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HomeMy WebLinkAbout2005 CON CDC Unidev - 1st AmendmentFIRST AMENDMENT TO AGREEMENT BY AND BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF TIIE CITY OF NATIONAL CITY AND UNIDEV, LLC ORIGINAL TIIIS FIRST AMENDMENT (this "Amendment") is entered into as of the 26th day of April, 2005, by and between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (the "CDC"), and UNIDEV, LLC (the "CONTRACTOR"). RECITALS WHEREAS, the CDC and the CONTRACTOR entered into a certain Agreement dated as of March 16, 2004 (the "Agreement") pursuant to which the CDC employed the CONTRACTOR to undertake certain services, as set forth therein, in connection with the preparation of a conceptual land development plan for the CDC's senior village, as further described herein (the "Project"), which is located on certain land owned by the CDC (the "Land") in the City of National City (the "City"); and WHEREAS, pursuant to Section 2 of the Agreement, the CDC now desires to increase the CONTRACTOR's scope of services, as set forth in this Amendment, in connection with the development of the Project, and the CONTRACTOR is willing to perform such additional services. NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING PREMISES AND OTIIER VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES HERETO, FOR TIIEMSELVES AND THEIR SUCCESSORS AND ASSIGNS, DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT. The CDC hereby engages the CONTRACTOR to undertake the Additional Services (as hereinafter defined) in accordance with the terms and conditions set forth herein and in the Agreement. The CONTRACTOR hereby agrees to undertake such Additional Services in accordance with the terms and conditions set forth herein and in the Agreement. 2. ADDITIONAL SERVICES. With respect to the Project, as more specifically described on Rider A attached hereto, the CONTRACTOR agrees to perform the services set forth on Rider B attached hereto (the "Additional Services"). 3. COMPENSATION AND PAYMENT. The compensation for the CONTRACTOR's performance of the Additional Services shall be as set forth on Rider C attached hereto. 4. INSURANCE. Throughout the term of the Agreement, as modified by this Amendment, the CONTRACTOR shall maintain the following insurance from a company or companies lawfully authorized to do business in the City: a. Commercial general liability insurance with a minimum limit of $1,000,000 for bodily injury and property damage per occurrence; b. Workers' compensation insurance that complies with all of the provisions of the Worker's Compensation Insurance and Safety Acts of the state wherein services are to be performed; and c. Professional liability insurance with minimum limits of $1,000,000 per occurrence. 5. MISCELLANEOUS. a. The delay or failure of either party to exercise any of its rights under the Agreement, as modified by this Amendment, for a breach thereof shall not be deemed to be a waiver of such rights, nor shall the same be deemed to be a waiver of any subsequent breach, either of the same provisions or otherwise. No waiver of any of the terms of the Agreement, as modified by this Amendment, or of any breach of its terms shall be effective unless such waiver is in writing and signed by the waiving party. b. The Agreement, as modified by this Amendment, may be terminated immediately by either party hereto for cause in the event of a material breach by the other party of the Agreement, as modified by this Amendment, a material misrepresentation by either party in connection with the formation of the Agreement, as modified by this Amendment, or the failure by the other party to performance any services or undertake any obligations as set forth in the Agreement, as modified by this Amendment. c. The CONTRACTOR agrees to indemnify, defend, and hold harmless the CDC, the City, and their officers, employees and volunteers, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, costs or attorneys' fees, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, in any way resulting from or arising out of the CONTRACTOR's negligence in the performance of the Agreement, as modified by this Amendment. d. The Agreement shall remain in full force and effect, as modified by this Amendment. In the event of any conflict between the provisions of this Amendment and the provisions set forth in the A, >ment, the provisions of this Amendment shall control. The terms of the Agreement, as modified by this Amendment, are severable such that if any term or provision is declared by a court of competent jurisdiction to be illegal, void, or unenforceable, the remainder of the provisions shall continue to be valid and enforceable. e. All provisions in the Agreement, as modified by this Amendment, shall be deemed subject to a standard of reasonableness and to pertain to the work performed by the CONTRACTOR pursuant thereto. 2 f. Each party executing this Amendment represents and warrants to the other that such party (i) has all requisite power and authority to enter into and perform the terms of this Amendment without the consent of any other person or entity whose consent has not been obtained; and (ii) is unaware of any order or requirement of any authority with jurisdiction, or any claim, pending or threatened, that may have a materially adverse effect on the performance of this Amendment. g. Each party to the Agreement, as modified by this Amendment, agrees to cooperate with the other as necessary to permit the other to carry out the obligations and intentions of the Agreement, as modified by this Amendment. h. All actions or claims against either CDC or the CONTRACTOR arising under or relating to the Agreement, as modified by the Amendment, shall be made only against such party as a corporation or other legal entity, and any liability relating thereto shall be enforceable only against the corporate assets of such party. IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date and year first above written. COMMUNITY DEVELOPMENT COMMISSION UMDEV, LLC OF THE CITY OF NATIONAL CITY By: Nick Inz Chairman WITNESS/ATTEST: By: By: Benjamin Martinez Secretary APPROVED AS TO FORM: George II. Eiser, III, Legal Counsel Jef ey inter Execute Vice President WITNESS/ATTEST: Ste ve4.1 Lcim Q ss-s-,,;,,„f ?Avid McA, 1 e 3 ' RIDER A — PROJECT The parties to this Amendment agree that the Project that is the subject of the Agrecment, as modified by this Amendment, is more fully described as follows: • The Project will include approximately 800 units of affordable rental and/or for - sale senior housing, a senior recreational facility (fitness/crafts), and a Town Square with specialized retail offerings. The Project will also include the renovation of 300 existing affordable rental units and the replacement of the existing Nutrition and Senior Community Centers. • The units will be designed to be affordable to a range of income levels. The intended primary market for the units will be very -low to moderate income senior citizens. The Project will likely include attached and semi -attached products. • The operational program does not require the provision of any direct cash subsidies by the CDC, or the City. However, the CDC may choose, at its sole discretion, to utilize funds generated by the Project to increase the affordability of certain program options. The CDC will ground lease the Land to a nonprofit entity that will in turn sub -ground lease the applicable portions of the Land to homebuyers, or, if the CDC elects not to create a nonprofit entity, the CDC will directly lease applicable portions of the Land to homebuyers. 4 RIDER B — ADDITIONAI. SERVICES This Rider B may be changed from time to time by written amendment to the Agreement, as modified by this Amendment. All references to the CDC shall include a Working Group (as hereinafter defined) established by the CDC and any development entity created or approved by the CDC to undertake the Project. In the event that, within four (4) months after the date of this Amendment, the Project has not been approved for predevelopment funding by Fannie Mae or another financing entity (as discussed in Rider C hereto), the CDC may elect to cause all work pursuant to this Amendment to be ceased by giving notice thereof to the CONTRACTOR. PHASE IA — PREDEVELOPMENT SERVICES During Phase IA, CONTRACTOR shall perform all Predevelopment Services as described herein. Such Predevelopment Services shall be in reference to the Conceptual Development Plan previously prepared by CONTRACTOR and provided to the CDC, which shall include without limitation the following services: 1.1 Overview 1.1.1. Form a committee (the "Working Group") and/or non-profit development corporation (the "Nonprofit") to consider issues and make decisions regarding the planning for and development of the Project. 1.1.2. Assist the CDC in the preparation of a master ground lease of the Land to the nonprofit entity that will in turn sub -ground lease the applicable portions of the Land to homebuyers, or, if the CDC elects not to create the Nonprofit, assist the CDC in the preparation of the direct ground lease to applicable portions of the Land to homebuyers. 1.1.3. Assist the CDC or the Nonprofit in obtaining predevelopment financing, secured by the Land and/or the ground lease, as applicable, in an amount sufficient to cover all fces and expenses included in the Phase IB Predevelopment Budget. Both parties hereto shall use their best efforts to insure that appropriate funding mechanisms are in place for the Project's financing to fully compensate all members of the development team in accordance with Rider C. 1.1.4. Prepare an Assisted Living Market Analysis to supplement the Senior Housing Market Analysis prepared in connection with the Conceptual Development Plan. 1.1.5. Assist the CDC in planning for and negotiating with various governmental and public agencies regarding acquisition and development opportunities for the Project. 5 RIDER C — COMPENSATION 1. Phase IA Compensation. During Phase IA, the CONTRACTOR shall be compensated for performing the Additional Services applicable to this phase (as set forth in Rider B) as follows and subject to the Phase IA Budget as set forth within the Predevelopment Budget attached as Exhibit 1 (the "Predevelopment Budget"). a. Amount. The CONTRACTOR shall receive a monthly payment equal to Fifteen Thousand and No/100 Dollars ($15,000.00) (the "Monthly Payments") for performing its Additional Services for the Project, but in no event greater than $60,000 in the aggregate. In addition to the Monthly Payments, the CONTRACTOR shall be reimbursed for its Reimbursable Costs (as hereinafter defined). For purposes of the Agreement, as modified by this Amendment, "Reimbursable Costs" shall mean actual, out-of-pocket costs of all reasonable travel, subsistence and business expenses (including photocopying, telephone, and similar types of costs) necessary for the performance of the Services or Additional Services pursuant to the Agreement, as modified by this Amendment, including any fees or expenses of any consultants engaged by the CONTRACTOR on behalf of the CDC to assist in the performance of the Services or Additional Services or to perform other services on behalf of the CDC, as set forth in the Phase IA Predevelopment Budget. b. Payment. The CONTRACTOR shall submit invoices in arrears on a monthly basis, within ten (10) business days after the end of each month, for the Monthly Payments and any Reimbursable Costs payable with respcct to the previous month. Each invoice shall be payable within ten (10) business days after receipt and approval thereof. c. Source. The CDC shall be responsible for making all Monthly Payments and Reimbursable Costs due to CONTRACTOR and/or any consultants with respect to Phase IA services. The Monthly Payments and Reimbursable Costs shall be reimbursable to the CDC from predevelopment funding provided to the Project by Fannie Mae or another financing entity. The CONTRACTOR and the CDC shall use their best efforts to insure that appropriate predevelopment funding mechanisms are in place to fully reimburse the CDC and to thereafter compensate all members of the development team in the manner set herein. In the event that such predevelopment funding is not obtained within four (4) months after the date of this Amendment and the CDC elects to cause the CONTRACTOR to cease all work pursuant to this Amendment, then in such event, all fees and expenses — including previously submitted invoices and a final invoice submitted upon notice of such stop work order — shall immediately become due and payable to the CONTRACTOR and/or other members of the development team, and the CDC shall be responsible for payment therefor. 6 In the event that the Project proceeds through Phase IA but does not proceed to Phase IB for any reason, then upon such determination by the parties hereto, all Monthly Payments and Reimbursable Costs previously paid or then due to the CONTRACTOR and/or other members of the development team shall be deemed to have been fully earned, and the CDC shall be responsible for payment therefor. 7 , EXHIBIT 1 Predevelopment Budget Phase IA Senior Housing Consultants' 10,000 Community Outreach Consultants' 10,000 Legal Fees National Real Estate (Non -Profit Setup) 20,000 Local Counsel (Ground Lease) 20,000 Market Research 35,000 CONTRACTOR's Phase IA Fees 60,000 CONTRACTOR's estimated expenses 10,000 Phase IA Total $165,000 Phase IB Land Planning 125,000 Architectural Plans 650,000 Engineering Plans 250,000 (remainder paid from infrastructure financing) Landscape Architecture 50,000 Senior housing Consultants 70,000 Community Outreach Consultants 40,000 Legal Fees National Real Estate 64,000 National Tax Credit Counsel 70,000 (remainder paid from bond financing) Local Counsel 55,000 (remainder paid from bond financing) Green Development/Energy Use Consultants EIR Consultant 1 Depending on timing, thcse services may not be required during Phase IA. 50,000 80,000 8 i•,, '1 Traffic Engineering Studies 50,000 CONTRACTOR's Phase IB Fees (10 Mos. X $30,000) 300,000 CONTRACTOR's estimated expenses 40,000 Repayment to the CDC of Consulting Fees 70,000 Phase 1B Total $1,964,000 Contingency (10%) $199,900 TOTAL $2,163,900 9