:
7.20.1.2.1 been convicted of fraud or any criminal offense in
connection with obtaining, attempting to obtain, or as
the result of performing a government entity (Federal,
State or local) transaction or contract; or
7.20.1.2.2 been convicted of violation of any Federal or State
antitrust statutes or conviction for embezzlement,
theft, forgery, bribery, falsification or destruction of
records, making false statements, or receiving stolen
property regarding a government entity transaction or
contract;
7.20.1.2.3 are not presently indicted or criminally charged by a
government entity (Federal, State or local) with
commission of any criminal offenses in connection
with obtaining, attempting to obtain, or as the result of
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performing a government entity public (Federal, State
or local) transaction or contract;
7.20.1.3
are not presently facing any civil charges from any governmental
entity regarding obtaining, attempting to obtain, or from performing any
governmental entity Contract or other transaction; and
7.20.1.4
have not within a three-year period preceding this Contract had
any public transaction (Federal, State or local) terminated for cause or
default.
7.20.2 If any of the above circumstances described in the paragraph are applicable to the
entity an explanation of the matter including any final resolution must be provided
to the County.
7.20.3 The Contractor shall include, without modification, this clause in all lower tier
covered transactions (i.e., transactions with Subcontractors) and in all solicitations
for lower tier covered transactions related to this Contract.
7.21
VERIFICATION REGARDING COMPLIANCE WITH A.R.S. § 41-4401 AND FEDERAL
IMMIGRATION LAWS AND REGULATIONS
7.21.1 By entering into the contract, the Contractor warrants compliance with the
Immigration and Nationality Act (INA using E-Verify) and all other Federal
immigration laws and regulations related to the immigration status of its employees
and A.R.S. § 23-214(A). The Contractor shall obtain statements from its
subcontractors certifying compliance and shall furnish the statements to the
County upon request. These warranties shall remain in effect through the term of
the contract. The Contractor and its subcontractors shall also maintain
Employment Eligibility Verification forms (I-9) as required by the Immigration
Reform and Control Act of 1986, as amended from time to time, for all employees
performing work under the Contract and verify employee compliance using the E-
Verify system and shall keep a record of the verification for the duration of the
employee’s employment or at least three years, whichever is longer. I-9 forms are
available for download at www.uscis.gov.
7.21.2 The County retains the legal right to inspect documents of Contractor and
subcontractor employees performing work under this Contract to verify compliance
with paragraph 7.21.1 of this section. Contractor and subcontractor shall be given
reasonable notice of the County’s intent to inspect and shall make the documents
available at the time and date specified. Should the County suspect or find that the
Contractor or any of its subcontractors are not in compliance, the County will
consider this a material breach of the Contract and may pursue any and all
remedies allowed by law, including, but not limited to: suspension of work,
termination of the Contract for default, and suspension and/or debarment of the
Contractor. All costs necessary to verify compliance are the responsibility of the
Contractor.
7.22
CONTRACTOR EMPLOYEE WHISTLEBLOWER RIGHTS AND REQUIREMENT TO
INFORM EMPLOYEES OF WHISTLEBLOWER RIGHTS
7.22.1 The parties agree that this Contract and employees working on this Contract will
be subject to the Contractor employee whistleblower protections established by
Title 41 U.S.C. § 4712 and Section 3.908 of the Federal Acquisition Regulation.
7.22.2 Contractor shall inform its employees in writing, in the predominant language of
the workforce, of employee whistleblower rights and protections under 41 U.S.C.
§ 4712, as described in Section 3.908 of the Federal Acquisition Regulation.
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Documentation of such employee notification must be kept on file by Contractor
and copies provided to County upon request.
7.22.3 Contractor shall insert the substance of this clause, including this paragraph, in all
subcontracts over the simplified acquisition threshold ($250,000 as of June 2021).
7.23
UYGHUR FORCED LABOR PREVENTION ACT (UFLPA)
7.23.1 The Developer warrants and certifies that it does not currently, and agrees for the
duration of the contract that it will not, use:
7.23.1.1 The forced labor of ethnic Uyghurs in the People's Republic of China.
7.23.2 Any goods or services produced by the forced labor of ethnic Uyghurs in the
People's Republic of China.
7.23.3 contractors, subcontractors or suppliers that use the forced labor or any goods or
services produced by the forced labor of ethnic Uyghurs in the People's Republic
of China.
7.23.4 If the Developer becomes aware during the term of the Contract that the Company
is not in compliance with this paragraph, the Developer shall notify the County
within five business days after becoming aware of the noncompliance. Failure of
the Developer to provide a written certification that the Developer has remedied
the noncompliance within one hundred eighty (180) days after notifying the public
entity of its noncompliance, this Agreement shall terminate unless the Term of this
Agreement shall end prior to said one hundred eighty (180) day period.
7.24
CONTRACTOR LICENSE REQUIREMENT
The Contractor shall procure all permits, insurance, and licenses, and pay the charges and
fees necessary and incidental to the lawful conduct of his/her business, and as necessary
complete any requirements, by any and all governmental or non-governmental entities as
mandated to maintain compliance with and remain in good standing. The Contractor shall
keep fully informed of existing and future trade or industry requirements, and Federal,
State, and local laws, ordinances, and regulations which in any manner affect the fulfillment
of a Contract and shall comply with the same. Contractor shall immediately notify the
County of any and all changes concerning permits, insurance, or licenses.
7.25
CONFIDENTIAL INFORMATION
7.25.1 Any information obtained in the course of performing this Contract may include
information that is proprietary or confidential to the County. This provision
establishes the Contractor’s obligation regarding such information.
7.25.2 The Contractor shall establish and maintain procedures and controls that are
adequate to assure that no information contained in its records and/or obtained
from the County or from others in carrying out its functions (services) under the
Contract shall be used by or disclosed by it, its agents, officers, or employees,
except as required to efficiently perform duties under the contract. The Contractor’s
procedures and controls, at a minimum, must be the same procedures and controls
it uses to protect its own proprietary or confidential information. If, at any time
during the duration of the contract, the County determines that the procedures and
controls in place are not adequate, the Contractor shall institute any new and/or
additional measures requested by the County within 15 business days of the
written request to do so.
7.25.3 Any requests to the Contractor for County proprietary or confidential information
shall be referred to the County for review and approval, prior to any dissemination.
7.26
INTEGRATION
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This Contract represents the entire and integrated agreement between the Parties and
supersedes
all
prior
negotiations,
proposals,
communications,
understandings,
representations, or agreements, whether oral or written, expressed, or implied.
7.27
UNIFORM ADMINISTRATIVE REQUIREMENTS
By entering into this contract, the Contractor agrees to comply with all applicable provisions
of
Title
2,
Subtitle
A,
Chapter
II,
Part
200—UNIFORM
ADMINISTRATIVE
REQUIREMENTS, COST PRINCIPLES, AND AUDIT REQUIREMENTS FOR FEDERAL
AWARDS contained in Title 2 C.F.R. § 200 et seq.
7.28
GOVERNING LAW
This Contract shall be governed by the laws of the State of Arizona. Venue for any actions
or lawsuits involving this Contract will be in Maricopa County Superior Court, Phoenix,
Arizona.
7.29
SPECIAL TERMS AND CONDITIONS AGREEMENT
Special terms and conditions can be found in Exhibit C – SPECIAL TERMS AND
CONDITIONS which are incorporated herein and made a part hereof.
7.30
ORDER OF PRECEDENCE
If there is any conflict between the terms of this Contract and any exhibit to this Contract,
unless otherwise specified, the terms of this Contract shall prevail.
7.31
INCORPORATION OF DOCUMENTS
7.31.1 The following are to be attached to and made part of this Contract:
7.31.1.1
EXHIBIT A – CONTRACTOR INFORMATION
7.31.1.2
EXHIBIT B – STATEMENT OF WORK
7.31.1.2.1 Attachment B1: Project Description
7.31.1.2.2 Attachment B2: Budget
7.31.1.2.3 Attachment B3: Proposed Project Schedule
7.31.1.2.4 Attachment B4: Budget Amendment Request Form
7.31.1.2.5 Attachment B5: Income and Rent Limits
7.31.1.2.6 Attachment B6: Utility Allowances
7.31.1.3
EXHIBIT C – SPECIAL TERMS AND CONDITIONS
7.31.1.4
EXHIBIT D – ADDITIONAL PROCEDURES/FORMS
7.31.1.4.1 Attachment D1: Affirmative Marketing and Fair
Housing Policies and Procedures
7.31.1.4.2 Attachment D2: Occupancy Restrictions and Project
Unit Characteristics
7.31.1.4.3 Attachment D3: Prohibited Lease Provisions
7.31.1.4.4 Attachment
D4:
Request
for
Reimbursement
Procedures
7.31.1.4.5 Attachment D5: Sample Request for Reimbursement
Cover Letter
7.31.1.4.6 Attachment D6: Request for Reimbursement Form
7.31.1.4.7 Attachment D7: ARPA Progress Report
7.31.1.4.8 Attachment D8: Annual Rental Compliance Report
7.31.1.5
EXHIBIT E – SECURITY INSTRUMENTS
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7.31.1.5.1 Attachment E1: Sample Declaration and Assignment
of Affirmative Land Use; Deed of Trust; Promissory
Note
7.32
NOTICES
All notices given pursuant to the terms of this Contract shall be addressed to:
For County:
Maricopa County Human Services Department
Housing and Community Development
234 N. Central Ave., Third Floor,
Phoenix, AZ 85004
Attention: Assistant Director
Phone Number: 602-506-1528
For Contractor:
Roers Buckeye Downtown Limited Partnership
Address: Two Carlson Parkway #400, Plymouth, MN 55447
Attention: Kevin Sturgeon
Phone: 651-395-0684
Email: kevin.sturgeon@roerscompanies.com
7.33
INQUIRIES
Administrative telephone/email inquiries shall be addressed to:
Jamie Macfarlane, Affordable Housing Development Coordinator
TELEPHONE: (602)506-5813
Jamie.Macfarlane@maricopa.gov
Inquiries may be submitted by telephone but must be followed up in writing. No oral
communication is binding on Maricopa County.
[signature page follows]
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IN WITNESS WHEREOF, this Contract is executed on the date set forth above.
ROERS BUCKEYE DOWNTOWN LIMITED PARTNERSHIP, A MINNESOTA LIMITED PARTNERSHIP
AUTHORIZED SIGNATURE
PRINTED NAME AND TITLE
ADDRESS
DATE
MARICOPA COUNTY
CHAIRMAN, BOARD OF SUPERVISORS
DATE
ATTESTED:
CLERK OF THE BOARD
DATE
APPROVED AS TO FORM:
DEPUTY COUNTY ATTORNEY
DATE
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EXHIBIT A-CONTRACTOR (DEVELOPER) INFORMATION
FEDERAL TAX ID #
86-1685607
COMPANY NAME:
Roers Buckeye Downtown Limited Partnership
DOING BUSINESS AS (dba):
MAILING ADDRESS:
Two Carlson Parkway #400, Plymouth, MN 55447
REMIT TO ADDRESS:
Two Carlson Parkway #400, Plymouth, MN 55447
TELPHONE NUMBER:
651-395-0684
REPRESENTATIVE NAME:
Kevin Sturgeon
REPRESENTATIVE TELEPHONE NUMBER:
651-395-0684
REPRESENTATIVE EMAIL ADDRESS
kevin.sturgeon@roerscompanies.com
Payment Terms Net 0
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EXHIBIT B – STATEMENT OF WORK
Attachment B1: Project Description
Project Description:
The Project as described herein, Solana Villas Apartments, shall utilize ARPA funds to construct a 200-unit
affordable rental housing community. The Project is located at 25201 W MC 85 Buckeye AZ 85326 (the
“Property”), on approximately 10.68 acres of land. Solana Villas shall consist of: twelve (12) one-bedroom
units, ninety-six (96) two-bedroom units, and ninety-two (92) three-bedroom units.
ARPA funds as well as 4% Low Income Housing Tax Credits (“LIHTC”), Tax Exempt Bonds from AZIDA,
and a Freddie Mac Tax-Exempt Loan (TEL) shall be used to finance the Project.
ARPA funds in the amount of $2,000,000 are being sought to offset the eligible acquisition, hard
construction cost and site planning including Architectural and Engineering fees. All 200 Project units shall
be affordable housing units with rent and income restrictions set aside to serve households earning at or
below 60% of Maricopa County’s Area Median Income (AMI). The income restrictions on the Project must
be maintained during the entire 20-year Period of Affordability. The APRA funds shall be used to construct
six (6) ARPA-assisted “floating” units at the Property (ARPA-assisted units”). During the twenty (20) year
Period of Affordability (as defined in the Agreement), the six (6) ARPA-assisted floating units shall consist
of; (a) three (3) two-bedroom units; and (b) three (3) three-bedroom units. The term “floating” in this
Agreement shall be defined as set forth in 24 C.F.R. § 92.252(j). The income restrictions on the ARPA-
assisted units must be maintained during the entire Period of Affordability.
The Project will include nine (9), garden style walk-up apartment buildings, with amenities that include a
clubhouse, central laundry, a fitness center, picnic areas, carports, playground, swimming pool, tot lot, on-
site management, service coordinators, video surveillance and free WIFI in common areas. The Project will
be gated and shall also offer 203 off-street surface parking spaces free for the tenants.
The square footage for each unit type is 707 square feet in one-bedrooms units, 997 square feet in two-
bedroom units and 1,207 square feet in three-bedroom units. The unit amenities include blinds, ceiling fans,
walk-in closets and central A/C. Appliances shall include dishwasher, microwaves, refrigerator, and
range/oven.
Project Eligibility:
Property Standards - Housing that is constructed or rehabilitated with ARPA 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 shall meet decent, safe and sanitary housing standards consistent with Section 42 of
the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations promulgated thereunder
(the “LIHTC Regulations”), 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 Project staff shall determine and verify income eligibility of tenants for the
ARPA assisted-units prior to occupancy of a unit. The occupancy of the ARPA-assisted units must be by
households whose income is at or below 60% of area median gross income (“AMI”) (very low income)
throughout the Period of Affordability; see Exhibit B, Attachment B5: HOME Income and Rent Limits.
The Project shall define “Gross Income” as it is defined in the LIHTC Regulations and shall document
sources of income and examine eligibility on an annual basis in order to meet requirements of the LIHTC
regulations. Additional guidance and resources are outlined in Exhibit D, Attachment D2: Occupancy
Restrictions and Project Unit Characteristics.
Rental Requirements - The ARPA-assisted units shall be rent restricted such that the gross rent with
respect to such units does not exceed 30 percent of the imputed income limitation that would be applicable
to such unit as provided by Section 42(g)(2) of the Code based on qualified occupancy by households
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whose income is at or below 60% AMI in accordance with LIHTC Regulations (“60% AMI LIHTC Rents”),,
as outlined in Exhibit B, Attachment B5: Income and Rent Limits. Utility Allowances are outlined in
Exhibit B, Attachment B6: Utility Allowances. The 60% AMI LIHTC Rents are the maximum rent allowed
for a ARPA-assisted unit; the maximum rent amount includes the utility allowance. Any increase in these
rent limits must be approved by HUD and the State of Arizona Department of Housing. The Developer shall
provide to the County a written request for the increase in rent limits and supporting documentation for the
justification of this request.
Affordability Period – The Developer shall ensure all housing assisted under this Agreement meets the
affordability requirements of Section 42(g) of the Code, and all ARPA-assisted units shall satisfy the Occupancy
and Rental Requirements stated above for a period of not less than 20 years following placement in service of
the Project, as evidenced by issuance of a certificate of occupancy by the County and/or other applicable
permitting authority with jurisdiction over the Project.
Deliverables
Beneficiaries
Number of households (units)
6
Number of people (approximate)
18
Use of ARPA Funds - The ARPA funds provided under this Agreement shall be used for the cost detailed
in the budget found in Attachment B2.
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EXHIBIT B – STATEMENT OF WORK
Attachment B2: Budget
FUND SOURCES
Sources
Total
Maricopa County ARPA Funds
$2,000,000
Total
$2,000,000
BUDGET SUMMARY
Name of Activity: Solana Villas
ARPA Funds
Acquisition Costs
$ 2,000,000
TOTALS
$2,000,000
The funding being provided pursuant to this Agreement shall be spent on Construction Hard Costs,
residential only. In the event Developer seeks to expend funds for other than Construction Hard Costs
residential, Developer shall obtain prior written approval from the County before expending any funds for
such item. None of the funds provided pursuant to this Agreement may be expended for anything that does
not meet ARPA eligibility requirements. The County shall not reimburse any funds expended that do not
meet ARPA eligibility requirements.
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EXHIBIT B – STATEMENT OF WORK
Attachment B3: Proposed Project Schedule
Project Milestone
Estimated
Completion
Date
Comments
Site Acquisition
3/15/2022
Construction Loan (Closing Date)
9/26/2022
Partnership
Closing
(Closing
Date)
9/26/2022
Permanent Loan Commitment
9/19/2022
Permanent Loan Closing
9/26/2022
Other Funds Firm Commitment
Source:
Other Funds Firm Commitment
Source:
Environmental
Review
Completion
9/1/2022
Authority to Use Grant Funds
9/20/2022
Zoning Entitlements
11/2/2021
Plans
Submitted
to
the
Municipality
08/1/2022
Civil Permits Issued
9/20/2022
Building Permits Issued
9/20/2022
Contractors Notice to Proceed
Issued
10/3/2022
Construction Mobilization
10/10/2022
25% Completion
4/20/2023
50% Completion
10/20/2023
75% Completion
3/20/2024
Certificate of Occupancy
6/1/2024
ARPA-Assisted Units Occupied
100% Occupancy
09/30/2024
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EXHIBIT B – STATEMENT OF WORK
Attachment B4: Budget Amendment Request Form
Please complete the form below to be considered for an Agreement amendment. This form must be
completed for each type of amendment requested.
Requested Amendment for:
Project Number
Developer
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 over
$
From Program Year:
*Required Attachment
A revised implementation schedule showing when major milestones shall 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
Amendment to Scope of Work
Please include a description of the Original Scope of Work.
Please include a description of Proposed Amendment(s).
Budget
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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
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
FOR OFFICE USE ONLY
Recommended for Approval
Not Recommended for Approval due to: _______________________________________
________________________________________
____________________________
Staff Signature
Date
________________________________________
______________________________
Assistant Director Signature
Date
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EXHIBIT B – STATEMENT OF WORK
Attachment B5: Income and Rent Limits
Updated LIHTC income and rent limits are published on an annual basis by the Arizona Department of
Housing (“ADOH”). These limits are adjusted annually by the ADOH and the U.S. Department of Housing
& Urban Development (HUD) in accordance with the LIHTC Regulations. The Developer can request the
updated limits from the County or by going to ADOH’s website for the updated versions each year, which
are presently accessible at: https://housing.az.gov/documents-links/forms/rent-limits.
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EXHIBIT B – STATEMENT OF WORK
Attachment B6: Utility Allowances
Utility Allowance Determination - A utility allowance must be used when determining all eligible unit rents
only if, and only for, utilities that are paid directly by the resident. If all utilities are provided by the
owner/agent, there is no utility allowance. A copy of the current utility allowance schedule must be submitted
to the County each year with the Annual Report. It is noted that utility allowance schedules often remain
the same from year to year. If the table has not changed, the owner/agent should include a copy of a letter
so stating from the appropriate authority dated in the calendar year covered by the annual report.
If a project is receiving both ARPA and LIHTC funding, a County may coordinate with the LIHTC agency to
obtain a project-specific agency estimate or may accept a UA approved by the LIHTC agency based on its
actual usage methodology.
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EXHIBIT C – SPECIAL TERMS AND CONDITIONS
Funding Completion Date: September 30, 2024
Developer: Roers Buckeye Downtown Limited Partnership
ANL Number: ANL 21.027 American Rescue Plan Act Coronavirus State and Local Fiscal Recovery Funds
These Special Terms and Conditions are attached to this Contract
1.
The County is the recipient of funds from the United States of America pursuant to the
American Rescue Plan Act of 2021 (ARPA).
2.
The purpose of these Special Terms and Conditions is to set forth the basis pursuant to
which the County will provide to Developer money from the allocation of ARPA funds made available to
HSD, and to establish that the failure of Developer to abide by or perform any of these term or condition
shall result in the breach of the Contract.
3.
The following words and phrases shall have the definitions set forth when used in this
Agreement:
a. “Claim for reimbursement” means the process and procedures the Developer must use to
obtain the disbursal of the funds being provided pursuant to the Contract.
b. “Declaration” means a document executed by Developer and recorded in the office of the
Maricopa County recorder against the Project Property restricting units, or some of them,
in the Project as available only to residents who income qualify for a period that is not
shorter than twenty (20) years.
c. “Deed of Trust” means a security instrument executed by Developer and recorded in the
office of the Maricopa County Recorder that secures the repayment of the funds advanced
to the Developer under certain conditions set forth in the document.
d. “Obligations Secured” means the Promissory Note, the Contract and the Declaration to be
executed and, as appropriate, recorded in connection with securing the repayment of the
funds to Developer under certain conditions set forth in those documents.
e. “Period of Affordability” means a term of twenty (20) years, commencing on the date any
certificate of occupancy is issued to the Project, during which all housing assisted under
the Contract shall satisfy the requirements set forth on Exhibit D, attachment D2 to the
Contract.
f.
“Project” means Solana Villas, all as submitted to the County by Developer.
g. “Promissory Note” means a document evidencing Developer’s promise to repay the funds
advanced under certain conditions set forth in the document.
h. “Work” shall mean the acquisition of the property, the designing of the Project, the obtaining
of all necessary permits, approvals and land rights for the Project, the overseeing of
management of the Project, the completion of leases to qualified tenants who shall reside
in the Project and eligible on-site supportive services.
4.
Developer shall complete all Work as described on Exhibit B to the Contract.
5.
County will provide funding to Developer, subject to the availability of funds, and all terms
and conditions of the Obligations Secured, in the amount of $2,000,000, which funding shall be used
exclusively for Work. In no event will any funding be provided as reimbursement for monies paid for Work
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performed prior to the effective date of the Contract. Failure to meet the obligations of the Contract may
result in a demand for repayment of the funds.
6.
Funding is contingent upon all housing in the Project complying with the affordability
requirements, that are further described on Exhibit D to the Contract. Failure to comply with the affordability
requirements is a material breach of the Contract and these Special Terms and Conditions, and Developer
shall repay the County any and all funds disbursed for any purpose other than funding compliant housing
unit(s).
7.
Prior to any funds being disbursed, Developer shall deliver to the County a fully authorized
and executed Declaration and Assignment of Affirmative Land Use, and a Deed of Trust, which documents
shall be recorded in the Maricopa County Recorder’s Office, to attach to the Project. The forms for such
documents are attached to the Contract as Exhibit E, attachment E1. Declaration and Assignment of
Affirmative Land Use shall bind the property of the Project to provide affordable housing to the tenants who
are to reside in the Project during the entirety of the Affordability Period. In no event shall said Declaration
be removed of record or modified in any manner without the prior written consent of the County.
8.
Prior to any funds being disbursed, Developer shall deliver to the County a copy of all
proposed forms of lease that will be required to be executed by prospective residents of the Project. No
funds will be disbursed unless and until the County approves all proposed forms of lease.
9.
Funds will be disbursed as repayment of costs for Work performed on or after the effective
date of the Contract. At the discretion of the Maricopa County Board of Supervisors, this date may be
extended, but in no event will this date be extended beyond December 31, 2026, or such other date as may
be established by the United States Government. To obtain such repayment costs, Developer shall:
a. Submit a claim for reimbursement. The payment procedures and sample forms for a
properly executed claim are shown on Exhibit D, attachments D4-D6 of the Contract:
(1) submit monthly reimbursement requests to County unless monthly expenditures for
the activity do not exceed One Thousand Dollars ($1,000.00). County agrees to
reimburse for actual allowable costs incurred, upon submittal of an itemized statement
of actual expenditures incurred, supported by back up documentation, invoices and
copies of checks showing payment of invoices
(2) .submit to the County a Request for Reimbursement of all expenditures within the same
fiscal year in which the expenditures are incurred. The fiscal year runs July 1st through
June 30th and all Requests for Reimbursement shall be submitted no later than July
15th for the preceding fiscal year.
(3) All requests for reimbursement shall be submitted to:
HSDFINANCE@MARICOPA.GOV
b. Submit a request for inspection of the Work performed.
c. Not submit a claim for reimbursement until the funds are needed for payment related to
Work.
d. Submit its initial claim for reimbursement not later than 180 days from the effective date of
the Contract.
e. Not submit more than one claim for reimbursement in the same calendar month.
10.
Upon receipt of a claim for reimbursement from the Developer, the County will:
a. Review the claim for reimbursement to ensure compliance with applicable requirements
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pursuant to the Contract. The approval of payment based on a claim for reimbursement is
at the County’s discretion.
b. Notify the Developer of any deficiencies in the claim for reimbursement and itemize what
additional information, if any, is need.
c. Conduct, if, in the opinion of the County it is necessary, an inspection of the Project.
d. Disburse all funds for which and to the extent of approval of the submitted claim for
reimbursement in the manner, amount, increment, and timeframe determined at County’s
discretion.
11.
Final Reimbursement Upon Contract Termination
a. Upon termination of this Agreement, at the date identified on page 1 of this
Agreement, or as may be amended, the Contractor shall submit the final
reimbursement request:
(1) This request shall be submitted no later than 30 calendar days after the termination
date except as noted immediately below.
(2) If the termination date is between June 10 and June 30, then the final reimbursement
request shall be submitted by July 10.
12.
Funding is contingent upon the availability of funds. If any action is taken by any State
agency, federal department or any other agency or instrumentality to suspend, decrease or terminate its
fiscal obligation under, or in connection with the Contract, the County may amend, suspend, decrease or
terminate its obligations under or in connection with the Contract. In the event of termination, the County
will, subject to the provisions of paragraphs 8, 9, 10, 11 and 113 hereof, disburse funds for Work performed
prior to the effective date of the termination. The County will give written notice of the effective date of any
suspension, amendment, or termination under this Section at least 10 calendar days in advance.
13.
Prior to occupancy of the Project the total sum of all claims for reimbursement shall not
exceed ninety-five percent (95%) of total funding to Developer by the County pursuant to the Contract.
Developer shall submit all claims for reimbursement, including the final claim for reimbursement post
issuance of the final certificate of occupancy, not later than September 30, 2024, unless extended pursuant
to paragraph 11 hereof. The term “occupancy” for purposes of obtaining the balance of funding for the
Project will be as defined on Exhibit D, attachment D2 attached hereto and made a part hereof. However,
in no event will the balance of funds be released to Developer unless and until all project beneficiaries are
named and income qualified.
14.
The County will not be liable for any contracts entered into by Developer in anticipation of
receiving payments under the Contract.
15.
Not later than July 30 of each year and continuing until the expiration of the Affordability
Period, unless otherwise determined by the Human Services Department but not to exceed a 5-year period
per 2 CFR Part 200.330. Developer shall provide to the County:
a. A copy of the then current rent rolls.
b. Proof that all residents of the Project are qualified by income to reside in the Project.
c. A copy of the then current forms of lease required to be executed by residents of the
Project.
d. Such other information as, in the sole discretion of the County, is necessary to demonstrate
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to the County that all requirements with respect to affordability are satisfied.
e. Schedule with the County an inspection to allow the County to ensure all units are in
compliance with Housing Quality Standards (HQS).
16.
Notwithstanding any reporting obligations set forth herein, Developer shall provide any and
all progress reports attached to ARPA funding by the federal government, the State of Arizona and/or the
County. Furthermore, until “occupancy” of the Project as defined on Exhibit D, attachment D2 attached
hereto and made a part hereof, Developer shall provide County with progress reports not less frequently
than 15 days after the end of each calendar quarter, providing the information required by and on the form
attached hereto as Exhibit D, attachment D7. In addition to the obligations set forth herein, Developer shall,
simultaneously with the reporting obligation of the receiving entity, provide County with a copy of all reports
and filings made with the federal government and/or the State of Arizona and/or any municipality, with
respect to the Project.
17.
Developer shall comply with any and all federal, state and local statutes, ordinances,
resolution, regulations and rules, and any violation of any such law shall be deemed to be a material breach
of the Contract. Specifically, Developer shall comply with all applicable provisions of American Rescue Plan
Act 2021 and the Coronavirus State and Local Fiscal Recovery Funds.
18.
Developer must receive prior written approval from the County for all Project amendments
involving material changes in the scope of the work, completion dates of project phases, location of
approved activities, or budget set forth on Attachment B2. Minor variations in unit square footage or
amenities shall not be deemed material.
19.
The parties shall execute and deliver all such documents and perform all such acts as
reasonably may be requested by the other party in order to conduct the activities described herein and to
enforce the applicable affordability requirements, including without limitation one or more commercially
reasonable subordination agreements and/or escrow disbursing agreements.
20.
Developer shall acknowledge the contribution of the County in all related publications
during the Term of the Contract. Developer shall not use the name of Maricopa County in any other manner
without prior written consent. Developer shall not use the County of Maricopa logo in any publications,
marketing, or any other type of media without prior written authorization.
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EXHIBIT D- ADDITIONAL PROCEDURES/FORMS
Attachment D1: Affirmative Marketing and Fair Housing Policies and Procedures
The public, property owners, and potential tenants will be informed about the responsibilities of the Project
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 ARPA funds. The Project shall comply with the Fair Housing and Equal
Opportunity (Title VI of the Civil Rights Act of 1964, As Amended, The Fair Housing Act, Equal Opportunity
in Housing (Executive Order 11063, As Amended by Executive Order 12259), and the Age Discrimination
Act of 1975, As Amended; (https://www.hud.gov/program_offices/fair_housing_equal_opp).
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EXHIBIT D- ADDITIONAL PROCEDURES/FORMS
Attachment D2: 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. The Project shall be operated and maintained according to the unit mix and with the amenities
described herein.
1. Residential Rental Unit Mix. The Developer acknowledges that the Project shall contain 200 total
residential rental units of which, 0 are to be rented at market rates and 6 are ARPA-Assisted Units. The
ARPA-Assisted Units shall be floating Units
2. Tenant Income and Rent Restrictions. The ARPA-Assisted Units shall be rented to qualifying tenants
at the income levels and the rent limits described below:
At least 6 units; (a) three (3) two-bedroom units and (b) three (3) three-bedroom units in the Project
shall be Low Program Rent units and must be occupied by low-income households initially earning
no more than 60% of the area median gross income adjusted by family size (“60% AMI”) with gross
rents not to exceed 30% of qualifying household income, as each is published annually by the
Arizona Department of Housing (“ADOH”) for the area in which the Project is located.
a) For the purposes of determining whether an individual or family remains a low-income household at
the 60% AMI level, increases in tenant income are permitted as follows: Any ARPA-Assisted Unit
occupied by an individual or family who is at or below 60% AMI at the commencement of occupancy
shall continue to be treated as if occupied by a qualifying tenant so long as the qualifying tenant's
income does not increase above 140% of the current year applicable income limit. For each qualifying
tenant whose income subsequently exceeds 140% of the current year applicable income limit, such
qualifying tenant’s unit will continue to be treated as if occupied by a tenant with income at 60% AMI
so long as during the period of noncompliance each available ARPA-Assisted Unit of a comparable or
smaller size is rented to a tenant with income at or below 60% AMI.
b) Annual Recertification of Tenant Income: The Developer must reexamine the income of tenants living
in ARPA-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.
c) Source Documentation – The ARPA fund will defer to The LIHTC regulations for the income eligibility
of applicants to be determined by examining source documentation which provides evidence of annual
income. Household income must be verified by the developer in accordance with the LIHTC
Regulations. The project shall obtain and keep as part of its records the required documentation from
the applicant for all ARPA-assisted units on an annual basis.
d) Over-income Tenants - If, during the annual requalification process stipulated in the LIHTC Regulations
a tenant is determined to be over income, the Developer shall designate the next available comparable
unit as a floating ARPA- assisted unit and apply all the regulatory requirements of the LIHTC
Regulations including without limitation 26 C.F.R. § 1.42-15, and those of this Agreement to that unit.
Developer shall notify the County of any requirements of other funding that conflict with the
requirements of this Agreement; the parties agree to take reasonable steps to remedy such conflicts if
possible and necessary
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EXHIBIT D- ADDITIONAL PROCEDURES/FORMS
Attachment D3: Prohibited Lease Provisions
The ARPA funded units will defer to LIHTC Regulations and rules and regulations of the Arizona
Department of Housing applicable to projects participating in its federal low-income housing tax credit
program regarding mandatory and prohibited lease terms. The following provisions are applicable to leases
of ARPA-assisted units for the period of affordability agreed upon herein:
1. The form of lease to be utilized by the Contractor in renting any ARPA-assisted unit in the Project
shall provide for immediate termination of the lease and eviction in accordance with Arizona
Revised Statues for failure to qualify as a low-income tenant as a result of any material
misrepresentation made by such person 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.
2. The form of lease to be utilized by the Contractor in renting any ARPA-assisted unit in the Project
shall provide that termination of a lease or refusal to renew a tenant occupying a Low-Income Unit
must be preceded by the Contractor’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 thirty (30) days before
the termination or refusal to renew is to be effective.
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EXHIBIT D- ADDITIONAL PROCEDURES/FORMS
Attachment D4: Request for Reimbursement Procedures
1. Cover letter to County on the Developer’s letterhead, signed by the Project’s authorized
official/representative
2. Status update of the project along with photos showing the progress of the construction
3. Request for Reimbursement Form
4. Certified Request for Payment from Contractor
5. Contractor Invoices
6. Proof of payment-cancelled checks or EFT’s for all receipts submitted
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 D- ADDITIONAL PROCEDURES/FORMS
Attachment D5: Sample Request for Reimbursement Cover Letter
AGENCY LETTERHEAD
Date
Assistant Director Housing and Community Development
Maricopa County Human Services Department
234 North Central Avenue
Phoenix, AZ 85004
Re:
Project Name:
Quarterly Report Enclosed _____
Contract Number: ________________ Payment Request Number: _________
Dear _________________:
This letter certifies that ( Agency Name )(“Project Name”) has complied with the requirements of the
Department of Housing and Urban Development, Maricopa County, the ARPA Program and our agreement
for reasonable and necessary costs of construction. The Project additionally certifies the files, including
project management documentation files, and financial documentation of expenditures incurred in
accordance with the program rules and regulations for eligible costs.
Therefore,
the
Project
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 D- ADDITIONAL PROCEDURES/FORMS
Attachment D6: Request for Reimbursement Form
This document is available in Excel format.
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These documents are available in Excel format.
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EXHIBIT D- ADDITIONAL PROCEDURES/FORMS
Attachment D7: ARPA Progress Report
A version of this form will be available in an Excel format.
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EXHIBIT D- ADDITIONAL PROCEDURES/FORMS
Attachment D8: Annual Rental Compliance Report
A version of this form will be available in an Excel format.
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EXHIBIT E-SECURITY INSTRUMENTS
Attachment E1: Sample Declaration and Assignment of Affirmative Land Use; Deed of Trust;
Promissory Note
WHEN RECORDED, RETURN TO:
Maricopa County
Human Services Department
Assistant Director
Housing and Community Development Department
234 North Central Avenue, 3rd Floor
Phoenix, Arizona 85004
[SUBJECT TO LENDER AND INVESTOR REVIEW AND APPROVAL]
Declaration and Assignment of Affirmative Land Use
This Declaration and Assignment of Affirmative Land Use (the "Declaration"), dated this
_____ day of _______________, 2022, by Roers Buckeye Downtown Limited Partnership, a
Minnesota Limited Partnership (“Declarant”), its successors and assigns, for the benefit of the
Maricopa County, a body politic and corporate, by and through its Human Services Department,
an agency of the Maricopa County, together with any successor and assignees, to its rights, duties,
and obligations (collectively, "County").
R E C I T A L S
WHEREAS, the County has been authorized under Arizona Revised Statutes Section 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; and
WHEREAS, the County is the recipient of funds from the United States of America
pursuant to the American Rescue Plan Act of 2021 (ARPA); and
WHEREAS, by Resolution adopted by the Maricopa County Board of Supervisors on
_____________, 2021, the sum of $30,000,000 of the ARPA funding has been allocated to the
Maricopa County Human Services Department (“HSD”) to facilitate the creation of affordable
housing within the County; and
WHEREAS, Declarant is the record owner of property upon which Declarant propose to
develop a permanent affordable rental housing project located on lands within the County of
Maricopa, State of Arizona, the legal description of which is more particularly set forth in Exhibit
A and known as Solana Villas ("Project"); and
WHEREAS, Declarant submitted a proposal to the County seeking ARPA funds for the
Project, which proposal has met with favorable consideration and funding for which will be
provided conditioned upon Declarant recording a Declaration whereby units within the Project
shall remain affordable for a terms of not fewer than twenty (20) years; and
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WHEREAS, Declarant, intends, declares, acknowledges, and covenants for itself and its
successors and assigns that the regulatory and restrictive covenants set forth in this Declaration,
governing the use and occupancy of the Project or any portion of it, are covenants running with
the Project land for the term stated in this Declaration and are binding upon all subsequent
declarants of the Project land for such term.
NOW, THEREFORE, Declarant declares as follows:
1.
Incorporation. The above recitals are incorporated as a substantive portion of this
Declaration.
2.
Representations, Covenants. and Warranties of Declarant. Declarant represents and
warrant as follows:
(a) Declarant has good and marketable title to the real property and improvements
constituting the Project.
(b) Upon completion of construction, 200 units available for rental and residential
use in the Project.
(c) Six (6) units; (a) Three (3) two-bedroom units and (b) three (3) three-bedroom
units in the Project shall be designated as floating ARPA-assisted units low-income units
which will meet the requirements of26 U.S.C. § 42(g)(2) (“County ARPA Units”).
(d) The six (6) County ARPA Units shall be leased for no more than the Arizona
Department of Housing annually published Arizona Low Income Housing Tax Credit
Program – Allowable Rents for leases to individuals or families whose income shall not
exceed sixty percent (60%) of the Area Median Income pursuant to the guidelines set forth
in the regulations promulgated under 26 U.S.C. § 42 (the “LIHTC Regulations”) through
the period of affordability;
(e) The Project will meet the property standards as set forth in the LIHTC
Regulations through the period of affordability.
(f) All affordable units occupied by income qualified tenants shall be of comparable
quality to other units in the Project.
(g) Declarant covenants and agrees not to discriminate on the basis of race, color,
religion, sex, national origin, age, disability and genetic information 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.
(h) Declarant covenants and agrees to comply with the Violence Against Women
Reauthorization Act of 2013, as applicable to the Project.
(i) The affordability period shall commence on the date the County, or such other
jurisdiction with permitting authority over the Project, issues a certificate of occupancy for
the Project.
3.
The units identified on Exhibit 2, attached hereto and made a part hereof, shall be
subject to the terms and restrictions as described on said Exhibit 3 (“Affordability Requirements”)
for the entirety of the affordability period.
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4. Expiration of Restrictions. The restrictions created by this Declaration and as described
on Exhibit 2 attached hereto and made a part hereof, shall expire on the date that is 360 months
from the date the affordability period commenced (“Expiration Date”). The restrictions created by
this Declaration and this Declaration shall automatically expire on the Expiration Date. Upon
request of Declarant, or a subsequent owner of the Project, following the Expiration Date, the
County shall execute and deliver a notice of expiration of this Declaration in a form acceptable for
recording in Maricopa County.
5.
Effect and Amendment. This Declaration shall run with and be binding on the land
and may be amended only with the prior written approval of the County.
6.
Severability. The invalidity of any clause, part or provision of this Declaration shall
not affect the validity of the remaining portions thereof.
7.
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. Declarant consents to
venue for any action to enforce this Declaration being in the Superior Court located in Maricopa
County.
8.
Assignment of Declaration. Declarant hereby assigns and sets over to Assignee,
and Assignee hereby accepts assignment of, all of Declarant’s rights and obligations under this
Declaration.
[signature pages follow]
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IN WITNESS WHEREOF, Declarant and Assignee have caused this Declaration to be
signed by their duly authorized representative, as of the day and year first above written.
DECLARANT:
Roers Buckeye Downtown Limited Partnership, a Minnesota Limited Partnership
By:
___________________________
Name
Title
Date: _______________________________
STATE OF ______________ )
) ss
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 2022, by _______________, who personally appeared and acknowledged
themselves to be the_____________________________________________________________,
and that they as such, being authorized to do so, executed the foregoing instrument for the purposes
stated in it.
My term of office expires: ____________________
_________________________
Notary Public
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EXHIBIT 1 –Legal Description
[INFORMATION TO BE ADDED AT A LATER DATE]
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EXHIBIT 2 –Project Description
[insert information found in Exhibit B Attachment B1 of OPS contract]
Project Description:
Project Eligibility:
Property Standards -
Occupancy Requirements –
Rental Requirements -
Affordability Period –
Deliverables
Beneficiaries
Number of households (units)
Number of people (approximate)
Use of ARPA Funds - The ARPA funds provided under this Agreement shall be used for the cost detailed
in the budget found in Attachment B2.
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EXHIBIT 3- 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. The Project shall be operated and maintained according to the unit mix and with the amenities
described herein.
[insert information found in Exhibit D Attachment D2 of OPS contract]
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EXHIBIT E-SECURITY INSTRUMENTS
Attachment E2: Sample ALTA / NSPS Land Title Survey
Requested By:
When Recorded Return to:
Maricopa County
Human Services Department
Attn: Housing and Community Development Division
234 N. Central Ave., Ste. 300
Phoenix, AZ 85004
DEED OF TRUST
Effective Date:
_________________________, 2022
County and State where Real Property is located:
Maricopa County, Arizona
TRUSTOR:
DEVELOPER
BENEFICIARY:
Maricopa County
Human Services Department
Attn: Housing and Community Development Division
234 N. Central Ave., Ste. 300
Phoenix, AZ 85004
TRUSTEE:
Project Property:
PROJECT
APN:
Obligations Secured:
Promissory Note Amount $2,000,000.00
Subject Real Property: Trustor is the record owner of the Project Property by deed recorded with the Maricopa County
Recorder RECORDING INFORMATION, commonly known as PROJECT 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 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 Obligations 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. Obligations Secured. The obligations secured by this Deed of Trust are: a certain Contract executed by and between
Trustor and Beneficiary and dated _________ (the "Agreement"); a Promissory Note dated of even date herewith in
the original principal amount of $2,000,000.00 made by Trustor in favor of Beneficiary ("Promissory Note"); and
the Declaration and Assignment of Affirmative Land Use of even date herewith executed by Trustor in favor of
Beneficiary in conjunction with this Deed of Trust ("Declaration"). The 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 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, provide that upon request of the Trustor the entire amount so collected or
any part thereof shall be released to Trustor for to be applied to the repair and restoration of the Project Property.
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 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. Failure to maintain all insurance required under any of the Obligations Secured
or this Deed of Trust shall be deemed a default and entitle Beneficiary to proceed in accordance with this Deed of
Trust for such default.
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8. Indemnification of Trustee and Beneficiary. Trustor shall hold Trustee and Beneficiary, harmless from and
indemnify them for any and all claims of any nature whatsoever 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, but not the obligation, 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 atthe lesser of 5% per annum in excess of the rate
provided in the Promissory Note or the maximum legal contractual rate per annum, from the date of payment until
satisfaction, shall be added to the Obligations Secured, unless otherwise specified by Beneficiary at the time of such
payment. No excuse of obligation contained in any of the Obligations Secured shall be applicable to any payments
made by Beneficiary or Trustee pursuant to this paragraph. 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 Obligations 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.
Notwithstanding the foregoing, so long as Trustor is not then in material default hereunder or under any Obligations
Secured, Beneficiary shall make the proceeds of condemnation available to Trustor upon request for use in repairing
and restoring the Project Property; and any excess proceeds remaining shall be applied as provided in the preceding
sentences of this Section 10.
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 Obligations Secured or change the amount of
such payments.
11. Affordability. At all times Trustee shall ensure that the affordability requirements, attached hereto and made a part
hereof as Exhibit B, and of the Obligations Secured, are satisfied. Failure to satisfy the affordability requirements
under any of the Obligations Secured shall be deemed a default and entitle Beneficiary to proceed in accordance
with this Deed of Trust for such default.
12. 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 date the Project Property shall obtain
a certificate of occupancy from Maricopa County, or such jurisdiction with permitting authority over the Project
Property, 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 the regulations promulgated under 26 U.S.C. § 42. 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 reimburse Beneficiary for the reasonable cost of such
repairs and remediation on a timetable set by Beneficiary. No excuse of obligation contained in any of the
Obligations Secured shall be applicable to any payments made by Beneficiary pursuant to this paragraph.
13. Right to Inspect Project Property. In addition to any inspection rights otherwise granted to Beneficiary pursuant
to the Obligations Secured, 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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14. Event of Default. In addition to any other items of default identified herein, 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 Agreement, 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. Federal Government arising from the failure by Trustor of the Project Property to comply 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 other than in the ordinary course of Trustor’s business;
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:
i. A petition in bankruptcy by or against Trustor which is not dismissed within one hundred twenty (120) days.
ii. 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.
iii. Adjudication of Trustor as a bankrupt or insolvent, or insolvency in the bankruptcy equity sense.
iv. An assignment by Trustor for the benefit of creditors, whether by trust, mortgage or otherwise.
v. 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.
vi. 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. Upon any prospective purchaser of the Project Property executing all necessary
documents concerning the affordability requirements of the Obligations Secured, and upon Beneficiary being
satisfied said prospective purchaser is capable of managing the Project Property to ensure satisfaction of the
affordability requirements of the Obligations Secured going forward, Beneficiary’s consent will not be unreasonably
withheld, conditioned or delayed. Notwithstanding the forgoing, Beneficiary will not unreasonably withhold consent
to any refinance of indebtedness on the Property to which the Promissory Note or this 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 prevention, including any refinancing upon maturity of the existing indebtedness. 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 without the written consent of the Beneficiary
is hereby deemed to constitute a default of the Note and Deed of Trust during the 360 month duration of the Note.
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i.
Notwithstanding anything to the contrary in the Obligations Secured, the following shall not constitute a default
under the Obligations Secured or this Deed of Trust (a) the sale, transfer, conveyance or pledge limited partner
interest in Trustor or any ownership interest in an entity that directly or indirectly owns a limited partner interest in
Trustor, (b) the sale, transfer, conveyance or pledge of a general partner interest in Trustor or in any entity that
directly or indirectly owns a general partner interest in Trustor, so long as following such transaction any one of, or
any combination of, Brian J. Roers and Kent J. Roers retain voting control of the general partner of Trustor, (d) the
removal and replacement of the general partner of Trustor by a limited partner of Trustor pursuant to the terms of
the Operating Agreement or by the holder of a deed of trust encumbering the Project Property (e) any amendment
to an operating agreement or partnership agreement of the Trustor (the "Operating Agreement"), which does not
affect the payment of amounts due under the Promissory Note, and does not otherwise adversely affect the security
interest of Beneficiary in the Project Property or Declaration, (f) the refinancing of indebtedness of the Trustor
pursuant to the Commitment Letter for Freddie Mac forward tax-exempt loan financing] by and between Trustor
and [Merchants Bank of Indiana] dated [_______], as may be amended, (g) residential leases that otherwise comply
with the Obligations Secured, and (h) matters set forth on Exhibit C attached hereto (“Permitted Encumbrances”).
15. Cure Rights.
a.
Beneficiary shall give Trustor and any other person identified in paragraph 29 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 29 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 29 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 Obligations 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.
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
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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 Obligations 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 Obligations 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 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.
22. Upon reinstatement, this Deed of Trust and the Obligations Secured hereby shall remain in full force and effect as
if no acceleration had occurred.
23. 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.
24. 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 Program, Department Guidance, and Federal
Guidance (as those terms are defined in the Promissory Note); and in such order as Beneficiary may determine.
25. 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.
26. 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 Obligations 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
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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.
27. 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.
28. Satisfaction of the Obligation. If Trustee receives full payment of the Obligations 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. § 33712. However, the Declaration and Assignment of
Affirmative Land Use recorded against the Project property shall remain in full force and in effect for the entire
duration of its term.
29. 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: _________________________________________
30. 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.
31. 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.
32. 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.
33. 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 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.
34. 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.
35. 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.
36. 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.
37. Time of Essence. Time is of the essence in this Deed of Trust and every term, condition, covenant and provision
hereof.
38. Modification. No modification of this Deed of Trust shall be binding unless evidenced by an agreement in writing
and signed by all Parties.
39. 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.
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[SIGNATURES APPEAR ON FOLLOWING PAGES]
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TRUSTOR/BORROWER:
Roers Buckeye Downtown Limited Partnership, a Minnesota Limited Partnership
By: ______________________________________
[Name, Title]
STATE OF _____________
)
) ss.
County of ___________
)
The foregoing Deed of Trust was acknowledged before me this ______day of _____________, _____, by
__________________________________________________________________________________
__________________________________________
My Commission expires:
Notary Public
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Reviewed, Approved and Agreed to Pursuant to Paragraph 38.
MARICOPA COUNTY, a political subdivision of the State of Arizona
____________________________________
[Name, Title]
STATE OF ARIZONA
)
) ss.
County of Maricopa
)
The foregoing Deed of Trust was acknowledged before me this ______day of ______________, _____, by
______________________________________________________________________________.
__________________________________________
My Commission expires:
Notary Public
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BENEFICIARY
By:_____________________________________
Title:
STATE OF ARIZONA )
)ss.
County of Maricopa
)
The foregoing Deed of Trust was acknowledged before me this ______day of ______________, _____,
by____________________________________, Chairman, Board of Supervisors
__________________________________________
My Commission expires:
Notary Public
Do not destroy this Deed of Trust or the note that it secures. Both must be delivered to the Trustee for
cancellation before release and conveyance will be made.
Escrow No.
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Exhibit A
Legal Description
[INFORMATION TO BE ADDED AT A LATER DATE]
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Exhibit B
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. The Project shall
be operated and maintained according to the unit mix and with the amenities described herein.
[insert information found in Exhibit D Attachment D2 of OPS contract]
[INFORMATION WILL BE ADDED AT A LATER DATE]
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PROMISSORY NOTE
Maricopa County, Arizona
___________, 2022
For value received, Roers Buckeye Downtown Limited Partnership ("Borrower") promises to pay to the
County of Maricopa, an Arizona body politic ("County"), the sum of TWO MILLION AND 00/100
DOLLARS ($2,000,000.00) (the "Obligation"), or so much thereof as has been advanced by County to
or for the benefit of Borrower in accordance with the terms of certain agreement between Maricopa
County Administered by its Human Services Department and Roers Buckeye Downtown Limited
Partnership dated _____________, 2022 (the "Agreement").
1. The definition of any capitalized term or word used and not otherwise defined shall have the meaning
set forth in the Loan Agreement.
2. The Note shall bear zero percent (0%) interest until such time as the Sponsor Loan (as that term is
defined in the Third Amended and Restated Agreement of Limited Partnership of Borrower dated
____, as the same may be amended from time to time (the “Partnership Agreement”)) is repaid in
full. On the day after the Sponsor Loan is repaid in full, the Note shall commence to bear interest at
the rate of twenty five basis points (0.25%) interest per annum. The term of this Note shall coincide
with the Affordability Period as set forth in the Agreement. Principal payments of $_____ shall be
made annually on the first day of June commencing the year following repayment of the Sponsor
Loan (the “Annual Payment”) to the extent of available Net Cash Flow (as defined in the Partnership
Agreement) of the Borrower in the order of priority determined by the Partnership Agreement, and
subject to the terms and conditions thereof. In the event that the Net Cash Flow in any year is
insufficient to make the Annual Payment due hereunder, the unpaid obligation shall accrue and be
due at such time as Net Cash Flow is sufficient is make the Annual Payment plus any accrued
amounts. Net Cash Flow shall be calculated based on the Borrower’s audited financial statements
for the calendar year preceding the Annual Payment date. All outstanding principal and unpaid
interest shall be due and payable in full on or before January 1, 2055. This Note may be prepaid, in
whole or in part, at any time and from time to time without penalty or premium.
3. During the Affordability Period as set forth in the Agreement, Borrower shall comply with all of the
terms, restrictions and conditions in said Agreement and the Declaration and Assignment of
Affirmative Land Use recorded in accordance with said Agreement, that ensure the housing provided
in whole or in part with the funds evidenced by this Promissory Note remains subject to affordability
requirements and available to those residents who qualify for such housing. If said Project Property
fails to remain affordable as defined aforesaid, and Borrower fails to cure such failure within the
time period specified in the Agreement or Declaration, then at the option of the County the full
obligation evidenced herein shall be come immediately due and payable in full.
4. This Note shall bind and inure to the benefit of the respective permitted successors and assigns of
the Borrower and the County.
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5. Payments shall be made in lawful money of the United States of America at the administrative offices
of Maricopa County Human Services Department 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.
a. The Agreement
b. The Declaration and Assignment of Affirmative Land Use
c. Deed of Trust
Items b. and c. above will be duly recorded in the Office of the Recorder of Maricopa County, Arizona.
8. Borrower's obligations under this Note are nonrecourse to Borrower and its partners 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.
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, and
such other matters as reflected on Exhibit A attached hereto.
[SIGNATURE APPEARS ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, Borrower has signed this Note on this ____ day of _________, 2022.
Roers Buckeye Downtown Limited Partnership, a Minnesota Limited Partnership
By:
Its:
___________________________
[Name, Title]
STATE OF _________
)
) ss.
County of _______
)
The foregoing Promissory Note was acknowledged before me this _____ day of
,
2022, by _____________________________________________________________________.
__________________________________________
My Commission expires:
Notary Public
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Exhibit A
List of Permitted Encumbrances (Order of Priority)
1. [Lender]
2. [Lender]
3. [Lender]
[INFORMATION TO BE ADDED AT A LATER DATE]