HOUSING FOR HOPE SERIAL 220166 AMENDMENT 2.PDF
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Amendment No. 2
C-73-22-081-X-30
SERIAL 220166-RFP
AMENDMENT NO. 2
To
SERIAL 220166-RFP, AFFORDABLE HOUSING DEVELOPMENT OPPORTUNITIES
BETWEEN
HOUSING FOR HOPE, INC
&
MARICOPA COUNTY
WHEREAS, Maricopa County, Arizona (“County”) and Acacia Heights II, LLC (“Contractor”) have entered into a
Contract for the purchase of AFFORDABLE HOUSING DEVELOPMENT OPPORTUNITIES dated April
6th, 2022 (“Agreement”) County Contract No: 220166-RFP.
WHEREAS, County and Acacia Heights II, LLC have agreed to further modify the Agreement by changing certain
terms and conditions including updating the project ownership entity to Housing for Hope, Inc, the non-
profit member of the project ownership entity, in Amendment No.1 dated August 3, 2022.
WHEREAS, County and Housing for Hope, Inc have agreed to further modify the Agreement by changing certain
terms and conditions through this Amendment No. 2.
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, receipt of
which is hereby acknowledged, the parties hereto agree as follows:
1.
The purpose of the Amendment is to amend portions of the Agreement and adjust the structure of
the Agreement accordingly. This Amendment No. 2 is subject to and incorporates the provisions
of A.R.S. § 38-511.
2.
Amend the following sections as indicated:
2.1
Amend Section 1.0- Contract Term such that the term of the contract is extended from 2
years and 3 months to 3 years and 1 month. The expiration date will be extended from
June 30, 2024, to June 30, 2025.
2.2
Amend Section 2.0 Option to Renew such that the renewal term available will be revised
from “two years and six months” to indicate renewal terms of “up to a maximum-date not
to extend beyond December 31, 2026.”
2.3
Amend Section 7.17: DUNS Number And System For Award Management Registration
as follows:
2.3.1
Strike “DUNS Number” in Title and replace with “Unique Entity Identifier”.
2.3.2
Strike “Data Universal Numbering System (DUNS) number through
http://fedgov.dnb.com/webform” and replace with “Unique Entity Identifier
(UEI) through www.sam.gov”.
2.3.3
Add language to indicate Contractor, all subcontractors, and all subrecipients are
required to have a valid Unique Entity Identifier (UEI) and the UEI must be
included in all Project files.
2.4
Amend to add the following new sections:
2.4.1
Section 7.34 - Forced Labor of Ethnic Uyghurs
2.4.2
Section 7.35 - Provisions Required by Law
2.4.3
Section 7.36 - Religious Activities
2.4.4
Section 7.37 - Political Activities Prohibited
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2.4.5
Section 7.38 - Equal Employment Opportunity
2.4.6
Section 7.39 - Certification Regarding Lobbying
2.4.7
Section 7.40 - Clean Air Act & Clean Water Act
2.4.8
Section 7.41 - Energy Policy and Conservation Act
2.5
Amend Exhibit C – Special Terms and Conditions as follows:
2.5.1
Extend the Funding Completion Date above Section 1 from June 30, 2024, to
June 30, 2025.
2.5.2
Amend to indicate the identification number be changed from “CFDA Number”
to “ALN Number”; and change “CFDA 21.027” to “ALN 21.027” .
2.5.3
Add UEI Number: MCVWH1NGFND3.
2.5.4
Amend Section 15. to strike “June 30, 2024,” and add “June 30, 2025” ” as the
final clam for reimbursement date, post issuance of the final certificate of
occupancy
[Please see revisions following signature page]
Amendment No. 2
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IN WITNESS WHEREOF, the Contract Amendment is executed on the date set forth below and executed by
Maricopa County.
HOUSING FOR HOPE, INC., an Arizona Non-Profit Corporation
__________________________________________________________________
AUTHORIZED SIGNATURE OF PRINCIPAL
__________________________________________________________________
PRINTED NAME AND TITLE
__________________________________________________________________
ADDRESS
__________________________________________________________________
DATE
MARICOPA COUNTY
__________________________________________________________________
JACK SELLERS, CHAIRMAN, BOARD OF SUPERVISORS
DATE
ATTESTED:
__________________________________________________________________
CLERK OF THE BOARD
DATE
APPROVED AS TO FORM:
__________________________________________________________________
DEPUTY COUNTY ATTORNEY
DATE
Amendment No. 2
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SERIAL 220166-RFP
Revisions to contract in Red.
AFFORDABLE HOUSING DEVELOPMENT OPPORTUNITIES
220166-RFP
This Contract is entered into this 6th day of April 2022 by and between Maricopa County (“County”), a
political subdivision of the State of Arizona, and Acacia Heights II, LLC Housing for Hope, Inc., an
Arizona Limited Liability Company Nonprofit Corporation (“Contractor” or “Developer Housing for
Hope”).
1.0
CONTRACT TERM
This Contract is for a term of 2 years and 3 months 3 years and 1 month, beginning on the 18th
day of May 2022 and ending the 30th day of June 2024 30th day of June 2025; 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 Housing for Hope”).
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 date not to extend beyond December
31, 2026. 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 Housing for Hope’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
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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
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 Human Services Department, 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 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
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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.
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,
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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.
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
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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.
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 Avenue301 W. Jefferson St, Suite 700, 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.
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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.
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
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.
7.10.1 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
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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.
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 UNIQUE ENTITY IDENTIFER 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. Unique
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Entity Identifier (UEI) through www.sam.gov. 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.
The Contractor and all subcontractors or subrecipients shall have a valid Unique
Entity Identifier (UEI) number and an active profile in the federal System for Award
Management, or SAM.gov. Documentation of the UEI Number must be included in
all Project files.
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
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
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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.
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,
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SERIAL 220166-RFP
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
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
Amendment No. 2
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SERIAL 220166-RFP
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.
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: Proposed 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
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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
Housing and Community Development Manager
Phone Number: 602-506-5813
AND
Maricopa County
Office of Procurement Services
160 S. 4th Avenue 301 W. Jefferson St, Suite 700
Phoenix, Arizona 85003-1647
FOR CONTRACTOR:
Acacia Heights II, LLC Housing for Hope
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
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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.
7.33
ADMINISTRATIVE CHANGE ORDERS
The Chairman of the Board of Supervisors is authorized upon the recommendation
of the Human Services Department Director and the County Attorney to make
changes within the general scope of the contract on behalf of the County through
Administrative Change Orders. Administrative Change shall be approved and fully
executed by the Chairman of the Board of Supervisors and the Contractor.
Administrative Change Orders may address any of the following areas:
7.33.1 Modifications to the project timeline if the last day of the project timeline is
within the Agreement term;
7.33.2 Modifications to Budget line items if the Agreement Amount remains
unchanged;
7.33.3 Modifications required by federal, state, or County regulations, ordinances,
or policies; and
7.33.4 Modifications to Administrative requirements such as changes in reporting
periods, frequency of reports, or report formats required by local regulations,
policies or requirements.
7.34
FORCED LABOR OF ETHNIC UYGHURS
7.34.1 By submitting a bid for this solicitation and/or entering into a contract as a
result of this solicitation, contractor agrees to comply with all applicable
portions of Arizona Revised Statutes Section 35-394. Contracting;
procurement; prohibition; written certification; remedy; termination;
exception; definitions.
7.34.2 Contractor certifies that it does not currently, and agrees for the duration of
the contract, that it will not use:
7.34.2.1 The forced labor of ethnic Uyghurs in the People’s Republic of
China.
7.34.2.2 Any goods or services produced by the forced labor of ethnic
Uyghurs in the People’s Republic of China.
7.34.2.3 Any contractors, subcontractors or suppliers that use the forced
labor or any good or services produced by the forced labor of
ethnic Uyghurs in the People’s Republic of China.
7.34.3 If contractor becomes aware during the term of the agreement that
contractor is not in compliance with this paragraph, the contractor shall
notify the County within five business days after becoming aware of the
noncompliance. If the contractor fails to provide a written certification to the
County that the contractor has remedied the noncompliance within 180 days
after notifying the County of its noncompliance, then the agreement
terminates, except that if the agreement termination date occurs before the
end the 180 day period, the agreement terminates on the agreement
termination date.
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7.35
PROVISIONS REQUIRED BY LAW
Each and every provision of law and any clause required by law to be in this
Agreement will be read and enforced as though it were included herein and, if
through mistake or otherwise any such provision is not inserted, or is not correctly
inserted, then upon the application of either party, this Agreement will promptly be
physically amended to make such insertion or correction.
7.36
RELIGIOUS ACTIVITIES
The contractor agrees that costs, planned or claimed, including costs incurred,
shall not include any expense for any religious activity.
7.37
POLITICAL ACTIVITY PROHIBITED
None of the funds, materials, property, or services contributed by the County or the
contractor under the agreement shall be used in the performance of this agreement
for any partisan political activity, or to further the election or defeat of any candidate
for public office.
7.38
EQUAL EMPLOYMENT OPPORTUNITY
7.38.1 The contractor shall not discriminate against any employee or applicant for
employment because of race, age, disability, color, religion, sex, or national
origin. The contractor shall take affirmative action to ensure applicants are
employed and that employees are treated during employment without regard
to their race, age, disability, color, religion, sex, or national origin. Such
action shall include but is not limited to the following: employment,
upgrading, demotion or transfer, recruitment, or recruitment advertising, lay-
off or termination, rates of pay or other forms of compensation, and selection
for training, including apprenticeship.
7.38.2 Contractor shall comply with the following provisions:
7.38.2.1 Title VI and VII of the Civil Rights Act of 1964, as amended (42
U.S.C. §§
2000a, et seq.);
7.38.2.2 The Rehabilitation Act of 1973, as amended (29 U.S.C. §§ 701, et
seq.);
7.38.2.3 The Age Discrimination in Employment Act of 1967, as amended
(29U.S.C. §§ 621, et seq.);
7.38.2.4 The Americans With Disabilities Act of 1990 (42 U.S.C. §§ 12101, et
seq.); and Arizona Executive Order 2009-09, as amended, et seq.
which mandates that all persons shall have equal access to
employment opportunities.
7.38.2.5 Contractor understands that the United States has the right to seek
judicial enforcement of this assurance.
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7.39
CERTIFICATION REGARDING LOBBYING
7.39.1 Contractor certifies, to the best of their knowledge and belief, that:
7.39.1.1 No federal appropriated funds have been paid or will be paid, by or
on behalf of the contractor, to any person for influencing or
attempting to influence an officer or employee of any agency. This
applies to a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress in connection
with the awarding of any federal contract, the making of any federal
grant. Including the making of any federal, loan the entering into of
any cooperative agreement, and the extension, continuation,
renewal, amendment, or modification of any federal contract, grant,
loan, or cooperative agreement.
7.39.2 If any funds other than federal appropriated funds, have been paid or will be
paid to any person for influencing or attempting to influence an officer or
employee of any agency, member of Congress, an officer or employee of
Congress, or an employee of a member of Congress in connection with this
federal contract, grant, loan, or cooperative agreement, the undersigned
shall complete and submit Standard Form-LLL, “Disclosure Form to Report
Lobbying,” in accordance with its instructions.
7.39.3 Contractor shall include Lobbying Certification language in the award
documents for all subcontractors (including sub-grants, and contract under
grants, loans, and cooperative agreements) and that all sub-recipients shall
certify and disclose accordingly.
7.39.3.1 The Lobbying Certification is a material representation of fact upon
which reliance was placed when this transaction is made or
entered into. Submission of this certification is prerequisite for
making or entering into this transaction imposed by section 1352,
Title 31, U.S. Code. Any successful proposer(s) who fail to file the
required certification shall be subject to a civil penalty of not less
than $10,000.00 and not more than $100,000.00 for each such
failure.
7.40
CLEAN AIR ACT & CLEAN WATER ACT
Contractor must comply with all applicable standards, orders, or requirements
issued under section 306 of the Clean Air Act (42 U.S.C. 1857(h), section 508 of the
Clean Water Act (33 U.S.C. 1368) Executive Order 11738, and Environmental
Protection Agency regulations (40 CFR part 15).
7.41
ENERGY POLICY AND CONSERVATION ACT
Contractor must adhere to the standards and policies relating to energy efficiency,
which are contained in the State energy conservation plan issued in compliance with
the Energy Policy and Conservation Act (Pub. L. 94-163, 89 Stat.871).
[signature page follows]
Amendment No. 2
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EXHIBIT A-CONTRACTOR (DEVELOPER) INFORMATION
UNIQUE ENTITY ID
DG8CAKCGEWU7 MCVWH1NGFND3
DUNS #:
117402613 081251362
FEDERAL TAX ID #:
84-4442842 46-2084353
COMPANY NAME:
Acacia Heights II, LLC Housing for Hope, Inc.
DOING BUSINESS AS (dba):
MAILING ADDRESS:
4747 N. 7th Avenue Phoenix AZ 85013
REMIT TO ADDRESS:
TELPHONE NUMBER:
602-650-4807
FAX NUMBER:
WWW ADDRESS:
housingforhopeaz.org
REPRESENTATIVE NAME:
Stephen Capobres
REPRESENTATIVE TELEPHONE NUMBER:
4806993356
YES
NO
REBATE
WILL ALLOW OTHER GOVERNMENTAL ENTITIES TO
PURCHASE FROM THIS CONTRACT
WILL ACCEPT PROCUREMENT CARD FOR PAYMENT
FUEL COMPRISES (if applicable) 0% OF TOTAL BID AMOUNT
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.
PAYMENT TERMS: NET 30 0 DAYS
Amendment No. 2
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EXHIBIT B – STATEMENT OF WORK
Attachment B1: Project Description
Project Description:
The Project, as described herein as, 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:
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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; 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
Housing for Hope 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 Housing for Hope 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.
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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
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Homeownership Counseling
Counseling fee
$-
$-
$-
Program Administration Costs*
Program Management Services
$-
$-
$-
Staff
$-
$-
$-
Supportive Services
$-
$-
$-
$-
$-
$-
$-
$-
$-
$-
$-
$-
TOTALS
$1,500,000
$21,254,699
$22,754,699
FUND
SOURCES
Sources
Total
MCHSD ARPA Funds
Grant
$ 1,500,000
$ 1,500,000
BUDGET SUMMARY
Name of Activity: Acacia Heights II
ARPA Fund
Construction Hard Costs- Residential
$ 1,500,000
TOTALS
$ 1,500,000
The grant being provided pursuant to this Agreement shall be spent on Construction
Hard Costs, residential only. In the event Housing for Hope seeks to expend funds for
other than Construction Hard Costs residential, Housing for Hope shall obtain prior
written approval from the County before expending any grant funds for such item.
None of the funds provided pursuant to this Agreement may be expended for anything
that does not meet ARPA eligibility requirements. The County shall not reimburse any
funds expended that do not meet ARPA eligibility requirements.
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EXHIBIT B – STATEMENT OF WORK
Attachment B3: Proposed Project Schedule
Project Milestone
Estimated
Completion Date
Comments
Site Acquisition
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
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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 Housing
for Hope 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.
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EXHIBIT C – SPECIAL TERMS AND CONDITIONS
Funding Completion Date: June 30, 2024 June 30, 2025
Developer Acacia Heights II, LLC Vendor: Housing for Hope, Inc.
CFDA ALN Number: CFDA ALN 21.027 American Rescue Plan Act Coronavirus State and
Local Fiscal Recovery Funds
UEI Number: MCVWH1NGFND3
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 Housing for Hope, in response to said solicitation, did submit a
proposal for a project known as Acacia Heights II.
4.
County has reviewed Developer Housing for Hope’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 Housing for Hope money from the
allocation of ARPA funds made available to HSD, and to establish that the failure of
Developer Housing for Hope 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 Housing for Hope 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
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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 Housing for Hope 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.
h. “Work” shall mean Housing for Hope taking any and all steps necessary
and appropriate to ensure the creation of affordable housing units as
set forth in set forth in Exhibit B, attachment B1 and Exhibit D,
attachment D2 to the Contract. 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 Housing for Hope shall complete all Work as described on
Exhibit B to the Contract.
8.
County will provide grant funding to Developer Housing for Hope, 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. Housing for Hope shall provide County with a
financial assurance, in form satisfactory to County, that will assure the repayment of
$1,500,000 in the event Housing for Hope shall fail to meet the obligations of the
Contract.
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 Housing for Hope 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 Housing for Hope 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 is 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 Housing for Hope 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
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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 Housing for Hope 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 Housing for
Hope, 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 Housing for Hope of any deficiencies in the claim for
reimbursement and itemize what additional information, if any, is needed.
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
Housing for Hope by the County pursuant to the Contract. Developer Housing for Hope
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 2025, 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 Housing for Hope unless and until all project beneficiaries are named and income
qualified.
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16.
The County will not be liable for any contracts entered into by Developer
Housing for Hope 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, unless otherwise determined by the Human Services Department
but not to exceed a 5-year period per 2 CFR Part 200.330, Developer Housing for Hope
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
Housing for Hope 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 Housing for Hope 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 Housing for Hope 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 Housing for Hope 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 Housing
for Hope shall comply with all applicable provisions of American Rescue Plan Act 2021 and
the Coronavirus State and Local Fiscal Recovery Funds.
20.
Developer Housing for Hope 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 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 Housing for Hope shall acknowledge the contribution of the
County in all related publications during the Term of the Contract. Developer Housing for
Hope shall not use the name of Maricopa County in any other manner without prior written
consent. Developer Housing for Hope 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 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 Housing for Hope 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 Housing for Hope 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 Housing for Hope 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 Housing for
Hope 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 Housing for Hope 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 Housing for Hope 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 Housing for Hope 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 Housing for Hope’s letterhead, signed by
the Project’s authorized official/representative
2. Status update of the project along with photos showing the progress of the construction
3. Request for Reimbursement Form
4. Certified Request for Payment from Contractor
5. Contractor Invoices
6. Proof of payment-cancelled checks or EFT’s for all receipts submitted
The County reserves the right to delay processing of reimbursements under this
Agreement until all required documents and back-up information is submitted to
the County.
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EXHIBIT D- ADDITIONAL PROCEDURES/FORMS
Attachment D5: Sample Request for Reimbursement Cover Letter
DEVELOPER AGENCY LETTERHEAD
Date
Rachel Milne, Assistant Director
Maricopa County Human Services
Department 234 North Central
Avenue
Phoenix, AZ 85004
Re:
Project Name:
Quarterly Report Enclosed
Contract Number:
Payment Request Number:
Dear
:
This letter certifies that (Developer Agency) (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 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, between Acacia Heights II, LLC, a 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, Maricopa County Board of Supervisors authorized the sum of
$65,000,000 of the ARPA funding to be allocated to the Maricopa County Human
Services Department (“HSD”) to facilitate the creation of affordable housing within
the County; and 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
proposes to develop an affordable rental housing project located on lands within the
County of Maricopa, State of Arizona, the legal description of which is more particularly set
forth in Exhibit A and known as Salt River Flats ("Project"); and
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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
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secured and in such order as the Beneficiary may determine, or at the option of the
Beneficiary the entire amount so collected or any part thereof may be released to
Trustor. Such application or release shall not cure or waive any default hereunder or
cause discontinuance of any action that may have been or may thereafter be taken
by Beneficiary or Trustee because of such default.
6. Liability Insurance. Trustor shall, at Trustor’s expense, maintain in force policies of
liability insurance, with Beneficiary as an additional insured thereunder, insuring
Trustor against any claims resulting from the injury to or the death of any person or
the damage to or the destruction of any property belonging to any person by reason
of Beneficiary’s interest hereunder or the use and occupancy of Project Property by
Trustor. Such insurance shall be in the following amounts:
a. $2,000,000 against any claim resulting from injury to or the death of any one person.
b. $4,000,000 against any claim resulting from injury to or deaths of any number
of persons from any one accident.
c. $2,000,000 against any claim resulting from the damage to or destruction of
any property belonging to any person.
7. Processing of Insurance Policies. Trustor shall promptly deliver to Beneficiary the
originals or true and exact copies of all insurance policies including flood insurance
(if required) by this Deed of Trust. Trustor shall not do or omit to do any act which will
in any way impair or invalidate any insurance policy required by this Deed of 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,
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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.
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.
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14. Event of Default. In addition to any other items of default identified herein, each of
the following shall be considered an event of default ("“Event of Default"”) of this
Deed of Trust:
a. The occurrence of an event of default or breach of any provision of the
Agreement, Promissory Note or any other term of this Deed of Trust after written
notice to Trustor and an opportunity to cure such default or breach, or failure of
Trustor to pay on demand by Beneficiary any amount for which demand is made
on Beneficiary by the U.S. Federal Government arising from the failure by Trustor
of the Project Property to comply and is not caused, partially or otherwise by the
Trustee or Beneficiary.
b. The failure of Trustor to perform any duty or obligation required by the
Obligations Secured and such failure continues after applicable cure periods;
c. The removal or attempted removal by Trustor of any property included in the
Project Property without the consent of Beneficiary;
d. The failure of Trustor to maintain the Project Property in accordance with
paragraph 11 above and such failure continues after applicable cure periods;
e. Abandonment of the Project Property by Trustor;
f.
The filing, execution or occurrence of:
i. A petition in bankruptcy by or against Trustor which is not dismissed within
one hundred twenty (120) days.
ii. A petition or answer seeking a reorganization, composition, readjustment,
liquidation, dissolution or other relief of the same or different kind under any
provision of the Bankruptcy Act which is not dismissed within one hundred
twenty (120) days.
iii. Adjudication of Trustor as a bankrupt or insolvent, or insolvency in the
bankruptcy equity sense.
iv. An assignment by Trustor for the benefit of creditors, whether by trust,
mortgage or otherwise.
v. A petition or other proceedings by or against Trustor for the appointment of a
trustee, receiver, guardian, conservator or liquidator of Trustor with respect to
all or substantially all its property which petition is not dismissed within one
hundred twenty (120) days.
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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, in its sole discretion, allow Trustor such
additional time as may be reasonably necessary to cure the non-monetary
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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
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secured by this Deed of Trust, Trustor shall have the right to have any proceedings
begun by Beneficiary to enforce this Deed Trust discontinued and to have the Deed
of Trust reinstated at any time before the day of the Trustee’s Sale or before the filing
of a foreclosure action. In order to have the Deed of Trust reinstated after default, the
Trustor must:
a. Pay to Beneficiary the entire amount due under this Deed of Trust and the
Obligations Secured, other than such portion of the principal as would not be
due had no default occurred;
b. Cure all defaults or covenants or agreements of Trustor regarding the
Agreement as contained in this Deed of Trust;
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
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
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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.
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.
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
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.
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course of dealing or any failure to exercise, nor any delay in exercising any right,
power or privilege hereunder shall operate as a waiver thereof.
34. Succession of Benefits. The provisions of this Deed of Trust shall inure to the
benefit of and be binding upon the Parties hereto, their heirs, personal
representatives, conservators and permitted assigns.
35. Successor Trustee. Beneficiary may appoint a Successor Trustee in the manner
prescribed by law. A Successor Trustee herein shall, without conveyance from the
predecessor Trustee, succeed to all the predecessor’s title, estate, rights, powers
and duties. Trustee may resign by mailing or delivering notice thereof to Beneficiary
and Trustor.
36. Entire Agreement. The terms of this Deed of Trust, the Obligations Secured
and attached Exhibit A executed this date constitute the entire agreement among
the Parties and the Parties represent that there are no collateral or side
agreements not otherwise provided for within the terms of this Deed of Trust.
37. Time of Essence. Time is of the essence in this Deed of Trust and every term,
condition, covenant and provision hereof.
38. Modification. No modification of this Deed of Trust shall be binding unless
evidenced by an agreement in writing and signed by all Parties.
39. Partial Invalidity. If any provision of this Deed of Trust is held to be invalid or
unenforceable all the remaining provisions shall nevertheless continue in full force
and effect.
[SIGNATURES APPEAR ON FOLLOWING
TRUSTOR/BORROWER:
[Developer]
a [Arizona limited liability company]
STATE OF
)
) ss.
County of
)
The foregoing Deed of Trust was acknowledged before me this
day of
,
,
by
My Commission expires:
Notary Public
By:
[Name, Title]
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Reviewed, Approved and Agreed to Pursuant to Paragraph 38.
MARICOPA COUNTY, a political subdivision of the State of Arizona
My Commission expires:
Notary Public
[Name, Title]
STATE OF ARIZONA
)
) ss.
County of Maricopa
)
The foregoing Deed of Trust was acknowledged before me this
day of
,
, by
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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.
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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.
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]
My Commission expires:
Notary Public
STATE OF
)
) ss.
County of
)
The foregoing Promissory Note was acknowledged before me this
day of
, 2022,
by
.
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Exhibit A
[ADDITIONAL INFORMATION TO BE ADDED AT A LATER DATE]
List of Permitted Encumbrances (Order of Priority)
1.
[Lender]
2.
[Lender]
3.
[Lender]
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ACACIA HEIGHTS II LLC, 3356 S CULPEPPER CIR. SUITE 4, SPRINGFIELD, MARK 65801
PRICING SHEET: NIGP CODE 95296
Terms:
NET 30 DAYS
Vendor Number:
VS0000007171
Certificates of Insurance
Required
Contract Period:
To cover the period ending June 30, 2024.