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HomeMy WebLinkAboutNATIONAL COMMUNITY RENAISSANCE OF CALIFORNIA (2)A-2020-017 ��`�``i1vaSON �QvOwvt�� AHSC IMPLEMENTATION AGREEMENT THIS AHSC IMPLEMENTATION AND MUTUAL INDEMNITY AGREEMENT (the "Agreement") is made and entered into as of February 4, 2020, between City of Santa Ana ("Agency"), and -National Community Renaissance of California, a California nonprofit public benefit corporation ("Developer", and collectively with the Agency, the "Parties", or 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, 2019 (the "AHSC NOFA" ), 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 will be described in more detail in the Final Application to be submitted by February 11, 2020 (collectively, the "AHSC Application"). C. The AHSC Application seeks an award to the Developer in an aggregate amount not to exceed $30,000,000 in AHSC funds including a loan (the "AHSC Loan") not to exceed $18,000,000 for an Affordable Housing Development (AHD) and a grant (the "AHSC Grant") in an amount not to exceed $12,000,000 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 31, 2019. The AHSC Grant funds will be disbursed to the Developer. If awarded AHSC Grant funds, up to $2,000,000 thereof shall be transferred to the City for the purpose of constructing STI Improvements and TRA Improvements. More specifically, the proposed improvements include a bikeway installation, crosswalk enhancements, sidewalk improvements, urban greening and traffic calming within the project area. These improvements will be described in more detail in the AHSC Application to be submitted by February 11, 2020. 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 2019 AHSC Program Guidelines dated October 31, 2019 (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. (collectively, the "Transit Obligations"). F. The Developer shall be responsible for constructing and developing the Housing Project, and certain HRI Improvements, Educational Programs and TRAs or STI's (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. hi 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 hidemnified Parties, including attorneys' fees, which may be incurred in any effort to enforce any term of this Agreement, including, but not limited to, all 2 such costs and expenses which may be incurred by any Developer Indemnified Parry 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 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 or willful misconduct. Developer agrees to pay all of the costs and expenses of the Agency Indemnified Party, 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 Agency Indemnified Party in any legal action, reference or arbitration proceeding brought by HCD or other third parry. (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 Reports. The Agency shall comply with the schedule of performance set forth on Exhibit 1 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 Parry 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 parry; 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 of: (i) completion of the all obligations under the AHSC Documents; or (ii) mutual agreement of the parties hereto; or (iii) the occurrence of an Event of Default. 9. Third Party Beneficiary. The Partnership shall be a third parry 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 parry 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 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 parry 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] A_2020-0V 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: Its: Developer: National Coommunity Renaissance of California By: Name: IL-hvel H. c. Its: c7�zc,xf'�Ve ;-z t�r+✓s,,, Eh-f' AS TO FORM City Attorney KRISTINE RIDGE � 4�0� CITY MANAGER AT I :ll(•o CLERK OF TH COUNCIL r�, EXHIBIT 1 Schedule of Performance Exhibit 1: 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 (MA," for each of the applicable items is provided below. STI MILESTONES STI Capital Project Milestone Schedule Estimated Date* Executed binding agreement between the Recipient and developer of the proposed development detailing the terms and conditions of the Project development 02/20 Site Control of site(s) by proposed developer. 12118 Completed of all necessary environmental clearances, including those required under CEQA and NEPA. NIA Obtained all necessary and discretionary public land use approvals. NIA -by right Submission of Final Construction Drawings and Specifications to the appropriate local permitting authority. 8/41 Commencement of construction. 9121 Construction completion and closeout. 12123 Program funds fully disbursed. 12123 TRA MILESTONES TRA Capital Project Milestone Schedule Estimated Date* Executed binding agreement between the Recipient and developer of the proposed development detailing the terms and conditions of the Project development. 02/20 Site Control of site(s) by proposed developer. 12/18 Completed of all necessary environmental clearances, including those required under CEQA and NEPA. NIA Obtained all necessary and discretionary public land use approvals. NIA -by right Submission of Final Construction Drawings and Specifications to the appropriate local permitting authority. 6/21 Commencement of construction. 9121 Construction completion and closeout. 12/23 Program funds fully disbursed. - 12/23 * Subject to change after award of AHSC funds. Schedule to be finalized with City, HCD and Developer.