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�` C". FEB 0 7 2013 AHSC IMPLEMENTATION AGREEMENT
C7 THIS AHSC IMPLEMENTATION AND MUTUAL INDEMNITY AGREEMENT (the
7XIDprl() "Agreement") is made and entered into as of February 5, 2019, between City of Santa Ana
5K45 0 ("Agency"), and National Community Renaissance of California, a California nonprofit public
ration ("Developer ,and collectively with the Agency, the "Parties", or
row r) benefit corpo
individually, a "Party"), upon the basis of the following facts, understanding and intentions of
the parties:
A. The State of California, the Strategic Growth Council ("SGC") and the
Department of Housing and Community Development ("HCD") issued a Notice of Funding
Availability dated November 1, 2018 (the "AHSC NOW), under the Affordable Housing and
Sustainable Communities ("AHSC') Program established under Division 44, Part 1 of the Public
Resources Code, commencing with Section 75200.
B. Developer is applying for AHSC funds in response to the AHSC NOFA to
provide funding for (A) construction of Legacy Square, a 93 -unit affordable housing project
located at 609 N. Spurgeon Street in the City of Santa Ana (the "Housing Project"); (B) the
construction of certain housing related infrastructure (the "HRI Improvements"); (C) the
construction of certain sustainable transportation infrastructure (the "STI Improvements"); (D)
the construction of certain transit related amenities (the "TRA Improvements"); and (E) certain
costs related to educational programs (the "AHSC Programs"). These improvements are
described in more detail in the Final Application to be submitted by February 11, 2019
(collectively, the "AHSC Application").
C. The AHSC Application seeks an award to the Developer in an aggregate amount
of $20,000,000 in AHSC funds including a loan (the "AHSC Loan") not to exceed $16,465,511
for an Affordable Housing Development (AHD) and a grant (the "AHSC Grant") in an amount
not to exceed $3,534,489 for Housing -Related Infrastructure (HRI), Sustainable Transportation
Infrastructure (STI), Transit -Related Amenities (TRA) or Program (PGM) activities as defined
the AHSC Program Guidelines adopted by SGC on October 29, 2018. The AHSC Grant funds
will be disbursed to the Developer. If awarded AHSC Grant funds, up to $3,081,360 thereof shall
be transferred to the City for the purpose of constructing STI Improvements and TRA
Improvements as shown in Exhibit 1.
D. The Agency and Developer are required to enter into this Agreement in order to
comply with the specific AHSC Program Threshold Requirement stated in Section 106 (a) 12
(A) of the 2018 AHSC Program Guidelines dated October 29, 2018 (the "Transportation Agency
Prior Experience Threshold Requirement"). This section of the guidelines dictates that applicants
must demonstrate prior experience by providing evidence of at least two prior projects that are
similar to the proposed AHSC project in scope and size, which have been completed by the
applicant, or joint applicant, during the ten (10) years preceding the application due date. This
section of the guidelines also states that the applicants may demonstrate the requisite experience
by using the past experience of work completed of a non -applicant so long as the applicants can
provide an executed agreement with that specific non -applicant for the completion of the related
work in the AHSC Application for which funding is sought. The purpose of this Agreement is
to, amongst other things, comply with the Transportation Agency Prior Experience Threshold
Requirement.
E. The Agency is a non -applicant, but, as set forth herein, shall implement the
specific STI Improvements and TRA Improvements, included in the AHSC Application as set
out in Exhibit 1 attached hereto (collectively, the "Transit Obligations").
F. The Developer shall be responsible for constructing and developing the Housing
Project, HRI Improvements, Educational Programs and TRAs or STI's not included in Exhibit 1
(together, the "Developer Obligations"), and for all costs and expenses related thereto and the
Agency shall be responsible for developing and constructing the Transit Obligations, and for all
costs expenses related thereto. In connection with the AHSC Grant and AHSC Loan, Developer
is required to enter into standard agreements, disbursement agreements, and regulatory
agreements with HCD where Developer will be liable for the full and timely performance by the
parties to complete the obligations set forth therein, including completion of the Housing Project,
completion of the HRI, STI and TRA Improvements, and funding of the AHSC Programs, as
described in the AHSC Application. The AHSC Application and all standard agreements,
disbursement agreements, regulatory agreements and any other agreements required by HCD in
connection with the AHSC Grant and AHSC Loan shall be collectively referred to herein as the
"AHSC Documents".
NOW, THEREFORE, in consideration of the recitals, covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
1. Obligations. The Agency shall complete the Transit Obligations in accordance
with the terms of the AHSC Documents and the approved design and construction documents.
The Developer shall, in its sole responsibility, complete the Developer Obligations in accordance
with the terms of the AHSC Documents and the approved design and construction documents.
2. Indemnification.
(a) Agency Indemnity. Agency shall indemnify, defend, protect, and
hold harmless the Developer and its affiliates, directors, officers, partners, members, agents and
employees (each, a "Developer Indemnified Party") against any and all third -party suits,
actions, claims, causes of action, liabilities, costs, and expenses (including attorneys' fees) as
incurred (collectively "Damages") arising out of or in connection with Agency's performance of
or failure to perform the Transit Obligations and/or obligations hereunder, in the manner and
within the time periods, and to otherwise perform any covenants, set forth in the AHSC
Documents applicable to the Transit Obligations or its obligations hereunder. However, in no
event shall a Developer Indemnified Party be indemnified hereunder for any Damages resulting
from such party's sole negligence or willful misconduct. Agency agrees to pay all of the costs
and expenses of the Developer Indemnified Parties, including attorneys' fees, which may be
incurred in any effort to enforce any term of this Agreement, including, but not limited to, all
such costs and expenses which may be incurred by any Developer Indemnified Party in any legal
action, reference or arbitration proceeding brought by HCD or other third party.
(b) Developer Indemnity. Developer shall indemnify, defend, protect,
and hold harmless the Agency and its affiliates, directors, officers, partners, members, agents and
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employees (each, an "Agency Indemnified Party") against any and all Damages arising out of
or in connection with Developer's performance of or failure to perform its Developer
Obligations to complete construction and development of the Housing Development, in the
manner and within the time periods, and to otherwise perform any covenants, set forth in the
AHSC Documents. However, in no event shall the Agency Indemnified Party be indemnified
hereunder for any Claims resulting from such party's sole negligence orwillful misconduct.
Developer agrees to pay all of the costs and expenses of the Agency Indemnified Party, including
attorneys' fees, which maybe incurred in any effort to enforce any termof this Agreement,
including, but not limited to, all such costs and expenses which may be incurred by any Agency
Indemnified Party in any legal action, reference or arbitration proceeding brought by HCD or
other third party.
(c) Notwithstanding the generality of the foregoing, neither party is
liable to the other party (including any person or entity claiming through the other party) for the
other party's lost profits or special, incidental, indirect, consequential, or exemplary damages
arising out of or in any manner connected with this agreement or its subject matter, regardless of
the form of action and whether or not the non -claiming party has been informed of, or otherwise
might have anticipated, the possibility of damages. However, the limitations of liability set forth
in this section 2(c) or elsewhere in this agreement do not apply to, or take into account, damages:
(i) resulting from the gross negligence, bad faith, or the willful or intentional misconduct of a
party or its personnel; or (ii) stemming from personal injury, death, or property damage caused
by a party or its personnel.
3. Schedule of Performance; Progress ss Reports. The Agency shall comply with the
schedule of performance set forth on Exhibit 2 attached hereto for the completion of the Transit
Obligations hereunder (the "Schedule of Performance").
4. Cost Overruns. Developer shall be responsible for paying all costs required to
complete the Housing Project, irrespective of whether such costs exceeds the AHSC Loan and
the portion of the AHSC Grant designated for the HRI Improvements. Agency shall be
responsible for paying all costs required for the Transit Obligations irrespective of whether such
costs exceed the portion of the AHSC Grant designated for the Transit Obligations.
5. Disbursement of AHSC Grant Funds. Developer and Agency agree that the
AHSC Grant funds shall be disbursed directly to the Partnership.
6. Notices. Formal notices, demands, and communications between the parties shall
be sufficiently given if, and shall not be deemed given unless, dispatched by registered or
certified mail, postage prepaid, return receipt requested, or delivered by express delivery service,
return receipt requested, or delivered personally, to the principal office of the parties as follows:
Agency:
City Manager
City of Santa Ana
20 Civic Center Plaza,
Santa Ana,CA 92701
Developer:
Michael Finn
Chief Financial Officer
National Community Renaissance of California
9421 Haven Avenue
Rancho Cucamonga, CA 91730
7. Events of Default. The occurrence of any of the following events shall constitute
an "Event of Default' under this Agreement:
(a) A Party fails to perform any of its obligations under this
Agreement, and does not cure such failure within 30 days after written notice of such failure has
been delivered to the defaulting party; or
(b) A Party purports to revoke this Agreement or this Agreement
becomes ineffective for any reason (other than by virtue of the application of clauses (i) or (ii) of
Section 8).
8. Termination. This Agreement shall terminate upon the earlier o£ (i) completion
of the all obligations under the AHSC Documents; or (ii) mutual agreement of the parties hereto;
or rn the occurrence of an Event of Default.
9. Third Party Beneficiary. The Partnership shall be a third;party beneficiary of this
Agreement and shall be entitled to the rights and benefits hereunder and may enforce the
provisions hereof as if it were a party to this Agreement.
10. Miscellaneous.
(a) Nothing in this Agreement shall be construed to limit any claim or right
which any party may otherwise have at any time against an indemnifying Party under Section 2
or any other person arising from any source other than this Agreement, including any claim for
fraud, misrepresentation, waste, or breach of contract other than this Agreement, and any rights
of contribution or indemnity under any federal or state environmental law or any other applicable
law, regulation, or ordinance.
(b) If any party delays in exercising or fails to exercise any right or remedy
against a Party, that alone shall not be construed as a waiver of such right or remedy. All
remedies of any Party against the other Party are cumulative.
(c) This Agreement shall be binding upon and inure to the benefit of each of
the parties hereto and their respective representatives, heirs, executor, administrators, successors,
and assigns. This Agreement may not be amended except by a written instrument executed by
the parties hereto.
(d) This Agreement shall be deemed to have been delivered and accepted in
the State of California and governed exclusively by the internal substantive laws of the State of
California as the same may exist at the date hereof. The parties hereto hereby agree that any
action hereon between the parties hereto and their successors in interest may be maintained in a
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court of competent jurisdiction located in the State of California, and consent to the jurisdiction
of any such California court for the purposes connected herewith.
(e) Each party hereto intends that this Agreement shall not benefit or create
any right or cause of action in or on behalf of any person other than the parties hereto and the
Partnership.
(f) This Agreement may be executed in multiple counterpart copies, any one
of which when duly executed, with all formalities hereof, shall be fully binding and effective as
the original of this Agreement.
(g) This Agreement shall be effective as of the date first written above,
provided however that in the event that the Developer does not receive an award of the AHSC
Loan and AHSC Grant, this Agreement shall automatically terminate and be of no further force
or effect.
(h) The provisions of this Agreement that, by their nature and content, must
survive the completion, rescission, termination, or expiration of this Agreement in order to
achieve the fundamental purposes of this Agreement will so survive and continue to bind the
Parties. Without limiting the generality of the foregoing, the Parties specifically acknowledge
that the provisions of Section 2 will survive and continue to bind the Parties.
`Signatures on following page]
Each of the undersigned hereby executes this Agreement in the spaces provided below to
evidence their respective agreement to the terms of this Agreement.
Agency:
By: _
Name: Steven A. Mendoza
Its: Acting City Manager
Developer:
National Community Renaissance of California
By:
Name:
Its:
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EXHIBIT 1
Transit Obligations
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LEGACY SQUARE - CITY OF SANTA ANA AHSC BUDGET
Transit Improvements STI
STI #1 -Bike Lanes
Civic Center Dr Bike lane Class II between Broadway and Santiago St $ 200,000
Bike lanes Class IV on Santiago St between Washington Ave to Trans Ctr. $ 160,000
STI#2 Traffic Calming
Flashing beacon @ 6th/Mortimer
$
57,600
Speed cushion on 5th St. between Mortimer/Minter
$
4,800
Speed cushion between Porter St./Lacy St
$
4,800
Rapid flashing beacon @ 4th/Garfield
$
57,600
Mortimer/6th Pocket Park
$
200,000
French St. sidewalk widening/road diet
$
146,560
STI#3 Improved Walkways and Crossings
Repair sidewalk at 6th St. between Minter/Porter
$ 115,200
Repair sidewalk at Santa Ana Blvd. between Lacy/alley
$ 115,200
Repair sidewalk between 5th/alley
$ 115,200
Construct sidewalk on the SE comer at 6th/Garfield
$ 115,200
Repair sidewalk NW comer @ 4th/Garfield
$ 115,200
Four (4) high visibility continental crosswalks @ 6th/Mortimer
$ 9,600
Four (4) high visibility continental crosswalks @ Garfield/Brown
$ 9,600
Two (2) high -visibility continental crosswalks at 6th /Brown/Lacy
$ 4,800
One (1) high -visibility continental crosswalk @ 6th/Garfield
$ 2,400
Four (4) high visibility continental crosswalks @ 4th/Lacy St.
$ 9,600
One (1) high -visibility continental crosswalk @ 4th/Garfield
$ 2,400
Two (2) red curb near crosswalk on NW comer at 6th/Brown
$ 19,200
Two (2) curb ramps at east end @ 6th/Garfield
$ 19,200
Four(4)curb extensions @ 4th/Lacy St.
$ 256,000
One (1) curb extension NW and SW @ 4th/Garfield
$ 64,000
Four (4) curb extensions @ 3rd/Lacy St
$ 256,000
Four (4) curb extensions @ 3rd/Garfield St
$ 256,000
Lighting improvements @ Brown/Lacy/Garfield/4th St. around Garfield Elementary
$ 631,200
TRA #1
Six (6) Bus Shelters
$
Subtotal
$2,947,360
City STI/TRA Subtotal
$3,081,360
TRA
134,000
$134,000
Schedule of Performance
Exhibit 2: Schedule of Performance
Note: It is acknowledged that some of the following milestones may have already been achieved. For those milestones which have previously been met,
the month and year completed has been provided. For those milestones not yet completed, a projected completion date (MIANY) for each of the
applicable items is provided below.
STI MILESTONES
TRA Capital Project Milestone Schedule
STI Capital Project Milestone Schedule
Date
Executed binding agreement between the Recipient and developer of the proposed development detailing the terms and conditions of
the Project development
07119
Site Control of site(s) by proposed developer.
07/19
Completion of all necessary environmental clearances, including those required under CEQA and NEPA
12119
Obtaining all necessary and discretionary public land use approvals.
::12/19
Submission of Final Construction Drawings and Specifications to the appropriate local permitting authority.
12/20
Commencement of construction.
09/21
Construction completion and closeout.
04122
Program funds fully disbursed
06/22
TRA MILESTONES
TRA Capital Project Milestone Schedule
Date
Executed binding agreement between the Recipient and developer of the proposed development detailing the terms and conditions
of the Project development
07/19
Site Control of site(s) by proposed developer.
07/19
Completion of all necessary environmental clearances, including those required under CEQA and NEPA.
12119
Obtaining all necessary and discretionary public land use approvals.
` 12119
Submission of Final Construction Drawings and Specifications to the appropriate local permitting authority.
12120
Commencement of construction.
: .:09/21
Construction completion and closeout.
04/22
Program funds fully disbursed.
06/22