ATTACHMENT 2
COOPERATION AGREEMENT
(North Harbor Apartments)
This COOPERATION AGREEMENT (North Harbor Apartments ) (“Cooperation Agreement”) dated as of April 18, 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”).
R E C I T A L S
A. City is a Califo rnia charter city and municipal corporation and a participating jurisdiction with the United States Department of Housing and Urban Development (“HUD”) that has received funds (“HOME-American Rescue Plan Act Funds” or “HOME-ARP”) from HUD pursuant to section 217 of the Cranston Gonzalez National Affordable Housing Act of 1990, as amended (42 U.S.C. 12701 et seq.) (“NAHA”). On April 8, 2021, HUD allocated HOME-ARP funds to 651 grantees using the formula established at 24 CFR 92.50 and 92.60.
B. HOME-ARP provides funds for homelessness and supportive services assistance under the HOME statute of Title II of NAHA (42 U.S.C. 12721 et seq.) and authorizes the Secretary of HUD to waive or specify alternative requirements for any provision of NAHA or regulation for the administration of the HOME-ARP program, except requirements related to fair housing, civil rights, nondiscrimination, labor standards, and the environment, upon a finding that the waiver or alternative requirement is necessary to expedite or facilitate the use of HOME -ARP funds. Pursuant to ARP, the per-unit cost limits (42 U.S.C. 12742(e)), commitment requirements (42 U.S.C. 12748(g)), matching requirements (42 U.S.C. 12750), and set -aside for housing developed, sponsored, or owned by community housing development organizations (“CHDOs”) (42 U.S.C. 12771) in NAHA do not apply to HOME-ARP funds.
C. City has been allocated grant funding provided by HUD pursuant to the Housing Opportunities for Persons With AIDS ("HOPWA") program authorized under the AIDS Housing Opportunity Act (42 U.S.C. 12901 et seq.) (herein referred to as the "HOPWA Act") and the HOPWA program regulations (24 CFR Part 574); and Section 574.300 (Eligible Activities) of the HOPWA Regulations authorizes the use of HOPWA funds for acquisition, rehabilitation, conversion, lease, and repair of facilities to provide housing and services among other activities with HOPWA funds.
D. Authority is a California housing authority acting under the California Housing Authorities Law, Part 2 of Division 24, Section 34200, et seq., of the Health and Safety Code (“HAL”).
Authority serves as the housing successor to the former Anaheim Redevelopment Agency (the “Former Agency”) and administers the Former Agency’s Low and Moderate Housing Asset Fund (the “Housing Asset Fund”) pursuant to Health and Safety Code Sections 34176 and 34176.1.
E. Linc Housing Corporation, a California limited liability company (“Developer”) is the owner of land consisting of approximately 1.47 acres located at 1251 N Harbor Boulevard (the “Site”) and has proposed to develop and operate thereon a n 89 unit affordable rental housing project , which includes 2 manager units (the “Project”).
2 F. As part of its proposal, Developer has requested that City transfer Four Million Nine Hundred Thousand Six-hundred and Forty-Nine Dollars ($4,900,649) in whole or in part from (the “Designated HOME-ARP Amount”) moneys available to City under the HOME-ARP Program and/or (the “Designated HOPWA Amount”) under the HOPWA Act. Developer has indicated its intention to secure an allocation of Tax Credit as part of the funding of the Project.
G. In order to eliminate deterioration and to revitalize the Site and the surrounding and nearby area, Authority and Developer are negotiating toward a comprehensive transactional agreement (an “Affordable Housing Agreement”). Pending the negotiation and preparation of the Affordable Housing Agreement, the Authority has executed a letter which sets forth certain preliminary and tentative deal points (the “Preliminary Commitment Letter”).
H. In view of the proposal as received by Authority from Developer , the Authority and City are entering into this Cooperation Agreement pursuant to which the City agrees to contribute up to the Designated HOME-ARP Amount and/or the Designated HOPWA Amount in moneys sourced from the City’s HOME -ARP Funds and/or HOPWA Act Funds for purposes of assisting in the development of the Project, as hereinafter further determined.
I. Based upon the foregoing, the City desires to make available and transfer to the Authority by this Cooperation Agreement HOME -ARP Funds up to the Designated HOME -ARP Amount and/or HOPWA Act Funds up to the Designated HOPWA Amount.
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 up to the Designated HOME -ARP Amount of HOME-ARP Funds and/or up to the Designated HOPWA Amount (with the actual amount as transferred constituting “Project Funds”) held by the City to enable the Authority to proceed with and complete those activities which Authority deems to be necessary and appropriate to accomplish the Project (“Activities”). (a) Further, Authority covenants and agrees to use the Project Funds (i) in strict conformance with Title II of the Cranston-Gonzalez National Affordable Housing Act (42 U.S.C. 12701-12839) and the HOME Program Regulations codified at 24 CFR Part 92, as amended by the 2013 HOME Final Rule , if applicable, (ii) in strict conformance with the HOPWA Regulations, if applicable, and (iii) to implement and perform the Activities in order to expand the supply of decent, safe, sanitary and affordable housing for Extremely Low, Very Low Income and Low Income Households, and in accordance with any other applicable rules. (b) Authority may elect to use Housing Asset Funds and/or HOPWA Funds to fund all or portion or combination thereof to fund the Project , in the sole discretion of the Authority Executive Director.
Section 2. LIABILITY AND INDEMNIFICATION. 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 imposed on it, or any of its 3 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 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. 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 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) A
uthority of Persons Executing Documents. This Cooperation Agreement 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 behalf 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 delivered, 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 diligence and during any period of curing shall not be in default. The injured Party shall give 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 4 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 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) 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. (c) 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. (d) 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.
(e) Partial Invalidity. If any provision of this Cooperation Agreement shall be declared invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remai ning provisions hereof shall not in any way be affected or impaired. (f) 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.
(g) Amendment. This Cooperation Agreement may not be changed orally, but only by agreement in writing signed by Authority and City.
(h) 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.
[signature blocks for Cooperation Agreement on next page] 5 IN WITNESS , THE PARTIES HAVE EXECUTED THIS COOPERATION
AGREEMENT (NORTH HARBOR APARTMENTS) AS OF THE EFFECTIVE DATE IN THE FIRST PARAGRAPH ABOVE.
“CITY”
CITY OF ANAHEIM
a charter city and municipal corporation
By:
Grace Ruiz-Stepter, Director
Housing and Community Development
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Ryan Hodge
Deputy City Attorney
AUTHORITY:
ANAHEIM HOUSING AUTHORITY, a public
body, corporate and politic
By:
Grace Ruiz-Stepter, Executive Director
APPROVED AS TO FORM:
BEST BEST & KRIEGER
Melissa Crosthwaite, Special Counsel