220166-CONTRACT-ACACIA HEIGHTS II LLC-SIGNED.PDF
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AFFORDABLE HOUSING DEVELOPMENT OPPORTUNITIES
220166-RFP
This Contract is entered into this 18th day of May 2022 by and between Maricopa County (“County”), a
political subdivision of the State of Arizona, and Acacia Heights II, LLC, an Arizona Limited Liability
Company (“Contractor” or “Developer”).
1.0
CONTRACT TERM
This Contract is for a term of two years and one month, beginning on the 18th day of May 2022 and
ending the 30th day of June 2024; 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, at its option and with the concurrence of the Contractor, renew the term of this
Contract up to a maximum of two years and six months. The Contractor shall be notified in writing
by the Office of Procurement Services 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: 30 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. The provisions of this clause
shall survive the expiration or termination of this agreement.
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
obligations under, or in connection with, this contract. In the event of termination, County
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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 Department of Housing, and the procurement officer (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, or alleged to have resulted
from, 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 sole negligence of County.
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.
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 Contractor, 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 Prior to Contract award, 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 two 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
Office of Procurement Services and shall be mailed, or hand delivered to
160 S. 4th Avenue, Phoenix, AZ 85003, or emailed to the procurement officer noted
in the solicitation.
7.3
TERMINATION FOR CONVENIENCE
Maricopa County may terminate the resultant Contract for convenience by providing 60
calendar days advance notice to the Contractor.
7.4
TERMINATION FOR DEFAULT
7.4.1
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.
7.4.2
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 procurement officer specifying the failure and time frame allowed in
which to remedy.
7.5
PERFORMANCE
It shall be the Contractor’s responsibility to meet the proposed performance requirements.
7.6
STATUTORY RIGHT OF CANCELLATION FOR CONFLICT OF INTEREST
Notice is given that, pursuant to A.R.S. § 38-511, the County may cancel any Contract
without penalty or further obligation within three years after execution of the contract, if any
person significantly involved in initiating, negotiating, securing, drafting, or creating the
Contract on behalf of the County is at any time, while the Contract or any extension of the
Contract is in effect, an employee or agent of any other party to the Contract in any capacity
or consultant to any other party of the Contract with respect to the subject matter of the
contract. Additionally, pursuant to A.R.S. § 38-511, the County may recoup any fee or
commission paid or due to any person significantly involved in initiating, negotiating,
securing, drafting, or creating the Contract on behalf of the County from any other party to
the Contract arising as the result of the contract.
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7.7
ASSIGNMENT
The Contractor may not assign to another party for performance of the terms and
conditions hereof without 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
RIGHTS IN DATA
7.9.1
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.
7.9.2
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.
7.10
ACCESS TO AND RETENTION OF RECORDS FOR THE PURPOSE OF AUDIT AND/OR
OTHER REVIEW
7.10.1 In accordance with Section MC1-373 of the Maricopa County Procurement Code,
the Contractor agrees to 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 department shall have full access to and the right to examine, copy, and make
use of, any and all said materials.
7.10.2 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 Maricopa County for the services not so adequately supported and
documented.
7.11
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.
7.12
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.
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7.13
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.
7.14
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.
7.15
NON-DISCRIMINATION
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.)
7.16
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.
7.17
DUNS NUMBER 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 Data Universal
Numbering System (DUNS) number 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.
7.18
CERTIFICATION REGARDING DEBARMENT AND SUSPENSION
7.18.1 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:
7.18.1.1 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;
7.18.1.2 have not within a three-year period preceding this contract:
7.18.1.2.1 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
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7.18.1.2.2 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;
7.18.1.2.3 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 performing a
government entity public (Federal, State or local)
transaction or contract;
7.18.1.3 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
7.18.1.4 have not within a three-year period preceding this Contract had any
public transaction (Federal, State or local) terminated for cause or
default.
7.18.2 If any of the above circumstances described in the paragraph are applicable to the
entity submitting a bid for this requirement, include with your bid an explanation of
the matter including any final resolution.
7.18.3 The Contractor shall include, without modification, this clause in all lower tier
covered transactions (i.e. transactions with subcontractors or sub-subcontractors)
and in all solicitations for lower tier covered transactions related to this contract. If
this clause is applicable to a subcontractor or sub-subcontractor, the Contractor
shall include the information required by this clause with their bid.
7.19
VERIFICATION REGARDING COMPLIANCE WITH A.R.S. § 41-4401 AND FEDERAL
IMMIGRATION LAWS AND REGULATIONS
7.19.1 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
procurement officer 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.
7.19.2 The County retains the legal right to inspect documents of Contractor and
subcontractor employees performing work under this Contract to verify compliance
with paragraph 7.19.1 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.
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7.20
CONTRACTOR Employee Whistleblower Rights and Requirement To INFORM
EMPLOYEES of Whistleblower Rights
7.20.1 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.
7.20.2 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.
Documentation of such employee notification must be kept on file by Contractor
and copies provided to County upon request.
7.20.3 Contractor shall insert the substance of this clause, including this paragraph, in all
subcontracts over the simplified acquisition threshold ($250,000 as of fiscal year
2018).
7.21
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 both
Office of Procurement Services and the department of any and all changes concerning
permits, insurance, or licenses.
7.22
INFLUENCE
7.22.1 As prescribed in MC1-1203 of the Maricopa County Procurement Code, any effort
to influence an employee or agent to breach the Maricopa County Ethical Code of
Conduct or any ethical conduct, may be grounds for disbarment or suspension
under MC1-902.
7.22.2 An attempt to influence includes, but is not limited to:
7.22.2.1 A person offering or providing a gratuity, gift, tip, present, donation,
money, entertainment or educational passes or tickets, or any type of
valuable contribution or subsidy that is offered or given with the intent to
influence a decision, obtain a contract, garner favorable treatment, or
gain favorable consideration of any kind.
7.22.3 If a person attempts to influence any employee or agent of Maricopa County, the
chief procurement officer, or his designee, reserves the right to seek any remedy
provided by the Maricopa County Procurement Code, any remedy in equity or in
the law, or any remedy provided by this contract.
7.23
CONFIDENTIAL INFORMATION
7.23.1 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.
7.23.2 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
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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.
7.23.3 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.
7.24
PUBLIC RECORDS
Under Arizona law, all offers submitted and opened are public records and must be
retained by the County at the Maricopa County Office of Procurement Services. Offers shall
be open to public inspection and copying after Contract award and execution, except for
such offers or sections thereof determined to contain proprietary or confidential information
by the Office of Procurement Services. If an offeror believes that information in its offer or
any resulting Contract should not be released in response to a public record request, under
Arizona law, the offeror shall indicate the specific information deemed confidential or
proprietary and submit a statement with its offer detailing the reasons that the information
should not be disclosed. Such reasons shall include the specific harm or prejudice which
may arise from disclosure. The records manager of the Office of Procurement Services
shall determine whether the identified information is confidential pursuant to the Maricopa
County Procurement Code.
7.25
INTEGRATION
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.
7.26
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.
7.27
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.
7.28
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.
7.29
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.
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7.30
INCORPORATION OF DOCUMENTS
7.30.1 The following are to be attached to and made part of this Contract:
7.30.1.1 EXHIBIT A – CONTRACTOR INFORMATION
7.30.1.2 EXHIBIT B – STATEMENT OF WORK
7.30.1.2.1 Attachment B1: Project Description
7.30.1.2.2 Attachment B2: Budget
7.30.1.2.3 Attachment B3: Project Schedule
7.30.1.2.4 Attachment B4: Budget Amendment Request Form
7.30.1.2.5 Attachment B5: HOME Income and Rent Limits
7.30.1.2.6 Attachment B6: Utility Allowances
7.30.1.3 EXHIBIT C – SPECIAL TERMS AND CONDITIONS
7.30.1.4 EXHIBIT D – ADDITIONAL PROCEDURES/FORMS
7.30.1.4.1 Attachment D1: Affirmative Marketing and Fair Housing
Policies and Procedures
7.30.1.4.2 Attachment D2: Occupancy Restrictions and Project Unit
Characteristics
7.30.1.4.3 Attachment D3: Prohibited Lease Provisions
7.30.1.4.4 Attachment D4: Request for Reimbursement Procedures
7.30.1.4.5 Attachment D5: Sample Request for Reimbursement Cover
Letter
7.30.1.4.6 Attachment D6: Request for Reimbursement Form
7.30.1.4.7 Attachment D7: ARPA Progress Report
7.30.1.4.8 Attachment D8: Annual Rental Compliance Report
7.30.1.5 EXHIBIT E – SECURITY INSTRUMENTS
7.30.1.5.1 Attachment E1: Sample Declaration and Assignment of
Affirmative Land Use; Deed of Trust; Promissory Note
7.30.1.5.2 Attachment E2: Sample ALTA / NSPS Land Title Survey
7.31
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: Rachel Milne, Assistant Director
Phone Number: 602-506-1528
AND
Maricopa County
Office of Procurement Services
160 S. 4th Avenue
Phoenix, Arizona 85003-1647
SERIAL 220166-RFP
For Contractor:
Acacia Heights II, LLC
4747 N. 7th Ave.
Phoenix, AZ 85013
Attention: Stephen Capobres
Phone: 602-650-4807
Email: SCapobres@cc-az.org
7.32
INQUIRIES
7.32.1 Inquiries concerning information herein must be submitted prior to the question
deadline date/time posted in the e-procurement platform, Periscope S2G, using
the link in the “Q&A” tab.
7.32.2 Administrative telephone/email inquiries shall be addressed to:
ELIZABETH KUTTNER, PROCUREMENT OFFICER
TELEPHONE: (602) 506-0099
elizabeth.kuttner@maricopa.gov
7.32.3 Inquiries may be submitted by telephone but must be followed up in writing. No
oral communication is binding on Maricopa County.
[signature page follows]
SERIAL 220166-RFP
EXHIBIT A - CONTRACTOR (DEVELOPER) INFORMATION
UNIQUE ENTITY ID
DUNS #:
117402613
FEDERAL TAX ID #:
84-4442842
COMPANY NAME:
Acacia Heights II, LLC
DOING BUSINESS AS (dba):
MAILING ADDRESS:
4747 N. 7th Avenue Phoenix AZ 85013
REMIT TO ADDRESS:
TELPHONE NUMBER:
6026504870
FAX NUMBER:
WWW ADDRESS:
housingforhopeaz.org
REPRESENTATIVE NAME:
Stephen Capobres
REPRESENTATIVE TELEPHONE NUMBER:
4806993356
REPRESENTATIVE EMAIL ADDRESS
scapobres@cc-az.org
YES
NO
REBATE
WILL
ALLOW
OTHER
GOVERNMENTAL
ENTITIES
TO
PURCHASE FROM THIS CONTRACT:
WILL ACCEPT PROCUREMENT CARD FOR PAYMENT:
FUEL COMPRISES (if applicable) % OF TOTAL BID AMOU
PAYMENT TERMS: RESPONDENT IS REQUIRED TO PICK ONE OF THE FOLLOWING. PAYMENT TERMS WILL
BE CONSIDERED IN DETERMINING LOW BID. FAILURE TO CHOOSE PAYMENT TERMS WILL RESULT IN A
DEFAULT TO NET 30 DAYS.
NET 30 DAYS
SERIAL 220166-RFP
EXHIBIT B – STATEMENT OF WORK
Attachment B1: Project Description
Project Description:
The Project as described herein, Acacia Heights II, shall utilize ARPA funds to construct a 66-unit affordable
rental housing community. This Project is located Southeast of North 7th Avenue and Camelback Road with
an expected address of 4737 N 7th Avenue, Phoenix, AZ 85013 (the “Property”). This 1.22-acre parcel (APN
55-35-167) is being subdivided, with the Acacia Heights II development consisting of approximately .74
acre of the total parcel. Acacia Heights II includes 66 total units, including twenty-one (21) one-bedroom
one-bathroom apartments of 583 square feet; twenty-one (21) two-bedroom one-bathroom apartments
ranging from 822 to 824 square feet; twenty-one (21) three-bedroom 1.75-bathroom apartments ranging
from 1,076 to 1,079 square feet; and three (3) four-bedroom 2-bathroom apartments ranging from 917 to
1,375 square feet. The Project shall consist of one (1) building with residential floors that are a combination
of three and four-story heights over podium parking. The stick framed construction shall consist of stucco,
painted CMU and metal accents, and on-site amenities.
ARPA funds as well as 9% Low Income Housing Tax Credits (“LIHTC”) and Home Investment Partnership
Funds from City of Phoenix will be used to complete the Project. The funds shall be used to construct five
(5) ARPA-assisted “floating” units at the property (“ARPA-assisted units”). During the thirty (30) year Period
of Affordability (as defined in the Agreement), the five (5) ARPA-assisted floating units shall consist of: (a)
two (2) one-bedroom units; (b) two (2) two-bedroom units and (c) one (1) three-bedroom unit. The term
“floating” in this Agreement shall be defined as set forth in 24 C.F.R. § 92.252(j). The income restrictions
on the ARPA-assisted units must be maintained during the entire Period of Affordability.
ARPA funds in the amount of $1.5 Million are being sought to offset eligible the hard construction costs. 57
units of the 66 unit project shall be permanent affordable housing units targeted to serve households
earning between 60% and 40% of the area median income (“AMI”). The remaining 9 units shall serve
workforce households between 80% and 120% AMI with market rate rents. The ARPA-assisted units shall
be restricted to units serving household at or below 60% AMI.
The interior and exterior building design are intentional with a focus towards families and include spacious
residential units and on-site community amenities. On-site resident amenities are designed for community
gatherings and events and feature a clubhouse with patio area, community room, teen room, fitness room,
community garden, and sport court. Additional amenities include laundry facilities, secure bicycle storage,
a play area for small children, leasing office, covered parking, and an outdoor designated smoking area.
Although funding for supportive services is not included in this agreement, Housing for Hope’s parent
organization, Catholic Charities Community Services, Inc. (“CCCS”) is committed to providing service
coordination for the families living in the Acacia Heights II project. For over 85 years, CCCS has provided
an array of services to low-income individuals and families in Central and Northern Arizona communities.
This includes employing Resident Services Coordinators (“RSC”) at six apartment communities that
Housing for Hope has developed in Maricopa County. These RSC’s serve in a case management capacity
developing service plans with residents, arranging on-site services, and connecting residents to additional
service providers as needed. The RSC ensures the resident is afforded every opportunity for success
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 HOME
regulations including HUD Housing Quality Standards and Maricopa County Housing Rehabilitation
Standards. These standards are available on the Maricopa County website under Housing & Community
Development or upon request.
Occupancy Requirements – The 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% AMI (very low income) throughout the Period of Affordability;
SERIAL 220166-RFP
see Exhibit B, Attachment B5: HOME Income and Rent Limits. The Project shall define “Annual Income”
as it is defined at 24 C.F.R. Part 92 and shall document sources of income and examine eligibility on an
annual basis in order to meet requirements of HOME regulations at 24 C.F.R. Part 92.203. Additional
guidance and resources are outlined in Exhibit D, Attachment D2: Occupancy Restrictions and Project
Unit Characteristics.
Rental Requirements - The ARPA-assisted units shall be designated as Low HOME units, which are
outlined in Exhibit B, Attachment B5: HOME Income and Rent Limits. Utility Allowances are outlined in
Exhibit B, Attachment B6: Utility Allowances. The Low HOME rent limit is the maximum rent allowed for
a ARPA-assisted unit; the maximum rent amount includes the utility allowance. Any increase in the lesser
of these rent limits must be approved by HUD and the State of Arizona Department of Housing. The
Developer shall provide to us 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 24 C.F.R. § 92.254 or § 92.252, as applicable.
Deliverables
Beneficiaries
Number of households (units)
5
Number of people (approximate)
14
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.
SERIAL 220166-RFP
EXHIBIT B – STATEMENT OF WORK
Attachment B2: Budget
FUND SOURCES
Sources
Total
Bank Debt
Debt Financing
$ 3,600,000
Federal Low Income Housing Tax Credit Equity
Debt Financing
$ 15,854,914
Deferred Developer Fee
Debt Financing
$ 799,685
City of Phoenix HOME funds
Soft Loans
$ 1,000,000
MCHSD ARPA Funds
Soft Loans
$ 1,500,000
$ 22,754,699
BUDGET SUMMARY
Name of Activity: Acacia Heights II
ARPA Fund
Additional
Sources
TOTAL COST
Acquisition Costs
Land
$ -
$ 1,180,000 $ 1,180,000
Building Acquisition
$ -
$ - $ -
Other: taxes, title, recording
$ -
$ 15,000 $ 15,000
General Development Costs
Construction Hard Costs- Residential
$ 1,500,000
$
12,746,748
$ 14,246,748
Construction Costs- Nonresidential
$ -
$ - $ -
Contractor OH, Profit, and Gen. Conditions
$ -
$ 1,550,454 $ 1,550,454
Hard Costs Contingency
$ -
$ 789,860 $ 789,860
Environmental- inspection and remediation
$ -
$ 22,320 $ 22,320
Demolition
$ -
$ - $ -
Site Planning
$ -
$ - $ -
Architect Fees
$ -
$ 276,500 $ 276,500
Engineering Fees
$ -
$ 178,380 $ 178,380
Survey, Permit, Tests
$ -
$ 262,000 $ 262,000
Legal Fees
$ -
$ 50,000 $ 50,000
Other Professional Fees
$ -
$ 60,000 $ 60,000
Accounting and Cost Certification
$ -
$ 55,000 $ 55,000
Title and Recording
$ -
$ 30,000 $ 30,000
Market Study/Appraisal
$ -
$ 12,500 $ 12,500
Real Estate Taxes
$ -
$ 28,560 $ 28,560
Insurance
$ -
$ 200,000 $ 200,000
Construction Period Interest
$ -
$ 480,000 $ 480,000
Construction Financing Fees
$ -
$ 160,000 $ 160,000
Marketing Expense
$ -
$ 20,000 $ 20,000
Reserves
$ -
$ 370,212 $ 370,212
Soft Cost Contingency
$ -
$ 25,401 $ 25,401
Other: ADOH fees, Syndication, Perm Loan
$ -
$ 370,700 $ 370,700
Developer’s Fee
Developer’s Fee
$ -
$ 2,371,064 $ 2,371,064
SERIAL 220166-RFP
Homeownership Counseling
Counseling fee
$ -
$ - $ -
Program Administration Costs*
Program Management Services
$ -
$ - $ -
Staff
$ -
$ - $ -
Supportive Services
$ -
$ - $ -
$ -
$ - $ -
$ -
$ - $ -
$ -
$ - $ -
TOTALS
$ 1,500,000
$
21,254,699
$ 22,754,699
SERIAL 220166-RFP
EXHIBIT B – STATEMENT OF WORK
Attachment B3: Project Schedule
Project Milestone
Estimated
Completion Date
Comments
Site Acquisition
7/31/2022
Construction Loan (Closing Date)
7/31/2022
Partnership Closing (Closing Date)
7/31/2022
Permanent Loan Commitment
10/06/2021
Permanent Loan Closing
7/1/2023
Other Funds Firm Commitment
4/07/2021
Source: City of Phoenix HOME
Other Funds Firm Commitment
Source:
Environmental Review Completion
12/31/2021
Authority to Use Grant Funds
4/22/2022
Zoning Entitlements
3/20/2022
Plans Submitted to the Municipality
1/22/2022
Civil Permits Issued
8/3/2022
Building Permits Issued
8/3/2022
Contractors Notice to Proceed Issued
8/9/2022
Construction Mobilization
8/9/2022
25% Completion
11/15/2022
50% Completion
3/1/2023
75% Completion
7/1/2023
Certificate of Occupancy
10/15/2023
ARPA-Assisted Units Occupied
11/15/2023
100% Occupancy
1/31/2024
SERIAL 220166-RFP
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
Any increase to total original grant amount requires Board of Supervisor’s Approval. No attachments are
required, but budget information must be included below.
SERIAL 220166-RFP
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
SERIAL 220166-RFP
EXHIBIT B – STATEMENT OF WORK
Attachment B5: HOME Income and Rent Limits
Updated HOME income rent limits from the Maricopa County Housing & Community Development division
are available on an annual basis. These limits are adjusted annually by the U.S. Department of Housing &
Urban Development (HUD). The Developer can request the updated limits from the County or by going to
https://www.maricopa.gov/3893/Notices-Documents or going to HUD’s website for the updated versions
each year.
SERIAL 220166-RFP
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.
SERIAL 220166-RFP
EXHIBIT C – SPECIAL TERMS AND CONDITIONS
Funding Completion Date: June 30, 2024
Developer: Acacia Heights II, LLC
CFDA Number: CFDA 21.027 American Rescue Plan Act Coronavirus State and Local Fiscal Recovery
Funds
These Special Terms and Conditions are attached to and made part of the Contract - AFFORDABLE
HOUSING DEVELOPMENT OPPORTUNITIES 220166-RFP.
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.
On December 9, 2021, County did solicit proposals from developers seeking to obtain
ARPA funds for projects that are to include affordable housing within the County.
3.
Developer, in response to said solicitation, did submit a proposal for a project known as
Acacia Heights II.
4.
County has reviewed Developer’s proposal and has determined that said proposal is
eligible for funding pursuant to the criteria established by the County.
5.
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 terms or conditions
shall result in the breach of the Contract.
6.
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 thirty (30) 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 thirty (30) 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 Acacia Heights II, all as submitted to the County by Developer in response
to the solicitation by the County on January 11, 2022.
g. “Promissory Note” means a document evidencing Developer’s promise to repay the funds
advanced under certain conditions set forth in the document.
SERIAL 220166-RFP
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.
7.
Developer shall complete all Work as described on Exhibit B to the Contract.
8.
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 $ 1,500,000, which funding shall be used
exclusively for the Work. In no event will any funding be provided as reimbursement for monies paid for
Work 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.
9.
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).
10.
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.
11.
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.
12.
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.
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.
13.
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
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.
SERIAL 220166-RFP
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.
14.
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 9, 10, 11, 12, 13 and 15 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.
15.
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 June 30, 2024, unless extended pursuant to
paragraph 14 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.
16.
The County will not be liable for any contracts entered into by Developer in anticipation of
receiving payments under the Contract.
17.
Not later than July 30 of each year and continuing until the expiration of the Affordability
Period, 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
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).
18.
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.
19.
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.
20.
Developer must receive prior written approval from the County for all Project amendments
involving changes in the scope of the work, completion dates of project phases, location of approved
SERIAL 220166-RFP
activities, or budget.
21.
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.
22.
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 ARPA funds defer to the HOME Regulations regarding
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) and Affirmative Marketing (24 CFR Part
92.253(d); 2 CFR Part 92.351(a); HUD Executive Orders 11625, 12432, 12138).
SERIAL 220166-RFP
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 66 total
residential rental units of which, 9 are to be rented at market rates and 5 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:
a) At least 5 units; (a) two (2) one-bedroom units; (b) two (2) two-bedroom units and (c) one (1) three-
bedroom unit in the Project shall be Low Program Rent units and must be occupied by low-income
households initially earning no more than 60% of the area median income adjusted by family size with
rents not to exceed the lesser of: (1) the Fair Market Rent or (2) the Low Program Rent.
b) For the purposes of distinguishing High Program Rent Units from Low Program Rent Units, increases
in tenant income are permitted as follows: In the event that the income of a tenant occupying a Low
Program Rent unit or a Very Low Program Rent unit increases but does not exceed 80% of the area
median income, that unit shall become a High Program Rent unit. To replace the Low Program Rent
unit or a Very Low Program Rent unit, the Declarants must rent the next available unit to a Low Program
Rent tenant or a Very Low Program Rent tenant as the case may be. The rent of the initial tenant whose
income has increased may be increased to the High Program Rent for the unit. This process shall not
increase the number of ARPA-Assisted Units. If the tenant’s income increases above 80% of the area
median income, the unit shall still be considered to be a High Program Rent unit but the tenant’s rent
must be adjusted as described under paragraph 2(e), below. The next available unit of comparable size
or larger must be rented to tenants eligible for a ARPA-Assisted Unit and the rent can be adjusted as
appropriate.
c) 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.
d) Source Documentation – The ARPA fund will defer to The HOME regulations in 24 C.F.R. 92.203 for
the income eligibility of applicants to be determined by examining source documentation which provides
evidence of annual income. Verification of household income must be verified by the developer in
accordance with 24 CFR 92.203. 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.
e) Over-income Tenants - If, during the annual requalification process stipulated in 24 C.F.R. 92. 203 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 HOME regulatory requirements 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
3. Supportive Services. The Developer acknowledges that supportive services shall be made available to
tenants on the Project.
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EXHIBIT D- ADDITIONAL PROCEDURES/FORMS
Attachment D3: Prohibited Lease Provisions
The ARPA funded units will defer to HOME Regulations regarding prohibited lease terms. Pursuant to 24
CFR 92.253(b), the following terms are prohibited from inclusion in leases of ARPA- assisted. units: for the
period of affordability agreed upon herein.
1. Agreement to be Sued. Tenant shall not be required to agree to be sued, admit guilt, or consent to
judgement in favor of the landlord in legal proceedings brought forth in connection with the lease
agreement.
2. Treatment of Property. Landlord shall not take, hold, or sell tenant' s personal property without notice
and a court decision on the rights of the respective parties.
3. Excusing Owner from responsibility. Tenant shall not be required to hold landlord or landlord' s
agents harmless in any action or failure to act, whether unintentional or negligent.
4. Waiver of Notice. Tenant shall not be required to waive notification of a lawsuit instituted by landlord.
5. Waiver of Legal Proceedings. Tenant shall not be required to waive a court proceeding in an eviction
process.
6. Waiver of Jury Trial. Tenant shall not be required to waive any right to a trial jury.
7. Waiver of Right to Appeal Court. Decisions. Tenant shall not be required to waive their rights to
appeal a court decision associated with the lease.
8. Tenant's Payment of Legal Fees. Tenant shall not be required to pay any legal costs of landlord
associated with a court proceeding.
9. Mandatory Supportive Services. Tenant shall not be required to accept supportive services in
connection with their occupancy of the ARPA- assisted unit.
Developer acknowledges and agrees that inclusion of any of these provisions in a ARPA- assisted lease
agreement, regardless of intent, is unenforceable.
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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, with supporting documentation 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
DEVELOPER LETTERHEAD
Date
Rachel Milne, Assistant Director
Maricopa County Human Services Department
234 North Central Avenue
Phoenix, AZ 85004
Re:
Project Name:
Quarterly Report Enclosed _____
Contract Number: ________________ Payment Request Number: _________
Dear _________________:
This letter certifies that (Developer)(“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 ACACIA HEIGHTS II, LLC, an Arizona limited liability company
(“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
_________________________ 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
______________________________("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 thirty (30) years; and
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.
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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) There are 66 units available for rental and residential use in the Project.
(c) At least 5 units; (a) two (2) one-bedroom unit; (b) two (2) two-bedroom unit and (c) one
(1) three-bedroom units in the Project shall be designated as floating ARPA-assisted units low-
income units which will meet the requirements of 24 C.F.R. § 92.252 (“County ARPA Units”).
(d) The five (5) County ARPA Units shall be leased for no more than the U.S. Department
of Housing and Urban Development annually published LOW HOME RENT LIMIT to individuals or
families whose income shall not exceed sixty percent (60%) of the Area Median Income pursuant
to the guidelines set forth in 24 C.F.R. § 92.203 through the period of affordability;
(e) The Project will meet the property standards as set forth in 24 C.F.R. § 92.251 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.
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.
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[signature pages follow]
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:
[Developer]
a [Arizona limited liability company]
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
[ADDITIONAL 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]
[ADDITIONAL INFORMATION TO BE ADDED AT A LATER DATE]
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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
[SUBJECT TO LENDER AND INVESTOR REVIEW/APPROVAL]
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 $1,500,000.00
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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.
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 Agreement
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 $1,500,000made
by Trustor in favor of Beneficiary ("“Promissory Note"”); and the Declaration of Covenants,
Conditions, and Restrictions of even date herewith executed by Trustor in favor of Beneficiary in
conjunction with this Deed of Trust ("“Declaration"”). The 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, or at the option of the Beneficiary the entire amount so collected
or any part thereof may be released to Trustor. Such application or release shall not cure or waive
any default hereunder or cause discontinuance of any action that may have been or may thereafter
be taken by Beneficiary or Trustee because of such default.
6. Liability Insurance. Trustor shall, at Trustor’s expense, maintain in force policies of liability
insurance, with Beneficiary as an additional insured thereunder, insuring Trustor against any claims
resulting from the injury to or the death of any person or the damage to or the destruction of any
property belonging to any person by reason of Beneficiary’s interest hereunder or the use and
occupancy of Project Property by Trustor. Such insurance shall be in the following amounts:
a. $2,000,000 against any claim resulting from injury to or the death of any one person.
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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.
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 at 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.
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.
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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 24 CFR 92.251 (f), Minimum Property
Standards. If the Trustor fails to so care for the Project Property, then Beneficiary, at its option, may
make or contract for the necessary repairs or remediation necessary to restore the Project Property
and, the Trustor shall 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.
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;
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.
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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. 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.
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 of any membership interest in an investor member, if any, and (b) any
amendment to an operating agreement of the Trustor (the "“Operating Agreement"”), which does
not affect the financial terms of the Operating Agreement, and does not otherwise adversely affect
the security interest of Beneficiary in the Project Property or Declaration.
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,
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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 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:
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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 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.
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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. § 33-712. 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.
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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.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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TRUSTOR/BORROWER:
[Developer]
a [Arizona limited liability company]
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
[ADDITIONAL 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]
[ADDITIONAL INFORMATION TO BE ADDED AT A LATER DATE]
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PROMISSORY NOTE
[SUBJECT TO LENDER AND INVESTOR REVIEW/APPROVAL]
Maricopa County, Arizona
___________, 2022
For value received, Centerline on Glendale, LLC (“Borrower”) promises to pay to the County of Maricopa,
an Arizona body politic (“County”), the sum of ONE MILLION FIVE HUNDRED THOUGHSAND AND 00/100
DOLLARS ($1,500,000) (the "Obligation") payable in accordance with the terms of certain agreement
between Maricopa County Administered by its Human Services Department and [Developer] dated
_____________, 2022 (the "Agreement"), attached hereto and incorporated herein.
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. 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 completion of the project (the “Annual Payment”) from the
Borrower’s Net Cash Flow, as hereinafter defined, in the order determined by Borrower’s Amended and
Restated Operating Agreement dated as of _______, 2022 (the “Operating Agreement”). “Net Cash
Flow” shall mean the sum of gross rent revenues (less rental taxes and tenant security deposits) plus
other income received by the Borrower from the operation of the Project, less (a) annual accrued debt
service for the first and second priority loans, (b) payment of any unpaid Deferred Development Fee
amount, (c) actual operating expenses (including amounts deposited in replacement reserve account)
and excluding allowable depreciation, and (d) payments of the Asset Management Fee pursuant to the
Operating Agreement. 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 shall be
due and payable in full on or before _____, 20__.
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, 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.
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 and will be duly recorded in the Office of the Recorder of
Maricopa County, Arizona:
a. The Agreement
b. The Declaration and Assignment of Affirmative Land Use
c. Deed of Trust
8. Borrower's obligations under this Note are nonrecourse to Borrower and its members and may be
enforced solely out of the proceeds of the sale of the property in accordance with the Deed of Trust.
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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, as
reflected on Exhibit A attached hereto.
a. [SIGNATURE APPEARS ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, Borrower has signed this Note on this ____ day of _________, 2022.
[Developer],
a [Arizona limited liability company]
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]
[ADDITIONAL INFORMATION TO BE ADDED AT A LATER DATE]