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COOPERATION AGREEMENT
(Use of BEGIN Program Funds)
This COOPERATION AGREEMENT (“Cooperation Agreement”) dated as of __________, 2023 (“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”). City and Authority may at times be referred to individually as a “Party” and collectively as the “Parties.”
RECITALS
A. The Anaheim Housing Authority (“Authority”) is a California housing author ity duly organized and existing under the California Housing Authorities Law, Part 2 of Division 24, Section 34200, et seq., of the Health and Safety Code (“HAL”), and has been authorized to transact business and exercise the power of a California housing authority pursuant to action of the City Council (“City Council”) of the City of Anaheim (“City”); and B. The City is a California municipal corporation and charter city; and C. Greenlaw Partners, Inc. (“Developer”) submitted an application to the Anaheim Housing Authority (“Authority”) for down payment assistance for 29 affordable housing units located within a proposed 292-unit homeownership development project (“Project”). The Project known as “ 100 West ” (formerly “Anaheim Boulevard ”) is currently under construction and is located at 100-394 West Cerritos Avenue in Anaheim, California; and D. Specifically, the Developer requested that the City provide down payment assistance in the amount of up to $2,900,000 (“Down Payment Assistance”) from the City ’s Building Equity and Growth in Neighborhoods (“BEGIN”) program income funds to ass ist first-time home buyers for the Project. The City of Anaheim’s affordable housing program funds include funds received from loan pay- offs, including the BEGIN program. BEGIN funds serve as a revolving fund that help provide homeownership down payment assistance opportunities for moderate -income households; and
E. On January 30, 2018, the Authority approved a Preliminary Funding Commitment, approving down payment assistance for twenty -nine (29) unit s of the proposed 292- unit homeownership development project described herein as “Project” pursuant to that certain Preliminary Funding Commitment dated as of J anuary 18, 2018 by and between the Anaheim Housing Authority and Greenlaw Partners, Inc. (“Preliminary Commitment Letter with Greenlaw Partners”); and
F. In connection with the entitlements for the Project, the Developer also requested a density bonus pursuant to State Density Bonus Law, contained at 65915, et. seq., of the Government Code (“State law”) and the City of Anaheim’s density bonus program, contained at Title 18, Chapter
18.52, et seq. of the Anaheim Municipal Code (“Anaheim Density Bonus Law”). The City and New Developer entered into that certain Density Bonus Housing Agreement on or about June 1, 2022 to memorialize and implement the requirements and restrictions pertaining to the conditions of approval for the Project and State law and Anaheim Density Bonus Law; and 2 55806.00003\41028032.1
G. The 292-unit for-sale development consists of approximately 146 carriage units, 98 towns, and 48 flats, each product with 2-4 bedrooms, ranging from 1,200 to 1,953 square feet. Ten percent (10%) of the homes will be made available to moderate-income buyers earning up to 120% of Orange County Median Income, as determined by the United States Department of Housing and Urban Development and as set forth by regulation of the California Department of Housing and Community Development, pursuant to California Health and Safety Code Section 50093. The Anaheim Housing Authority (“Authority”) will assist those moderate -income buyers with down payment assistance. The remaining units will be non-restricted and sold to above-moderate income buyers; and
H. Developer subsequently transferred the development rights of the Project to Toll West Coast, LLC., (“New Developer”), which is currently in the f inal development stages of the Project; and
I. Because funding under the Preliminary Commitment Letter with Greenlaw Partners Inc. was not transferable to another party, on February 28, 2023, Anaheim Housing Authority approved a subsequent Preliminary Funding Commitment, under the same terms as the Preliminary Commitment with Greenlaw Partners, Inc., approving the down payment assistance for twenty-nine (29) units of the proposed Project, with New Developer; and J. The Anaheim Housing Authority and City (each a "Party" and jointly, the "Parties") desire to continue its on-going effort to provide down payment assistance for first time-homebuyers.
To this end, the City desires to make available to the Authority by this Cooperation Agreement $2,900,000 of BEGIN program funds to provide down payment assistance to prospective buyers for the Project.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL
PROMISES, COVENANTS AND CONDITIONS CONTAINED HEREIN, THE PARTIES SECTION 1. USE OF CITY FUNDS BY AUTHORITY.
City agrees to make available to Authority Two Million Nine Hundred Thousand Dollars ($2,900,000) of BEGIN Funds (“Project Funds”) held by the City to enable the Authority to provide down payment assistance to moderate -income, first -time homeb uyers for the 100 West home - ownership development.
Further, Authority covenants and agrees to use the Project Funds (i) in strict conformance with the BEGIN Loan Program Guidelines, as may be amended from time to time, to enable the provision of down- payment assistance t o qualified households , and (ii) in accordance with the Preliminary Funding Commitment Letter dated February 28, 2023.
SECTION 2. LIABILITY AND INDEMNIFICATION.
In contemplation of the provisions 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 of such Code, 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 imposed on it, or any of its officers, agents or employees by law for injury caused 3 55806.00003\41028032.1
by negligent or wrongful act or omission occurring in the performance of this Agreement to the same extent that such liability would be imposed in the absence of Section 895.2 of such Code.
To achieve the above-stated purposes, 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 OF AGREEMENT.
This Cooperation Agreement shall take effect from and after the date of adoption and approval by the Governing Board of the Anaheim Housing Authority and the City Council of the City.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties of Authority . 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 to 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, executed 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 Agre ement and all other documents 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 beha lf of Authority, and all 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 d elivered, or to be executed 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 lawful 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 4 55806.00003\41028032.1
diligence and during any period of curing shall not be in default. The injured Party shall gi ve written notice of default to 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 and is not cured promptly in a continuous diligent manner in a reasonable 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 this 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 equ ity 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 United 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 delivery 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 bri ngs an action or proceeding to enforce, protect or establish 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 protection 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. 5 55806.00003\41028032.1
(h) Governing Law. This Cooperation Agreement and any instruments given pursuant hereto shall be construed in accordance with and be gove rned by the laws of the State of California.
(i) Amendment. This 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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IN WITNESS, THE PARTIES HAVE EXECUTED THIS 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
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