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1 COOPERATION AGREEMENT
(State General Fund Allocation—Acquisition of Motel)
This COOPERATION AGREEMENT (“Cooperation Agreement”) dated as of __________, 20 22 (“Date of Agreement”), is entered into by and between the CITY OF ANAHEIM, a charter city and California municipal corporation (“City”), and the ANAHEIM HOUSING AUTHORITY, a public body, corporate and politic (“Authority”).
R E C I T A L S
A. The City is a California charter city and municipal corporation and, under legislation that amends the 2021-2022 State Budget to reflect the State’s budget agreement, has been designated as a recipient of an appropriation under the State of California ’s general fund under the 2021-2022 State Budget;
B. Specifically, SB 129 adds Section 19.56(b)(200) to the 2021-2002 St ate Budget to provide the City of Anaheim with funds in the amount of $5,500,000 for the acquisition of the Kona Motel;
C. Unless otherwise specified, the fun ds appropriated in Section 19.56(b)(200) shall not be disbursed for any project prior to September 30 , 2021. Future legislation may, but is not required to, specify further details concerning the manner of disbursement of these funds.
D. Authority and the City (each, a “Party” and together, the “Parties”) desire to ensure that the appropriation made to the City is used for the acquisition of a motel for housing. To this end, the City desires to make available and transfer to the Authority by this Cooperation Agreement $5,500,000 in appropriation from the State’s general fund under the 2021-2022 State Budget. Once a motel has been acquired, staff will issue a Request for Proposals (RFP) to solicit Developer proposals to convert and rehabilitate a motel for the purposes of creating aff ordable housing opportunities.
Once the RFP process is completed, staff will present the proposal from the selected Developer to the Housing Authority Governing Board for review and approval.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL
PROMISES, COVENANTS AND CONDITIONS CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS:
Section 1. TRANSFER OF FUNDS BY CITY TO AUTHORITY . City agrees to transfer to Authority $5,500,000 of funding from 2021-2022 State Budget:
(a) Further, Authority covenants and agrees to use the appropriation in any manner that may be designated by future legislation.
Section 2. LIABILITY AND INDEMNIFICA TION. In contemplation of the provision of Section 895.2 of the California Government Code imposing certain tort liability jointly upon public entities solely by reason of such entities being parties to an agreement as defined by Section 895.4 and 895.6 of such Code, each of the Parties, as between themselves, pursuant to the authorization contained in Section 895.4 and 895.6 of such Code, will each assume the full liability Draft
2 imposed on it, or any of its officers, agents, or employees by law for injury caused by negligent or wrongful act or omission occurring in the performance of this Cooperation Agreement to the same extent that such liability would be imposed in the absence of Section 895.2 of such Code. (a) To achieve the above -stated pur poses, each Party indemnifies and holds harmless the other Party for any loss, costs or expense that may be imposed upon such other Party solely by virtue of such Section 895.2. The provisions of Section 2778 of the California Civil Code are made part hereof as if fully set forth herein.
Section 3. EFFECTIVE DATE . This Cooperation Agreement shall take effect from and after the date of approval hereof by the Authority Board and the City Council.
Section 4. REPRESENTATIONS AND WARRANTIES
(a) Representations and Warranties of Authori ty. Authority hereby represents and warrants to City as follows:
(i) Authority of Anaheim Housing Authority . Authority represents and warrants to City it is a public body, corporate and politic, duly existing pursuant to the HAL, and it has been authorized t o transact business pursuant to action of the City Council. Authority has full power and authority to execute and deliver this Cooperation Agreement and to accept the funds contemplated hereunder, to execute and deliver documents or instruments, if any, e xecuted and delivered, or to be executed and delivered, pursuant to this Cooperation Agreement, and to perform and observe the terms and provisions of all of the above. (ii) Authority of Persons Executing Documents . This Cooperation Agreement and all other doc uments or instruments executed and delivered, or to be executed and delivered, pursuant to this Cooperation Agreement have been executed and delivered by persons who are duly authorized to execute and deliver the same for and on behalf of Authority, and al l actions required under Authority’s organizational documents and applicable governing law for the authorization, execution, delivery and performance of this Cooperation Agreement and all other documents or instruments executed and delivered, or to be exec uted and delivered, pursuant to this Cooperation Agreement, have been duly taken.
(b) Representations and Warranties of City. City represents and warrants to Authority that it is a charter city and municipal corporation . City has full right, power and la wful authority to enter into this Cooperation Agreement and the execution, performance and delivery of this Cooperation Agreement by City, and persons on behalf of City, have been fully authorized by all requisite actions on the part of the City Council.
Section 5. DEFAULT AND REMEDIES.
(a) Events of Default . Failure by either Party to duly perform, comply with, or observe any of the conditions, terms, or covenants of this Cooperation Agreement shall be an Event of Default. The Party who so fails or delays must immediately commence to cure, correct or remedy such failure or delay, and shall complete such cure, correction or remedy with reasonable diligence and during any period of curing shall not be in default. The injured Party shall give written notice of default t o the Party in default, specifying the default complained of by the injured Party. If the default is not commenced to be cured within thirty (30) days after service of such notice of default Draft
3 and is not cured promptly in a continuous diligent manner in a r easonable period of time after commencement, the defaulting Party shall be liable for any damages caused by such default, and the non defaulting Party may thereafter commence action for damages with respect to such default or for specific performance of this Cooperation Agreement.
(b) Remedies. The occurrence of an Event of Default by Authority that is not cured within the time set forth herein shall relieve City of any obligation to disburse the Project Funds. The Authority may seek specific performance of t his Cooperation Agreement for City’s failure to provide the Project Funds as provided under this Cooperation Agreement. The non-defaulting Party may seek money damages or any other remedy available at law or equity against the defaulting Party for an Event of Default hereunder.
Section 6. MISCELLANEOUS
(a) Time. Time is of the essence in this Cooperation Agreement. (b) Notices. Any notice requirement set forth herein shall be deemed to be satisfied as follows: (i) three (3) days after mailing of the notice first class Uni ted States certified mail, postage prepaid, or (ii) the next business day after the notice or communication has been delivered by hand or sent by telecopy or overnight delivery service, addressed to the appropriate Party. The designated person for deliver y of notices hereunder shall be as follows: (i) to the City Manager for notices to City, and (ii) to the Authority Executive Director for notices to Authority.
(c) Attorneys’ Fees . If either Party brings an action or proceeding to enforce, protect or establi sh any right or remedy hereunder, the prevailing Party shall be entitled to recover from the other Party its costs of suit and reasonable attorneys’ fees. (d) No Third Parties Benefited . This Cooperation Agreement is made and entered into for the sole protect ion and benefit of City, its successors and assigns, and the Authority, its successors and assigns, and no other person or persons shall have the right of action hereon. (e) Successors and Assigns. The terms hereof shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto; provided, however, that no assignment of Authority’s rights hereunder shall be made, voluntarily or by operation of law, without the prior written consent of City and that any such assignment without said consent shall be void. (f) Construction of Words . Except where the context otherwise requires, words imparting the singular number shall include the plural number and vice versa, words imparting persons shall include firms, associations, partnerships and corporations, and words or either gender shall include the other gender.
(g) Partial Invalidity. If any provision of this Cooperation Agreement shall be declared invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions hereof shall not in any way be affected or impaired. (h) Governing Law . This Cooperation Agreement and any instruments given pursuant hereto shall be construed in accordance with and be governed by the laws of the State of California.
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4 (i) Amendment. T his Cooperation Agreement may not be changed orally, but only by agreement in writing signed by Authority and City. (j) Captions and Headings. Captions and headings in this Cooperation Agreement are for convenience of reference only, and are not to be considered in construing the Cooperation Agreement.
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5 IN WITNESS , THE PARTIES HAVE EXECUTED T HIS COOPERATION AGREEMENT AS OF THE EFFECTIVE DATE IN THE FIRST PARAGRAPH ABOVE. “CITY”
CITY OF ANAHEIM
a municipal corporation
Dated:
Director of Housing and Community
Development Department
ATTEST:
THERESA BASS, CITY CLERK
Theresa Bass
APPROVED AS TO FORM:
CITY ATTORNEY
Leonie Mulvihill
Assistant City Attorney
or Authorized Designee
AUTHORITY:
ANAHEIM HOUSING AUTHORITY, a public
body, corporate and politic
Dated: _______________ By:
Executive Director of the Housing Authority
ATTEST:
THERESA BASS, AUTHORITY SECRETARY
Theresa Bass
APPROVED AS TO FORM:
BEST BEST & KREIGER
as Special Counsel to City