1 COOPERATION AGREEMENT
(TAMPICO MOTEL CONVERSION)
This COOPERATION AGREEMENT (TAMPICO MOTEL CONVERSION)
(“Cooperation Agreement”) dated as of __________, 2024 (“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 California 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 -ARP Funds”) from HUD pursuant to 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” at 24 CFR Part 92 (Complete Rule) http://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title24/24cfr92_main_02.tpl and CPD 21-10 (together, “HOME-ARP Program”).
B. The HOME Investment Partnership American Rescue Plan Program (“HOME-ARP”) has, among its purposes, the strengthening of public -private partnerships to provide more affordable housing, and particularly to provide decent, safe, sanitary, and affordable housing, with primary attention to housing for very low income and lower income households in accordance with the HOME-ARP Program. The HOME -ARP Funds are used by the City, as a participating jurisdiction, to carry out multi-year housing strategies through acquisition, rehabilitation, and new construction of housing for target income persons and families.
C. In July 2019, the State of California established the Homeless Housing, Assistance, and Preventing Program ("HHAP") pursuant to Chapter 159 of Assembly Bill No. 101 ( 2018 - 2019 Reg. Sess.), which is administered by the California Homeless Coordinating and Financing Council ("HCFC") in the Business, Consumer Services and Housing Agency ("BCSH"), and provides flexible block grant funds to support local jurisdictions provide a unified regional response to reduce and end homelessness. The State of California has designated certain Homeless Housing, Assistance and Prevention ("HHAP") funds to programs which provide a unified regional response to reduce and end homelessness.
D. CalOptima is a public agency formed pursuant to California Welfare and Institutions Code Section 14087.54 and Orange County Ordinance No. 3896, as amended. CalOptima's mission is to serve member health with excellence and dignity, respecting the value and needs of each person.
CalOptima Health has designated certain Board -approved Homeless Health Care Initiative funds to fund Homeless and Housing Incentive Program ("HHIP") projects. CalOptima finds that the grant project is a community program that supports and is compatible with CalOptima's mission and desires to assist grantee in undertaking its project by providing financial support in accordance with CalOptima's policies and procedures.
E. 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”).
2 F. In April 2023, Authority acquired an approximately 0.51 -acre parcel, home of the former Tampico Motel, located at 120 S. State College Boulevard (“Site”). Funds for the acquisition of the site derived from the State’s General Fund, secured by the Office of California Senator Tom Umberg to acquire, and convert the motel into permanent supportive housing. The site was acquired with the intention of developing affordable housing under the City’s Residential Use of Motels, Office, and Commercial Structures Ordinance (Anaheim Municipal Code section 18.38.215) adopted in 2019.
G. The Site is currently vacant with two buildings on the Site and is commonly referred to as the “Tampico Motel”.
H. Authority has considered and approved that certain letter: “Preliminary Award Letter regarding Certain Financial Assistance by the Anaheim Housing Authority, Including Loan (s) and/or Grant(s) Sourced, in whole or in part from, HOME-ARP Program, CalOptima HHIP, HHAP, and/or Housing Asset Funds, Section 8 PBVs, and Additional Subsidies, for the Proposed Construction and Operation of a New Affordable Rental Housing Project ( 32 Units) on a n approximately 0.51-Acre Site Located at 120 S. State College Boulevard , Anaheim, California” dated as of August 13, 2024 (“Award Letter”) by which certain “ Authority Assistance” will be provided to Jamboree Housing Corporation, a California nonprofit public benefit corporation (“JHC” or “Developer”) as a financial subsidy to the proposed Project.
I. All capitalized terms used in this Cooperation Agreement are as defined in the Award Letter unless otherwise defined herein.
J. Developer desires and intends to redevelop the Site by constructing, operating, managing and maintaining a 32-unit affordable housing project with ancillary amenities and improvements for tenancy and occupancy by income -eligible, qualified households at an affordable rent (“Project”), as more fully described in the Award Letter.
K. All or a portion of the approximately $6,900,000 of HOME-ARP Funds, HHIP, and HHAP funds that are the subject of the Award Letter, by which letter such sum was preliminarily awarded to JHC for the Project, are to be invested in the Project that will be leased, developed or sponsored by the Developer, with the sole managing general partner of that entity being JHC.
L. Under the Award Letter, the Authority Loan by Authority to Developer of approximately $4,469,386.25 will be sourced in whole or in part from the City’s HOME-ARP Funds or HHIP funds and approximately $2,430,613.75 will be granted to JHC from the City’s HHAP funds for the Project , and in connection with JHC’s application for an award of Tax Credits by TCAC, provided however the Award Letter does not in any manner make a “commitment” of HOME-ARP Funds under the HOME Program Regulations, in particular there is no commitment under Section 92.2 and CPD 21-10 thereof.
M. Authority and the City (each, a “Party” and together, the “Parties”) desire to assist with the Project. To this end, the City desires to make available and transfer to the Authority by this Cooperation Agreement approximately $6,900,000 of HOME-ARP Funds, HHIP funds, and/or HHAP funds to enable the Authority to provide and fund the Authority Loan and / or Grant to the Developer under and subject to all terms and conditions of the Award Letter. If JHC receives an award of Tax Credits from TCAC and proceeds with the Project, then the Authority and the Developer intend to negotiate the Affordable Housing Agreement defined in and contemplated by the 3 Award Letter, which will set forth the specific terms and conditions under which the Authority will make the Authority Loan and/or Grant for the Project and commit the funds to JHC upon satisfaction of Section 92.2 of the HOME Program Regulations, as well as provide the other components of the Authority Assistance.
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 $6,900,000 of HOME-ARP Funds, CalOptima funds, and /or HHAP funds (“Project Funds”) held by the City to enable the Authority to make the Authority Loan and /or Grant to the Developer for the Project subject to the award of Tax Credits and other conditions precedent set forth in the Award Letter, and subsequently as set forth in the Affordable Housing Agreement .
Subject to negotiation, preparation, consideration and approval of the Affordable Housing Agreement and satisfaction of the conditions precedent therein, City shall make the Project Funds available to the Authority for the Project. Authority shall not disburse the Project Funds to the Developer until the Authority has confirmed that the Developer has satisfied all of the Conditions Precedent to the disbursement of the Authority Loan and/or Grant pursuant to Award Letter, and thereafter the Affordable Housing Agreement; provided that the Authority Executive Director may waive, defer or modify such Conditions Precedent in accordance with the authority granted by the Authority under the Award Letter.
(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 and CPD 21 -10; and, (ii) to implement the Affordable Housing Agreement in order to expand the supply of decent, safe, sanitary and affo rdable housing for young adults ages 18 to 24 who are exiting the foster care system or are experiencing , or at risk of experiencing homelessness.
(b) This Cooperation Agreement does not constitute a “commitment” of HOME - ARP Funds, as the term “commitment” is defined in 24 CFR 92.2 ; provided however, under the Affordable Housing Agreement, at closing of Developer’s construction financing and satisfaction of all applicable Conditions Precedent, then such HOME-ARP Funds are intended to be committed to the Developer for the Project.
(c) Authority may elect to use Eligible City Transfer Funds sourced from any of Housing Asset Funds , HHAP, HOME Program, HOME -ARP Program , CalOptima HHIP or other governmental funding sources to fund all or portion or combination thereof to fund the Authority Loan and / or Grant, as delegated to and determined in the sole discretion of the Director. (d) Each City funding source of Eligible City Transfer Funds will meet program requirements because the Award Letter and Affordable Housing Agreement require that Extremely Low Income Households comprised of tenants who qualify as young adults ages 18 to 24 who are exiting the foster care system or are experiencing, or at risk of experiencing homelessness will occupy 31 Housing Units and the Affordability Period is 55 ye ars, which term equals or exceeds the minimum compliance period for affordable housing projects funded from LMIHAF, HOME 4 Program, HOME-ARP, PLHA, and/or HHAP funds. In this regard, Affordable Rent for Extremely Low Income Households as tenants at the Project will all comply with such program requirements.
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 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 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. TERMINATION. If JHC does not receive an allocation of Tax Credits or if the Affordable Housing Agreement is not hereafter entered into and implemented, then this Cooperation Agreement shall also be terminated and neither Party shall have any obligation to the other as a result of this Cooperation Agreement.
Section 5. 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 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 5 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 6. 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 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 7. 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 brings 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. 6 (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.
(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.
[signature blocks for Cooperation Agreement on next page] 7 IN WITNESS , THE PARTIES HAVE EXECUTED T HIS COOPERATION
AGREEMENT (TAMPICO MOTEL CONVERSION) AS OF THE EFFECTIVE DATE IN THE FIRST PARAGRAPH ABOVE.
“CITY”
CITY OF ANAHEIM
a charter city and California municipal corporation
Dated:
Director, Housing and
Community Development Department
ATTEST:
THERESA BASS, CITY CLERK
Theresa Bass
APPROVED AS TO FORM:
CITY ATTORNEY
Ryan O. Hodge, Deputy City Attorney
or Authorized Designee
8 “AUTHORITY”
ANAHEIM HOUSING AUTHORITY, a public
body, corporate and politic
Dated: _______________ By:
Executive Director
ATTEST:
THERESA BASS, AUTHORITY SECRETARY
Theresa Bass
APPROVED AS TO FORM:
CITY ATTORNEY
Ryan O. Hodge, Deputy City Attorney
or Authorized Designee