HomeMy WebLinkAboutMETA HOUSING CORPORATION (SANTA ANA COLLECTIVE LLC PROJECT) - 2017 A-2017-177
INDEMNITY AGREEMENT
This Indemnity Agreement (the "Agreement") is made and entered into as of this
t,T"day of July, 2017, by and between Meta Housing Corporation, a California corporation
("Meta"), and the City of Santa Ana, a charter city and municipal corporation organized and
existing under the Constitution and laws of the State of California (the "City"), with reference to
the following recitals of fact:
RECITALS:
A. WHEREAS, Meta is a member of Santa Ana Arts Collective LLC, a California
limited liability company (the "Administrative General Partner"), the administrative general
partner of Santa Ana Arts Collective L.P., a California limited partnership (the "Partnership").
B. WHEREAS, the Partnership owns and wishes to develop an adaptive reuse
project consisting of a fifty-eight (58) unit multi-family residential affordable housing
development, with live/work units and a possible commercial art studio, as well as a community
room (the "Project") located at 1666 N. Main Street, within the City of Santa Ana, California (the
"Property").
C. The State of California, the Strategic Growth Council and the Department of
Housing and Community Development ("HCD") issued a Notice of Funding Availability dated
January 30, 2015 as amended TBD (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.
D. Meta and the City, as co-applicants, applied for AHSC Program Funds in
response to the AHSC NOFA to provide funding for the Project as well as funding for public
improvements to be constructed by the City.
E. HCD awarded Meta and the City an aggregate amount of$6,254,630 in AHSC
Program Funds consisting of(A) $4,944,130 of AHSC Program Loan Funds for a permanent
loan for the Project ("AHSC Loan") and (B) $1,288,000 of AHSC Program Grant Funds for a
grant which will be disbursed to the City ("AHSC City Grant") to be used for the City's
Sustainable Transportation Infrastructure ("STI") and (C) $22,500 of AHSC Program Grant
Funds for a grant which will be disbursed to the Sponsor ("AHSC Sponsor Grant") to be used to
support the Southern California Association of Governments' Go Human program (the AHSC
City Grant and ASHC Sponsor Grant shall be collectively referred to herein as the "AHSC
Grant", and collectively with the AHSC Loan, the "AHSC Financing").
F. The City and Meta are required to enter into a Standard Agreement for the AHSC
Loan (the "AHSC Loan Standard Agreement") and a Standard Agreement for the AHSC Grant
(the "AHSC Grant Standard Agreement", and collectively with the AHSC Loan Standard
Agreement, the "AHSC Standard Agreements") with HCD where each will be jointly and
severally liable for the full and timely performance by the Partnership and the City to complete
the obligations set forth in the AHSC Standard Agreements, including completion of the Project
and the transit-oriented infrastructure.
G. In order to induce the City to agree to enter into the AHSC Standard Agreements
(collectively, the "Standard Agreements"), Meta has agreed to indemnify the City in accordance
with the provisions set forth below. In order to induce Meta to agree to enter into the AHSC
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Standard Agreements, the City has agreed to indemnify Meta in accordance with the provisions
set forth below.
H. WHEREAS, the City shall complete the STI and Meta shall cause the Partnership
to complete the Project.
WHEREAS, under the AHSC Standard Agreements, Meta and the City are jointly
and severally liable for the completion of the STI and the Project and all other obligations under
the AHSC Standard Agreements.
J. WHEREAS, Meta and the City wish to agree to indemnify one another, and
certain related parties, against their respective responsibilities to complete the Project and STI
under the AHSC Standard Agreements in accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, and for other good and
valuable consideration, the receipt and adequacy of which is hereby acknowledged, Meta and
the City hereby agree as follows:
AGREEMENT:
1. Meta Indemnity. Meta shall indemnify, defend (with counsel approved by City)
and hold the City and its officers, directors, employees, agents, consultants and contractors
(collectively, "City Indemnitees") harmless from and against any and all claims arising in
connection with any breach by Meta, the Partnership, any affiliate of Meta, or any contractor,
subcontractor, agent or employee of Meta, the Partnership or any affiliate of Meta of any term or
condition of the AHSC Financing, including the AHSC Standard Agreements and any related
documents executed by Meta, the Partnership, any affiliate of Meta, including without limitation,
any claim arising as a result of Meta's or the Partnership's failure to complete the Project under
the AHSC Standard Agreements, provided, that Meta's indemnification obligations under this
Agreement shall not extend to the extent such claims result from negligence, fraud, or willful
misconduct on the part of any one or more of the City Indemnities. It is further agreed that City
does not and shall not waive any rights against Meta or the Partnership that it may have by
reason of this indemnity and hold harmless agreement because of City's acceptance, or Meta's
or the Partnership's deposit with City of any of the insurance policies.
2. City Indemnity. The City is responsible for using proceeds of the AHSC City
Grant to fund construction of the STI in accordance with the AHSC Grant Standard Agreement.
The City shall indemnify, defend and hold Meta, and its respective officers, directors,
employees, agents, consultants, contractors, partners and affiliates (collectively, "Meta
Indemnitees") harmless from and against all claims, losses, costs, damages, liability and
judgments, including reasonable attorneys' fees incurred by or asserted against any Meta
Indemnitees arising in connection with any breach of any term or condition of the AHSC
Financing, including the AHSC Standard Agreements and any related documents by City or any
affiliate of City or any contractor, subcontractor, agent or employee of City, including without
limitation, any claims, losses, costs, damages, liability and judgments, including reasonable
attorneys' fees, arising out of City's failure to complete construction of the STI within the
timeframe required by the AHSC Grant Standard Agreement or AHSC Financing, provided, that
the City's indemnification obligations under this Agreement shall not extend to claims resulting
solely from the gross negligence or willful misconduct of any one of the Meta Indemnitees.
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3. Attorneys Fees and Expenses. Any party found by a court of competent
jurisdiction or by an arbitrator to have breached or to be breaching this Agreement shall be
liable for the reasonable attorneys'fees and costs actually incurred by the injured party in
enforcing this Agreement, remedying the breach, or recovering damages for any such breach,
including rescinding this Agreement and fully prosecuting its rights and claims surrendered
hereby.
4. Governing Law. This Agreement shall be construed and interpreted in
accordance with the substantive laws of the State of California, without regard to principles of
conflicts of laws. Both parties further agree that Orange County, California, shall be the venue
for any action or proceeding that may be brought or arise out of, in connection with or by reason
of this Agreement.
5. Headings. The headings used herein are for convenience only, and do not limit
or alter the terms of this Agreement or in any way affect the meaning or interpretation of this
Agreement.
6. Successors and Assigns. This Agreement shall be binding on the parties hereto,
and any and all heirs, administrators, executors, successors, creditors and assigns thereof.
7. Validity. The invalidity or unenforceability of any terms or provisions of this
Agreement shall not affect the validity or enforceability of any other provisions of this
Agreement, which shall remain in full force and effect and, if such unenforceable provision
hereof is enforceable in any part or to any lesser extent, such provision shall be enforceable to
the greatest extent permissible under applicable law.
8. Remedies Cumulative. Each right and remedy provided for herein shall be
cumulative and non-exclusive, and shall be in addition to every other right or remedy provided
for herein or now or hereafter existing at law or in equity or by statute or otherwise.
9. Entire Agreement. This Agreement embodies the entire agreement and
understanding between Meta and the City with respect to its subject matter and supersedes all
prior agreements and understandings, written and oral, between Meta and the City related to
that subject matter.
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IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the
day and year first set forth above.
"City"
CITY OF SANTA ANA
Maria D. Huizar 7Cynthia
J. Kurtz
Clerk of the Council Interim City Manager
APPROVED AS TO FORM
Sonia R. Carvalho
City nrney`
i ala.
_
By. ir-n�O'i, Hodge
Assi t t Citi, Attorney
REC MENDED FOR APPROVAL:
„747
Robert C.`Cortez
Acting Executive Director
Community Development Agency
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"Meta"
META HOUSING CORPORATION, a California
corporation
By:
Kasey M. + resident
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Indemnity Agreement
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