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HomeMy WebLinkAbout2011 CON CDC Community Housing Works - Affordable Housing Project Hoover AveGRANT AGREEMENT [Transit -Oriented Infill Affordable Housing and Paradise Creek Enhancement Project] THIS GRANT AGREEMENT, dated as of June 21, 2011 for identification purposes only (the "Grant Agreement"), is made and entered into by and between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY ("Commission"), a public body, corporate and politic (the "Commission"), and COMMUNITY HOUSINGWORKS, a California non-profit, public benefit corporation (hereinafter "CHW"), with reference to the following: RECITALS A. WHEREAS, Commission is a California community development commission, acting pursuant to the Community Redevelopment Law, to increase the supply of housing affordable to persons and families of very low, low and moderate -income in the community; B. WHEREAS, CHW is a California nonprofit, public benefit corporation whose purposes include development and operation of such affordable housing in, among other areas, the County of San Diego; C. WHERAS, Commission, at the same meeting of its Board as it considers approval of this Grant Agreement, expects to enter into that certain "Disposition and Development Agreement," dated as of even date herewith with Paradise Creek Housing Partners, L.P. (the "Developer"); D. WHEREAS, pursuant to the DDA and as more particularly provided therein, Developer will construct, in two (2) Phases, the Project on the Site, including, without limitation, a total of two hundred one (201) affordable rental housing units, certain community facilities for the use of the residents of both Phase I and Phase II, and certain offsite improvements including, without limitation, (i) improvement of the Paradise Creek Parcel, and (b) improvement and expansion, for the benefit of the entire community, of Paradise Creek Educational Park; E. WHEREAS, Commission holds, within its Low and Moderate -Income Housing Fund, the sum of Fourteen Million Nine Hundred Fifty -Seven Thousand Dollars ($14,957,000) to be used to finance development of affordable housing projects such as the Project (the "Funds"); F. WHEREAS, the Funds are proceeds of that certain "$39,660,000 Community Development Commission of the City of National City (San Diego County, California) (National City Redevelopment Project) 2011 Tax Allocation Bonds;" G. WHEREAS, Commission desires also to foster the development of private nonprofit, community -based, service organizations with the capacity to develop and/or finance affordable housing projects in National City such as the Project; and H. WHEREAS, accordingly, Commission, on the terms and conditions set forth in this Grant Agreement, intends to grant the sum of Fourteen Million Nine Hundred Fifty -Seven Thousand Dollars ($14,957,000 to CHW for the dual purpose of permitting CHW to provide part of the financing for Phase I of the Project and to build CHW's capacity to participate in the development of future affordable housing projects in the community. NOW, THEREFORE, for and in consideration of the mutual promises, covenants, and conditions herein contained, Commission and CHW agree as follows: 1. DEFINITIONS AND INTERPRETATION 1.1 Defined Terms. Capitalized words and terms used in this Grant Agreement and not defined in this Grant Agreement (including, without limitation, in the Recitals above) shall have the meanings ascribed thereto in the DDA. Other capitalized words and terms used in this Grant Agreement shall have the meanings ascribed thereto where first used or as set forth in this Section [1.1]. Capitalized terms used in an exhibit attached hereto and not defined therein shall also have the meanings set forth in this Section [1.1]. "CHW Third Trust Deed Loan Note" means the promissory note to be made by Developer to evidence the CHW Third Trust Deed Loan. "DDA" shall mean that certain Disposition and Development Agreement, dated as of June 21, 2011, by and between Commission and Developer, as such document may be amended and implemented by the parties thereto. "Grant for Phase I" has the meaning set forth in Section [5.1] of this Grant Agreement. 1.2 Singular and Plural Terms. Any defined term used in the plural in this Grant Agreement shall refer to all members of the relevant class and any defined term used in the singular shall refer to any number of the members of the relevant class. 1.3 Accounting Principles. Any accounting term used and not specifically defined in this Grant Agreement shall be construed in conformity with, and all financial data required to be submitted under this Grant Agreement shall be prepared in conformity with, generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to Commission. 1.4 References and Other Terms. References herein to Articles, Sections and Exhibits shall be construed as references to this Grant Agreement unless a different document is named. References to subparagraphs shall be construed as references to the same Section in which the reference appears. The terms "including" and "include" mean "including (include) without limitation". Page 2 of 12 G\ RPegiv ratts June o, 201'Ipm\Granexg2gReFiw 6.6811Pugs Works Yard\City of National City\DDA\Drafts from City\DDA 1.5 Exhibits Incorporated. All attachments to this Grant Agreement, as now existing and as the same may from time to time be modified, are incorporated herein by this reference. 2. PARTIES 2.1 Commission. Commission is the Community Development Commission of the City of National City and any successor to its rights, powers and responsibilities. The principal offices of Commission are located at 1243 National City Boulevard, National City, California 91950. 2.2 CHW. CHW is Community HousingWorks, a California nonprofit, public benefit corporation. The principal offices of CHW are located at 4305 University Avenue, Suite 550, San Diego, California, 92105. 3. CONDITION PRECEDENT TO EFFECTIVENESS It shall be a condition precedent to the effectiveness of this Grant Agreement that the DDA be approved by Commission not later than June 21, 2011, and go into force and effect. 4. COMMISSION RIGHT TO TERMINATE If the DDA terminates prior to the Close of Escrow for Phase I, then Commission, in addition to any and all other rights it may have to terminate this Grant Agreement, shall have the right to terminate this Grant Agreement by notice to CHW. 5 GRANT 5.1 Amount and Purpose. Subject to the terms and conditions of this Grant Agreement, Commission agrees to make a grant to CHW for Phase I (the "Grant for Phase I") in the amount of Fourteen Million Nine Hundred Fifty -Seven Thousand Dollars ($14,957,000 to be used for the sole purpose of CHW making the CHW Third Trust Deed Loan for Phase I to Developer. 5.2 Conditions to Grant for Phase I. Commission's obligation to make and disburse the Grant for Phase I shall be subject to satisfaction of the following conditions precedent: (a) Loan Agreement. CHW, as lender, and Developer, as borrower, enter into a loan agreement, approved by the Executive Director (including, without limitation, all underlying loan documents), pursuant to which CHW uses the Grant for Phase I proceeds for the purpose of making the CHW Third Trust Deed Loan to Developer on terms and conditions consistent with the DDA (the "CHW Third Trust Deed Loan Agreement"). Among Page 3 of 12 cU JTiuratts June 6,-2611,1pmaG anoPAgre en?v-6.6811 sublic Works Yard\City of National City\DDA\Drafts from City\DDA other things, the CHW Third Trust Deed Loan Agreement shall provide that neither it, nor any of its underlying documents (including, without limitation, the promissory note evidencing and/or the deed of trust securing the CHW Third Trust Deed Loan) may be amended, modified or rescinded without the prior written approval of the Executive Director, which approval shall not be unreasonably withheld. (b) Close of Escrow for Phase I. Escrow. for Phase 1 must close concurrently. (c) Disbursement Agreement. CHW, the Phase I Construction Lender and Commission have entered into an agreement for disbursement of the Grant for Phase I substantially similar to the Construction Lender/Commission Disbursement Agreement for Phase I and such agreement has been approved by Developer and the Tax Credit Partner for Phase I. (d) Insurance. Commission has received satisfactory evidence that the insurance required pursuant to Article [9] of the Ground Lease for Phase I is in full force and effect. (e) Representations and Warranties. The representations of CHW contained in this Grant Agreement shall be correct in all material respects as of the Close of Escrow for Phase I as though made on and as of that date and, if requested by the Executive Director, Commission shall have received a certificate to that effect signed by CHW. (f) No Default. No default by CHW under this Grant Agreement shall then exist, and no event shall then exist which, with the giving of notice or the passage of time or both, would constitute such a default by CHW and, if requested by the Executive Director, Commission shall have received a certificate to that effect signed by CHW. 5.3 Disbursement of Grant for Phase I. The Grant for Phase I shall, subject to the terms and conditions of this Grant Agreement, be deposited into the Phase I Escrowin time to permit the close thereof and shall be disbursed therefrom at Close of the Phase I Escrow (a) to pay closing costs and expenses shown on the closing statement for the Phase I Escrow, and (b) to the Construction Lender for Phase I for deposit into a construction account from which disbursements shall be made periodically by the Construction Lender only to pay Phase I Project Costs in accordance with the Final Project Budget for Phase I. 6. PROGRAM INCOME 6.1 Defined. For the purposes of this Grant Agreement, "Program Income" shall mean all funds collected by CHW in repayment of the CHW Third Trust Deed Loan. Page 4 of 12 ggikrec01450Evligi6913IY,TMSTRI Ci \RF9 6.S811PUdo8 Works Yard\City of National City\DDA\Drafts from City\DDA 6.2 Use of Program Income. CHW shall use the Program Income to fund social and educational programming and activities for the benefit of the Project, its residents and the residents of the community of which the Project is a part (the "Paradise Creek -Related Programs and Activities"). Such programs and activities could include, without limitation: (a) resident and/or community -based cleanup efforts in and around the Project, including, without limitation, in and around the Paradise Creek Parcel and/or Paradise Creek Education Park; provided, however, such efforts may not include routine and/or regular maintenance of such property; (b) youth environmental education programming; (c) job corps -type training programs; (d) as matching funds for individual development accounts to assist people of modest means save for the purchase of a lifelong asset, such as a home; or to obtain education and/or job training; and education and coaching programs related to personal finance and credit management; (e) to make first-time homebuyer down payment loans and related homebuyer education and coaching programs; and/or (f) other activities as approved in advance by the Executive Director. 6.3 Submission of Annual Plan. Not later than thirty (30) days after first receipt by CHW of Program Income and every year thereafter for which CHW receives any Program Income, CHW shall submit to the Executive Director for approval (which approval shall not be unreasonably withheld) a plan and budget for the Paradise Creek -Related Programs and Activities that CHW proposes to fund and operate over the ensuing one (1)-year period (the "Annual Plan"). That notwithstanding, the Executive Director shall be under no obligation to allow use of the Program Income to fund programs and activities otherwise obligated to be provided by the Tenant under the Ground Lease for Phase I. Additionally, if the Program Income received by CHW for any year or succession of years is insufficient to fund and operate any meaningful Paradise Creek -Related Programs and Activities for the ensuing year, CHW may, with the written consent of the Executive Director (which consent shall not be unreasonably withheld) accumulate funds until sufficient by holding such funds (unless de minimis) in an interest -bearing account, with such interest to become Program Income. 6.4 Implementation of Annual Plan. Promptly after approval of any Annual Plan, CHW shall implement that Annual Plan. Page 5 of 12 aiffliAci43 ans June 6, 1u11'll,0a t, gree ent v 6.11 s aoc Works Yard\City of National City\DDA\Drafts from City\DDA 6.5 Acknowledgment of City. Any and all Paradise Creek -Related Programs and Activates printed and/or digital materials, including signage, shall acknowledge, in a manner reasonably satisfactory to the Executive Director, the contribution of the City of National City to the funding of the subject program and/or activity. 6.6 Enforcement of CHW Third Trust Deed Loan Note. in order to reasonably maximize Program Income, CHW shall reasonably enforce payment of the CHW Third Trust Deed Loan Note. 7. GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS 7.1 CHW's Formation, Qualification and Compliance. CHW (a) is validly existing and in good standing under the laws of the State of California, (b) has all requisite authority to conduct its business, and has all requisite authority to execute and perform its obligations under this Grant Agreement. 7.2 Litigation. CHW represents and warrants that there are no material actions, lawsuits or proceedings pending or, to the best of CHW's knowledge, threatened against or affecting CHW, the adverse outcome of which could have a material adverse affect on CHW's ability to perform its obligations under this Grant Agreement. 8. RETENTION OF RECORDS CHW shall maintain all books, documents, papers, accounting records, and other evidence pertaining to this Grant Agreement and shall make such materials available at its office at all reasonable times during the term of this Grant Agreement and for three (3) years from the date of Close of Escrow for Phase I for inspection by Commission and for furnishing of copies to Commission, if requested. 9. INDEPENDENT CONTRACTOR Both parties hereto in the performance of this Grant Agreement will be acting in an independent capacity and not as agents, employees, partners or joint venturers with one another. Neither CHW nor CHW's employees are employees of Commission and are not entitled to any of the rights, benefits, or privileges of Commission's employees, including but not limited to retirement, medical, unemployment, or workers' compensation insurance. 10. CONTROL Neither Commission nor its officers, agents or employees shall have any control over the conduct of CHW or any of CHW's employees except as herein set forth, and CHW expressly agrees not to represent that CHW or CHW's agents, servants, or employees are in any Page 6 of 12 bymikebsiviii3psiEyurut,s1Ritylitamircr I Ciiymen v2 811Pu22 Works Yard\City of National CitylDDA\Drafts from City1DDA manner agents, servants or employees of Commission, it being understood that CHW, its agents, servants, and employees are as to Commission wholly independent contractors and that CHW's obligations to Commission are solely such as are prescribed by this Grant Agreement. 11. COMPLIANCE WITH APPLICABLE LAW CHW, in the performance of this Grant Agreement, shall comply with all applicable State and Federal statutes and regulations, and all applicable ordinances of the City of National City, whether now in force or subsequently enacted. CHW, and each of its subcontractors, shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Grant Agreement. 12. NON-DISCRIMINATION PROVISIONS In the performance of this Agreement, CHW shall: (a) not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition; and (b) take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. 13. INDEMNIFICATION AND HOLD HARMLESS CHW agrees to defend, indeuinify, and hold harmless Commission and the City of National City, and their officers and employees, 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, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of CHW's negligent performance of this Grant Agreement. 14. INSURANCE CHW, at its sole cost and expense, shall purchase and maintain, and shall require its contractors, if any, to purchase and maintain, until issuance of the Certificate of Completion for Phase I, the following insurance policies: A. Automobile insurance covering all bodily injury and property damage incurred during the performance of this Grant Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). Page 7 of 12 ctJ TJT�Drafts W e 6, 2Ditipm\G anoi,ig egme ,,286811sloc Works Yard\City of National City\DDA\Drafts from City\DDA B. Commercial general liability insurance, with minimum limits of $1,000,000 per occurrence/ $2,000,000 aggregate, covering all bodily injury and property damage arising out of its operations under this Grant Agreement. C. Workers' compensation insurance in an amount sufficient to meet statutory requirements covering all of CHW employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of Commission. Said endorsement shall be provided prior to commencement of work under this Grant Agreement. D. The aforesaid policies shall constitute primary insurance as to Commission, its officers, employees, and volunteers, so that any other policies held by Commission shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to Commission of cancellation or material change. E. Said policies, except for the professional liability and workers' compensation policies, shall name Commission and the City of National City, and their officers, agents and employees as additional insureds, and separate additional insured endorsements shall be provided. F. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, CHW shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Grant Agreement. In addition, the "retro" date must be on or before the date of this Grant Agreement. G. Any aggregate insurance limits must apply solely to this Grant Agreement. H. Insurance shall be written with only California admitted companies which hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by Commission's Risk Manager. In the event coverage is provided by non - admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. I. This Grant Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by Commission's Risk Manager. If CHW does not keep all of such insurance policies in full force and effect at all times required under this Grant Agreement, Commission may elect to treat the failure to maintain the requisite insurance as a breach of this Grant Agreement and, subject to the right to notice and cure set forth in Section [17.A], terminate this Grant Agreement as provided herein. Page 8 of 12 GIJfiljAT1MW Ju a AS BIY pm\Gation,?gre� eF v:6 8.11 sudoc Works Yard\City of National City\DDA\Drafts from City\DDA J. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by Commission. 15. LEGAL FEES If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Grant Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of -court settlement, shall be entitled to have and recover of and from the other party all reasonable costs and expenses of suit, including reasonable attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. 16. MEDIATION/ARBITRATION If a dispute arises out of or relates to this Grant Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Grant Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. 17. TERMINATION A. This Grant Agreement may be terminated by Commission for cause in the event of a material breach of this Grant Agreement and failure by CHW to cure such breach within thirty (30) days after the giving of notice by Commission. If, however, by its nature the failure cannot reasonably be cured within thirty (30) days, CHW may have such longer period of time as is reasonably necessary to cure the failure, provided, however, that CHW commence said cure within said thirty (30)-day period, and thereafter diligently prosecute said cure to completion within one hundred eighty (180) days. B. Termination with cause shall be effected by delivery of written Notice of Termination to CHW as provided for herein. Page 9 of 12 b\ i ts\F Ju e etliiiIT \Gannon I Ci \AFA 6.6811PNE Works Yard\City of National City\DDA\Drafts from City\DDA 18. NOTICES All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To the Commission: To CHW: Community Development Commission of the City of National City 1243 National City Blvd. National City, California 91950 Attn: Executive Director Community HousingWorks 4305 University Ave, Suite 550 San Diego, California 92105 Attn: Anne B. Wilson Sr. VP of Housing & Real Estate Development Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-eight (48) hours by letter mailed or delivered as specified in this Section. 19. MISCELLANEOUS PROVISIONS A. Computation of Time Periods. If any date or time period provided for in this Grant Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state or legal holiday. Page 10 of 12 b\ lJratts June 6,v0I'lipmmioonRga eFTAl 811Pugg Works Yard\City of National City\DDA\Drafts from City\DDA B. Counterparts. This Grant Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Grant Agreement are solely for the convenience of the parties hereto, are not a part of this Grant Agreement, and shall not be used for the interpretation or determination of the validity of this Grant Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Grant Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this Grant Agreement. The terms of this Grant Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Grant Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This Grant Agreement shall be governed by and construed in accordance with the laws of the State of California. I. Entire Agreement. This Grant Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. J. Successors and Assigns. This Grant Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. K. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Grant Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Grant Agreement, (iv) each party and such party's counsel and advisors have reviewed this Grant Page 11 of 12 bfr8ttN I tratts Juge Ei, 1RWI \Graniagre L9,, ti. .11Publoc Works Yard\City of National City\DDA\Drafts from City\DDA IN WITNESS WHEREOF, the parties hereto have executed this Grant Agreement on the date and year first above written. COMMUNITY HOUSINGWORKS, a California nonprofit, public benefit corporation By: Its: COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public body, corporate and politic By: Its: APPROVED AS TO FORM: LAW OFFICES OF LANCE E. GARBER, Commission Special Counsel B Y � Lance E. Garber Page 12 of 12 C:\Data\LEG\NC-372.TOD Project\CHW Grant Agreement\Grant Agreement v.6.6.11.s.x.doc Agreement, (v) each party has agreed to enter into this Grant Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Grant Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parties hereto have executed this Grant Agreement on the date and year first above written. APPROVED AS TO FORM: LAW OFFICES OF LANCE E. GARBER, Commission Special Counsel By: COMMUNI nonprofit, By: HOUSINGWORKS, a California c benefit c • -: oration Its: = . (LICE P/Lt-SI. L:.u7--' COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public body, co • - and politic By: Lance E. Garber Its: ,fill . A ••+A....) Page 12 of 12 I f i l ills\Ns u e 6, 2t)11 pm,Gaanotnal itv\RF ' 2Or.11 suboiE Works Yard\City of National City\DDA\Drafts from City\DDA RESOLUTION NO. 2011 — 135 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY APPROVING A GRANT AGREEMENT BY AND BETWEEN COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND COMMUNITY HOUSING WORKS PROVIDING A GRANT OF $14,957,000 TO COMMUNITY HOUSING WORKS TO ASSIST DEVELOPMENT OF PHASE I OF AN INFILL AFFORDABLE HOUSING PROJECT, PUBLIC FACILITIES, OPEN SPACES AND COMMUNITY SERVICES ON 12.75 ACRES KNOWN AS THE NATIONAL CITY PUBLIC WORKS CENTER AND FORMER ILLES FAMILY TRUST SITE WHEREAS, as the result of a competitive request for qualifications process, on March 3, 2009, a partnership of Related Companies of California and Community Housing Works was selected to work exclusively with the Community Development Commission of the City of National City ("CDC") to plan for an infill affordable housing project adjacent to Paradise Creek between 18th and 22nd Streets; and WHEREAS, Related Companies of California and Community Housing Works formed a limited partnership known as Paradise Creek Partners, LP, to complete the Infill Affordable Housing Project (the "Project") described in the Westside Specific Plan; and WHEREAS, the CDC has approved a Disposition and Development Agreement with the partnership now called Paradise Creek Housing Partners, LP, for the Project that provides $14,957,000 to the Project in 2011 Tax Allocation Bonds; and WHEREAS, the CDC holds, within its Low and Moderate -Income Housing Fund, the sum of Fourteen Million Nine Hundred Fifty -Seven Thousand Dollars ($14,957,000) to be used to finance development of affordable housing projects such as the Project (the "Funds"); and WHEREAS, the Funds are proceeds of that certain "$39,660,000 Community Development Community Development Commission of the City of National City (San Diego County, California) (National City Redevelopment Project) 2011 Tax Allocation Bonds"; and WHEREAS, the CDC desires to also foster the development of private nonprofit, community -based, service organizations with the capacity to develop and/or finance affordable housing projects in National City such as the Project; and WHEREAS, accordingly, the CDC, on the terms and conditions set forth in the Grant Agreement, intends to grant the sum of Fourteen Million Nine Hundred Fifty -Seven Thousand Dollars ($14,957,000) to Community Housing Works for the dual purpose of permitting Community Housing Works to provide part of the financing for Phase 1 of the Project, and to build Community Housing Works capacity to participate in the development of future affordable housing projects in the community; and WHEREAS, Community Housing Works is a 501 (c) 3 non-profit corporation eligible to receive a grant of tax-exempt bond funds, and has agreed to fund the project assistance loan through a dedicated escrow account for that purpose; and Resolution No. 2011 — 135 Page Two WHEREAS, Community Housing Works has pledged to use repayment of the grant funds for programs annually approved by the Executive Director including: 1. Resident and community -based clean-up efforts within the project; 2. Youth environmental education programming; 3. Jobs -corps type training; 4. To create a matching fund for project residents saving for home ownership; and 5. To create a first time homebuyer program for project residents. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City hereby approves a Grant Agreement by and between the Community Development Commission of the City of National City and Community Housing Works providing a grant of $14,957,000 to Community Housing Works to assist development of Phase I of an infill affordable housing project, public facilities, open spaces, and community services on 12.75 acres known as the National City Public Works Center and former Illes Family Trust site. Said Grant Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 21st day of June, 20 ATTES on Morrison, Chairman Bradrton, Secretary AP ROVED AS TOihRM: "Attut. Silv.l i C►T►. General . �_ Passed and adopted by the Community Development Commission of the City of National City, Califomia, on June 21, 2011, by the following vote, to -wit: Ayes: Commissioners Morrison, Natividad, Rios, Sotelo-Solis, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Chairman, Community Development Commission Secretary,-2dmmunity Development Commission By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2011-135 of the Community Development Commission of the City of National City, California, passed and adopted on June 21, 2011. Secretary, Community Development Commission By: Deputy CITY OF NATIONAL CITY, CALIFORNIA COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT MEETING DATE: June 21, 2011 AGENDA ITEM NO. 02 ITEM TITLE: A4 resolution of the Community Development Commission of the City of National City approving a Grant Agreement with Community Housing Works for $14,957,000 for the purpose of assisting Phase I of an infill affordable housing project, public facilities, open spaces and community services on 12.75 acres known as the National City Public Works Center (2200 Hoover Avenue) and former llles Family Trust site (2020 Hoover). (Low Mod Housing Tax Allocation Bonds.) (Companion items).; PREPARED BY: Patricia Beard PHONE: 4255 DEPARTMENT: R_; velop APPROVED BY EXPLANATION: In March, 2011 the CDC issued tax exempt bonds in part to assist with development of a 201-unit infill affordable transit oriented development on the sites of the National City Public Works Center and Illes Family Trust. Since Paradise Creek Housing Partners LP, developer for the project is a for -profit entity, the tax exempt bond funds cannot be provided directly to the project. Community Housing Works, a development partner for the project and a 501 (c) 3 non-profit, is eligible to receive the funds as a grant and loan them into the project. Loan repayment would be used, as shown on Page 5, to fund programs approved by the Executive Director annually including resident and community -based clean up efforts for the project, youth environmental education programming, jobs -corps type training, to create a 'notching program for resident savings accounts, and to create a first-time home buyer program for project residents. FINANCIAL STATEMENT: ACCOUNT NO. 22-409-500-598-3934. This Agreement provides a grant of $14,957,000 from 2011Tax Allocation and proceeds. The funds would be directly placed in an escrow account for the project, rather than being deposited in the recipient's general business accounts. APPROVED: Finance ENVIRONMENTAL REVIEW: The certified Environmental Impact Report for the Westside Specific Plan analyzed a Transit Oriented Development for this site. ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the resolution. BOARD ! COMMISSION RECOMMENDATION: "TTACHMENTS: 1. Proposed Agreement t ,t RESOLUTION NO. 2011 — RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY APPROVING A GRANT AGREEMENT BY AND BETWEEN COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND COMMUNITY HOUSING WORKS PROVIDING A GRANT OF $14,957,000 TO COMMUNITY HOUSING WORKS TO ASSIST DEVELOPMENT OF PHASE I OF AN INFILL AFFORDABLE HOUSING PROJECT, PUBLIC FACILITIES, OPEN SPACES AND COMMUNITY SERVICES ON 12.75 ACRES KNOWN AS THE NATIONAL CITY PUBLIC WORKS CENTER AND FORMER ILLES FAMILY TRUST SITE WHEREAS, as the result of a competitive request for qualifications process, on March 3, 2009, a partnership of Related Companies of California and Community Housing Works was selected to work exclusively with the Community Development Commission of the City of National City ("CDC") to plan for an infill affordable housing project adjacent to Paradise Creek between 18th and 22nd Streets; and WHEREAS, Related Companies of California and Community Housing Works formed a limited partnership known as Paradise Creek Partners, LP, to complete the Infill Affordable Housing Project (the "Project") described in the Westside Specific Plan; and WHEREAS, the CDC has approved a Disposition and Development Agreement with the partnership now called Paradise Creek Housing Partners, LP, for the Project that provides $14,957,000 to the Project in 2011 Tax Allocation Bonds; and WHEREAS, the CDC holds, within its Low and Moderate -Income Housing Fund, the sum of Fourteen Million Nine Hundred Fifty -Seven Thousand Dollars ($14,957,000) to be used to finance development of affordable housing projects such as the Project (the "Funds"); and WHEREAS, the Funds are proceeds of that certain "$39,660,000 Community Development Community Development Commission of the City of National City (San Diego County, California) (National City Redevelopment Project) 2011 Tax Allocation Bonds"; and WHEREAS, the CDC desires to also foster the development of private nonprofit, community -based, service organizations with the capacity to develop and/or finance affordable housing projects in National City such as the Project; and WHEREAS, accordingly, the CDC, on the terms and conditions set forth in the Grant Agreement, intends to grant the sum of Fourteen Million Nine Hundred Fifty -Seven Thousand Dollars ($14,957,000) to Community Housing Works for the dual purpose of permitting Community Housing Works to provide part of the financing for Phase 1 of the Project, and to build Community Housing Works capacity to participate in the development of future affordable housing projects in the community; and WHEREAS, Community Housing Works is a 501 (c) 3 non-profit corporation eligible to receive a grant of tax-exempt bond funds, and has agreed to fund the project assistance loan through a dedicated escrow account for that purpose; and Resolution No. 2011 — Page Two WHEREAS, Community Housing Works has pledged to use repayment of the grant funds for programs annually approved by the Executive Director including: 1. Resident and community -based clean-up efforts within the project; 2. Youth environmental education programming; 3. Jobs -corps type training; 4. To create a matching fund for project residents saving for home ownership; and 5. To create a first time homebuyer program for project residents. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City hereby approves a Grant Agreement by and between the Community Development Commission of the City of National City and Community Housing Works providing a grant of $14,957,000 to Community Housing Works to assist development of Phase I of an infill affordable housing project, public facilities, open spaces, and community services on 12.75 acres known as the National City Public Works Center and former Illes Family Trust site. Said Grant Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 21st day of June, 2011. Ron Morrison, Chairman ATTEST: Brad Raulston, Secretary APPROVED AS TO FORM: Claudia G. Silva CDC General Council GRANT AGREEMENT [Transit -Oriented Infill Affordable Housing and Paradise Creek Enhancement Project] THIS GRANT AGREEMENT, dated as of June 21, 2011 for identification purposes only (the "Grant Agreement"), is made and entered into by and between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY ("Commission"), a public body, corporate and politic (the "Commission"), and COMMUNITY HOUSINGWORKS, a California non-profit, public benefit corporation (hereinafter "CHW"), with reference to the following: RECITALS A. WHEREAS, Commission is a California community development commission, acting pursuant to the Community Redevelopment Law, to increase the supply of housing affordable to persons and families of very low, low and moderate -income in the community; B. WHEREAS, CHW is a California nonprofit, public benefit corporation whose purposes include development and operation of such affordable housing in, among other areas, the County of San Diego; C. WHERAS, Commission, at the same meeting of its Board as it considers approval of this Grant Agreement, expects to enter into that certain "Disposition and Development Agreement," dated as of even date herewith with Paradise Creek Housing Partners, L.P. (the "Developer"); D. WHEREAS, pursuant to the DDA and as more particularly provided therein, Developer will construct, in two (2) Phases, the Project on the Site, including, without limitation, a total of two hundred one (201) affordable rental housing units, certain community facilities for the use of the residents of both Phase I and Phase II, and certain offsite improvements including, without limitation, (i) improvement of the Paradise Creek Parcel, and (b) improvement and expansion, for the benefit of the entire community, of Paradise Creek Educational Park; E. WHEREAS, Commission holds, within its Low and Moderate -Income Housing Fund, the sum of Fourteen Million Nine Hundred Fifty -Seven Thousand Dollars ($14,957,000) to be used to finance development of affordable housing projects such as the Project (the "Funds"); F. WHEREAS, the Funds are proceeds of that certain "$39,660,000 Community Development Commission of the City of National City (San Diego County, California) (National City Redevelopment Project) 2011 Tax Allocation Bonds;" G. WHEREAS, Commission desires also to foster the development of private nonprofit, community -based, service organizations with the capacity to develop and/or finance affordable housing projects in National City such as the Project; and H. WHEREAS, accordingly, Commission, on the terms and conditions set forth in this Grant Agreement, intends to grant the sum of Fourteen Million Nine Hundred Fifty-Sc\.+cn Thousand Dollars ($14,957,000 to CHW for the dual purpose ofpemlitting CHW to provide part of the financing for Phase I of the Project and to build CHW's capacity to participate in the development of future affordable housing projects in the community. NOW, THEREFORE, for and in consideration of the mutual promises, covenants, and conditions herein contained, Commission and CHW agree as follows: DEFINITIONS AND INTERPRETATION 1.1 Defined Terms. Capitalized words and terms used in this Grant Agreement and not defined in this Grant Agreement (including, without limitation, in the Recitals above) shall have the meanings ascribed thereto in the DDA. Other capitalized words and terms used in this Grant Agreement shall have the meanings ascribed thereto where first used or as set forth in this Section [1.1]. Capitalized terms used in an exhibit attached hereto and not defined therein shall also have the meanings set forth in this Section [1.1]. "CHW Third Trust Deed Loan Note" means the promissory note to be made by Developer to evidence the CHW Third Trust Deed Loan. "DDA" shall mean that certain Disposition and Development Agreement, dated as of June 21, 2011, by and between Commission and Developer, as such document may be amended and implemented by the parties thereto. "Grant for Phase I" has the meaning set forth in Section [5.1] of this Grant Agreement. 1.2 Singular and Plural Terms. Any defined term used in the plural in this Grant Agreement shall refer to all members of the relevant class and any defined term used in the singular shall refer to any number of the members of the relevant class. 1.3 Accounting Principles. Any accounting term used and not specifically defined in this Grant Agreement shall be construed in conformity with, and all financial data required to be submitted under this Grant Agreement shall be prepared in conformity with, generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to Commission. 1.4 References and Other Terms. References herein to Articles, Sections and Exhibits shall be construed as references to this Grant Agreement unless a different document is named. References to subparagraphs shall be construed as references to the same Section in which the reference appears. The terms "including" and "include" mean "including (include) without limitation". Page 2 of 12 McikeEVDratfs Ju e 6, ' ITY\Gaao%?g itv eFn?v .6811PuboiE Works Yard\City of National City\DDAlDrafts from City\DDA 1.5 Exhibits Incorporated. All attachments to this Grant Agreement, as now existing and as the same may from time to time be modified, are incorporated herein by this reference. 2. PARTIES 2.1 Commission. Commission is the Community Development Commission of the City of National City and any successor to its rights, powers and responsibilities. The principal offices of Commission are located at 1243 National City Boulevard, National City, California 91950. 2.2 CHW. CHW is Community HousingWorks, a California nonprofit, public benefit corporation. The principal offices of CHW are located at 4305 University Avenue, Suite 550, San Diego, California, 92105. 3. CONDITION PRECEDENT TO EFFECTIVENESS It shall be a condition precedent to the effectiveness of this Grant Agreement that the DDA be approved by Commission not later than June 21, 2011, and go into force and effect. 4. COMMISSION RIGHT TO TERMINATE If the DDA terminates prior to the Close of Escrow for Phase I, then Commission, in addition to any and all other rights it may have to terminate this Grant Agreement, shall have the right to terminate this Grant Agreement by notice to CHW. 5 GRANT 5.1 Amount and Purpose. Subject to the terms and conditions of this Grant Agreement, Commission agrees to make a grant to CHW for Phase I (the "Grant for Phase I") in the amount of Fourteen Million Nine Hundred Fifty -Seven Thousand Dollars (S14,957,000 to be used for the sole purpose of CHW making the CHW Third Trust Deed Loan for Phase I to Developer. 5.2 Conditions to Grant for Phase I. Commission's obligation to make and disburse the Grant for Phase I shall be subject to satisfaction of the following conditions precedent: (a) Loan Agreement. CHW, as lender, and Developer, as borrower, enter into a loan agreement, approved by the Executive Director (including, without limitation, all underlying loan documents), pursuant to which CHW uses the Grant for Phase I proceeds for the purpose of making the CHW Third Trust Deed Loan to Developer on terms and conditions consistent with the DDA (the "CHW Third Trust Deed Loan Agreement"). Among Page 3 of 12 C UINTiDratfs June li, 261'lpm\t�ranotn,4gre eniv6811sup E Works Yard\City of National City\DDA\Drafts from City\DDA other things, the CHW Third Trust Deed Loan Agreement shall provide that neither it, nor any of its underlying documents (including, without limitation, the promissory note evidencing and/or the deed of trust securing the CHW Third Trust Deed Loan) may be amended, modified or rescinded without the prior written approval of the Executive Director, which approval shall not be unreasonably withheld. (b) Close of Escrow for Phase I. Escrow for Phase I must close concurrently. (c) Disbursement Agreement. CHW, the Phase I Construction Lender and Commission have entered into an agreement for disbursement of the Grant for Phase 1 substantially similar to the Construction Lender/Commission Disbursement Agreement for Phase I and such agreement has been approved by Developer and the Tax Credit Partner for Phase I. (d) Insurance. Commission has received satisfactory evidence that the insurance required pursuant to Article [9] of the Ground Lease for Phase I is in full force and effect. (e) Representations and Warranties. The representations of CHW contained in this Grant Agreement shall be correct in all material respects as of the Close of Escrow for Phase I as though made on and as of that date and, if requested by the Executive Director, Commission shall have received a certificate to that effect signed by CHW. (f) No Default. No default by CHW under this Grant Agreement shall then exist, and no event shall then exist which, with the giving of notice or the passage of time or both, would constitute such a default by CHW and, if requested by the Executive Director, Commission shall have received a certificate to that effect signed by CHW. 5.3 Disbursement of Grant for Phase I. The Grant for Phase 1 shall, subject to the terms and conditions of this Grant Agreement, be deposited into the Phase I Escrowin time to permit the close thereof and shall be disbursed therefrom at Close of the Phase I Escrow (a) to pay closing costs and expenses shown on the closing statement for the Phase I Escrow, and (b) to the Construction Lender for Phase I for deposit into a construction account from which disbursements shall be made periodically by the Construction Lender only to pay Phase I Project Costs in accordance with the Final Project Budget for Phase I. - PROGRAM INCOME 6.1 Defined. For the purposes of this Grant Agreement, "Program Income" shall mean all funds collected by CHW in repayment of the CHW Third Trust Deed Loan. Page 4 of 12 GURf4tN iIJratts June gks11 1'Ipm\Gatotn l I A eFRV 811Pugg Works Yard\City of National City\DDA\Drafts from City\DDA 6.2 Use of Program Income. CHW shall use the Program Income to fund social and educational programming and activities for the benefit of the Project, its residents and the residents of the community of which the Project is a part (the "Paradise Creek -Related Programs and Activities"). Such programs and activities could include, without limitation: (a) resident and/or community -based cleanup efforts in and around the Project, including, without limitation, in and around the Paradise Creek Parcel and/or Paradise Creek Education Park; provided, however, such efforts may not include routine and/or regular maintenance of such property; (b) youth environmental education programming; (c) job corps -type training programs; (d) as matching funds for individual development accounts to assist people of modest means save for the purchase of a lifelong asset, such as a home; or to obtain education and/or job training; and education and coaching programs related to personal finance and credit management; (e) to make first-time homebuyer down payment loans and related homebuyer education and coaching programs; and/or (f) other activities as approved in advance by the Executive Director. 6.3 Submission of Annual Plan. Not later than thirty (30) days after first receipt by CHW of Program Income and every year thereafter for which CHW receives any Program Income, CHW shall submit to the Executive Director for approval (which approval shall not be unreasonably withheld) a plan and budget for the Paradise Creek -Related Programs and Activities that CHW proposes to fund and operate over the ensuing one (1)-year period (the "Annual Plan"). That notwithstanding, the Executive Director shall be under no obligation to allow use of the Program Income to fund programs and activities otherwise obligated to be provided by the Tenant under the Ground Lease for Phase I. Additionally, if the Program Income received by CHW for any year or succession of years is insufficient to fund and operate any meaningful Paradise Creek -Related Programs and Activities for the ensuing ycar, CHW may, with the written consent of the Executive Director (which consent shall not be unreasonably withheld) accumulate funds until sufficient by holding such funds (unless de minimis) in an interest -bearing account, with such interest to become Program Income. 6.4 Implementation of Annual Plan. Promptly after approval of any Annual Plan, CHW shall implement that Annual Plan. Page 5 of 12 bla ctUt ails June 6. 2Ntipm\Grano{iiRgreeYmenfV26811.s oc Works Yard\City of National City\DDA\Drafts from City1DDA 6.5 Acknowledgment of City. Any and all Paradise Creek -Related Programs and Activates printed and/or digital materials, including signage, shall acknowledge, in a manner reasonably satisfactory to the Executive Director, the contribution of the City of National City to the funding of the subject program and/or activity. 6.6 Enforcement of CHW Third Trust Deed Loan Note. In order to reasonably maximize Program Income, CHW shall reasonably enforce payment of the CHW Third Trust Deed Loan Note. 7. GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS 7.1 CHW's Formation, Qualification and Compliance. CHW (a) is validly existing and in good standing under the laws of the State of California, (b) has all requisite authority to conduct its business, and has all requisite authority to execute and perform its obligations under this Grant Agreement. 7.2 Litigation. CHW represents and warrants that there are no material actions, lawsuits or proceedings pending or, to the best of CHW's knowledge, threatened against or affecting CHW, the adverse outcome of which could have a material adverse affect on CHW's ability to perform its obligations under this Grant Agreement. 8. RETENTION OF RECORDS CHW shall maintain all hooks, documents, papers, accounting records, and other evidence pertaining to this Grant Agreement and shall make such materials available at its office at all reasonable times during the term of this Grant Agreement and for three (3) years from the date of Close of Escrow for Phase I for inspection by Commission and for furnishing of copies to Commission, if requested. 9. INDEPENDENT CONTRACTOR Both parties hereto in the performance of this Grant Agreement will be acting in an independent capacity and not as agents, employees, partners or joint venturers with one another. Neither CHW nor CHW's employees are employees of Commission and are not entitled to any of the rights, benefits, or privileges of Commission's employees, including but not limited to retirement, medical, unemployment, or workers' compensation insurance. 10. CONTROL Neither Commission nor its officers, agents or employees shall have any control over the conduct of CHW or any of CIIW's employees except as herein set forth, and CHW expressly agrees not to represent that CHW or CHW's agents, servants, or employees are in any Page 6 of 12 GUKYitNI IJsatts W ne A 1B1i1ipm1Gran)1aI City\RF �i.6811Pudolc Works Yard\City of National City\DDA\Drafts from City\DDA manner agents, servants or employees of Commission, it being understood that CHW, its agents, servants, and employees are as to Commission wholly independent contractors and that CHW's obligations to Commission are solely such as are prescribed by this Grant Agreement. 11. COMPLIANCE WITH APPLICABLE LAW CHW, in the performance of this Grant Agreement, shall comply with all applicable State and Federal statutes and regulations, and all applicable ordinances of the City of National City, whether now in force or subsequently enacted. CHW, and each of its subcontractors, shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Grant Agreement. 12. NON-DISCRIMINATION PROVISIONS In the performance of this Agreement, CHW shall: (a) not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition; and (b) take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. 13. INDEMNIFICATION AND HOLD HARMLESS CHW agrees to defend, indemnify, and hold harmless Commission and the City of National City, and their officers and employees, 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, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of CHW's negligent performance of this Grant Agreement. 14. INSURANCE CHW, at its sole cost and expense, shall purchase and maintain, and shall require its contractors, if any, to purchase and maintain, until issuance of the Certificate of Completion for Phase I, the following insurance policies: A. Automobile insurance covering all bodily injury and property damage incurred during the performance of this Grant Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). Page 7 of 12 cU eeck I1Dratts W ne 6, 101'Ipm\ rranotnRgfregmenfw.6.6.11.s o Works Yard1City of National City1DDA\Drafts from City\DDA B. Commercial general liability insurance, with minimum limits of $1,000,000 per occurrence/ $2,000,000 aggregate, covering all bodily injury and property damage arising out of its operations under this Grant Agreement. C. Workers' compensation insurance in an amount sufficient to meet statutory requirements covering all of CHW employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of Commission. Said endorsement shall be provided prior to commencement of work under this Grant Agreement. D. The aforesaid policies shall constitute primary insurance as to Commission, its officers, employees, and volunteers, so that any other policies held by Commission shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to Commission of cancellation or material change. E. Said policies, except for the professional liability and workers' compensation policies, shall name Commission and the City of National City, and their officers, agents and employees as additional insureds, and separate additional insured endorsements shall be provided. F. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, CHW shall maintain such insurance coverage for three years after expiration of the Willi (and any extensions) of this Grant Agreement. In addition, the "retro" date must be on or before the date of this Grant Agreement. G. Any aggregate insurance limits must apply solely to this Grant Agreement. H. Insurance shall be written with only California admitted companies which hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by Commission's Risk Manager. In the event coverage is provided by non - admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. I. This Grant Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by Commission's Risk Manager. If CHW does not keep all of such insurance policies in full force and effect at all times required under this Grant Agreement, Commission may elect to treat the failure to maintain the requisite insurance as a breach of this Grant Agreement and, subject to the right to notice and cure set forth in Section [17.A], terminate this Grant Agreement as provided herein. Page 8 of 12 bf ESNNPA June 6,ZTi1pml ran RgregmeTv.6.fi.11.s. o2 Works YardlCity of National City\DDA\Drafts from City\DDA J. All deductibles and self -insured retentions in excess of S 10,000 must be disclosed to and approved by Commission. 15. LEGAL FEES If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Grant Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of -court settlement, shall be entitled to have and recover of and from the other party all reasonable costs and expenses of suit, including reasonable attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. 16. MEDIATION/ARBITRATION If a dispute arises out of or relates to this Grant Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be. ?' me equally by the parties. Any controversy or claim arising out of, or relating to, this Grant Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. 17. TERMINATION A. This Grant Agreement may be terminated by Commission for cause in the event of a material breach of this Grant Agreement and failure by CHW to cure such hi each within thirty (30) days after the giving of notice by Commission. If, however, by its nature the failure cannot reasonably be cured within thirty (30) days, CHW may have such longer period ..f time as is reasonably necessary to cure the failure, provided, however, that CHW commence said cure within said thirty (30)-day period, and thereafter diligently prosecute said cure to completion within one hundred eighty (180) days. B. Termination with cause shall be effected by delivery of written Notice of Termination to CHW as provided for herein. Page 9 of 12 GtJ 1tJT'Dratts June ells Ipm\Grra1not ,i'A enf v16811su.doc Works Yard\City of National City\DDA\Drafts from City\DDA 18. NOTICES All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To the Commission: To CHW: Community Development Commission of the City of National City 1243 National City Blvd. National City, California 91950 Attn: Executive Director Community IlousingWorks 4305 University Ave, Suite 550 San Diego, California 92105 Attn: Anne B. Wilson Sr. VP of Housing & Real Estate Development Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-eight (48) hours by letter mailed or delivered as specified in this Section. 19. MISCELLANEOUS PROVISIONS A. Computation of Time Periods. If any date or time period provided for in this Grant Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state or legal holiday. Page 10 of 12 03En:1Y1is its Tu e 6, IIII pmlGaanoNgGiiemeniv 6.6811Puboic Works Yard\City of National City\DDA\Drafts from City\DDA B. Counterparts. This Grant Agreement may he executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Grant Agreement are solely for the convenience of the parties hereto, are not a part of this Grant Agreement, and shall not be used for the interpretation or determination of the validity of this Grant Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Grant Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this Grant Agreement. The terms of this Grant Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Grant Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof: H. Applicable Law. This Grant Agreement shall be governed by and construed in accordance with the laws of the State of California. I. Entire Agreement. This Grant Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise, made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. J. Successors and Assigns. This Grant Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. K. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Grant Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Grant Agreement, (iv) each party and such patty's counsel and advisors have reviewed this Grant Page 11 of 12 EtA,ec Dmts Ju e 6, pilipm\Gravg teenfb.6.6811sIoic Works Yard\City of National City\DDA1Drafts from City\DDA Agreement, (v) each party has agreed to enter into this Grant Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Grant Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parties hereto have executed this Grant Agreement on the date and year first above written. COMMUNI . HOUSINGWORKS, a California nonprofit, c benefit c oral' n By: Its: `!2. W ce COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public body, corporate and politic By: APPROVED AS TO FORM: LAW OFFICES OF LANCE E. GARBER, Commission Special Counsel By: Lance E. Garber Its: Page 12 of 12 C:UKYttNTifsaiisJune A B11pm\Gatio l CI ARntv2gile 1sudoic Works Yard\City of National City\DDA\Drafts from City\DDA OFFICE OF THE CITY CLERK 1243 National City Blvd. National City, California 91950 Michael R. Dalla, CMC - City Clerk 619-336-4228 phone / 619-336-4229 fax June 27, 2011 Ms. Anne Wilson Community Housing Works 4305 University Avenue, Suite 550 San Diego, CA 92105 Dear Ms. Wilson, On June 21st, 2011, Resolution No. 2011-135 was passed and adopted by the Community Development Commission of the City of National City, approving a Grant Agreement with Community Housing Works. We are enclosing for your records a certified copy of the above Resolution and a fully executed original Agreement. Sincerely, Esther Clemente Deputy City Clerk Enclosures cc: Community Development Commission