HomeMy WebLinkAboutReso 51-2023 (23-237)1
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AHSC IMPLEMENTATION AND
COOPERATION AGREEMENT
(1051 Mission Affordable)
THIS AHSC IMPLEMENTATION AND COOPERATION AGREEMENT (the
“Agreement”) is made and entered into as of __________, 2023 (the “Effective Date”) between
the City of South San Francisco, a municipal corporation (“Agency”), and BRIDGE Housing
Corporation, a California nonprofit public benefit corporation (the “Developer “and collectively
with the Agency, the “Parties”, or individually, a “Party”) upon the basis of the following facts,
understanding and intentions of the Parties:
A.The State of California, the Strategic Growth Council (“SGC”) and the Department
of Housing and Community Development (“HCD”) issued a Notice of Funding Availability dated
January 30, 2023 (the “AHSC NOFA”), under the Affordable Housing and Sustainable
Communities (“AHSC”) Program established under Division 44, Part 1 of the Public Resources
Code, commencing with Section 75200 and as further governed by the AHSC Program Round 7
Guidelines dated December 15, 2022 (the “AHSC Guidelines”).
B.Developer is applying for AHSC funds in response to the AHSC NOFA to provide
funding for (A) development of the “1051 Mission Affordable” affordable housing project in the
City of South San Francisco, California, to be constructed by the Developer (the “Housing
Project”); (B) the construction of certain sustainable transportation infrastructure to be constructed
by the Developer, and described more particularly below (the "Developer STI Improvements");
(C) the construction of certain sustainable transportation infrastructure to be constructed by the
Agency and described more particularly below (the "Agency STI Improvements"); (D) the
construction of certain transit related amenities to be constructed by the Agency (the "Agency
TRA Improvements"; together with the Agency STI Improvements, the “Transportation
Project”); and (E) the construction of certain transportation-related improvements to be
constructed by other parties and performance of certain program costs elements (“Non-Agency
Projects”). These improvements are described in more detail in the final application to be
submitted by April 4, 2023 (collectively, the “AHSC Application”). The Agency is not a co-
applicant with the Developer on the AHSC Application, but has rights of access and development
over the property on which the Developer STI Improvements and the Transportation Project will
take place (the “Transportation Property”).
C.The AHSC Application is anticipated to seek an award to the Developer in an
approximate aggregate amount of up to $50,000,000 in AHSC funds consisting of: (A) up to
$35,000,000 of AHSC loan funds for a permanent loan (“AHSC Loan”) which will be disbursed
to a limited partnership (the “Partnership”) formed for the development and operation of the
Housing Project; (B) up to $5,000,000 of AHSC grant funds for the purpose of reimbursing the
cost of the Developer STI Improvements; (C) up to $1,000,000 of AHSC grant funds for the
purpose of reimbursing the cost of the Agency STI Improvements; (D) up to $1,000,000 of AHSC
grant funds for the purpose of reimbursing the cost of Agency TRA Improvements; and (E) up to
$8,000,000 of AHSC grant funds for the purpose of reimbursing the cost of Non-Agency Projects.
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The AHSC grants shall be referred to collectively as the “AHSC Grants”. The AHSC Loan and
the AHSC Grants are collectively referred to herein as the “AHSC Financing.”
D. The Agency and Developer are entering into this Agreement to comply with the
AHSC Guidelines and the specific AHSC “Program Threshold Requirements” set forth in Section
106 of the AHSC Guidelines, including, without limitation, the requirement that the Developer
and Agency establish “site control” over the land on which the Transportation Project and the
Developer STI Improvements will be constructed, and the requirement that grant recipients and
sub-recipients demonstrate prior experience with similar transportation projects by providing
evidence of at least two prior projects that are similar to the proposed AHSC project in scope and
size, which have been completed by the applicant, or joint applicant, during the ten (10) years
preceding the AHSC Application due date. The AHSC Program Threshold Requirements also
state that applicants may demonstrate this requisite experience by using the past experience of
work completed of a non-applicant so long as the applicants can provide an executed agreement
with that specific non-applicant for the completion of the related work in the AHSC Application
for which funding is sought. The Agency is a non-applicant, but, as set forth herein, will have
obligations to complete the following Transportation Project:
1. Agency Sustainable Transportation Infrastructure (STI): [Install
approximately 9,000-feet of Class IV bike lane along Westborough
Boulevard between Camaritas Avenue and Junipero Sierra Boulevard. The
bikeway will run on both sides of the street, with 4,500 linear feet each
way.]
2. Agency Transportation-Related Amenities (TRA):
(a) Install 5 bus shelters: 1 shelter at the northwest corner and 1 shelter
at the southeast corner of Grand Avenue and Willow Avenue, 1 shelter at
the northwest corner and 1 shelter at the southeast corner of Grand Avenue
and Chestnut Avenue, 1 shelter at the northwest corner of Grand Avenue
and Maple Avenue.
(b) Install 4 bus bulb-outs: 1 bus-bulb at the northwest corner and 1
bus-bulb at the southeast corner of Grand Avenue and Willow Avenue,
bus-bulb at the northwest corner and 1 bus-bulb at the southeast corner of
Grand Avenue and Chestnut Avenue.
E. The Agency can demonstrate prior experience and provide evidence of at least two
prior projects that are similar in scope and size which have been completed during the ten (10)
years preceding April 4, 2023. Below is a list of these projects:
1. Agency STI EXAMPLE 1: Caltrain Access & Bay Trail Gap Closure Project.
Description: The project installed approximately 1700-feet of Class IV separated
bikeway along East Grand Avenue. The full scope was the project constructed
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pedestrian and bicycle improvements that closed the gap between the new
pedestrian and bicycle facility connection from the East Plaza of the new South
San Francisco Caltrain station and the pedestrian and bicycle connections in the
areas of East Grand Ave and Gateway Boulevard, and East Grand Avenue and
Forbes Boulevard/Harbor Way.
Completion Date: 1/1/2023
Construction Costs: $650,000
2. Agency STI EXAMPLE 2: North Access Bike Ped Improvement Project
Description: This project installed approximately 100 feet of Class IV median-
protected separated bikeway along North Access Road. The full scope of the
project was to install the City’s first median-protected cycle track, a Class IV bike
facility, and sidewalk widening improvements along North Access Road
connecting South Airport Boulevard to the Bay Trail adjacent to ParkSFO, as part
of the BCDC permitting requirements.
Completion Date: 8/1/2020
Construction Costs: $597,000
3. Agency TRA EXAMPLE 1: Linden and Spruce Traffic Calming Improvements
Description: The project installed concrete curb extensions “bulb-outs” along both
Spruce Avenue and Linden Avenue which serve the Samtrans 130 Route. The
bulb-outs along Linden Ave included storm drain biofiltration (bioswale) areas
with an irrigation system. Pavement reconstructed and striped with high visibility
“ladder” style crosswalks, new stop pavement markings, and new green-back
shared bike/vehicle lane pavement markings “sharrows”.
Completion Date: 7/9/2021
Construction Cost: $1,355,000
4. Agency TRA EXAMPLE 2: Sunshine Gardens Safety and Connectivity
Improvements:
Description: The project installed multiple bulb-outs, high-visibility yellow ladder
crosswalks, edge lines, new ADA curb ramps, and a Class 3 bikeway to improve
pedestrian and bicyclist safety and connectivity in the Sunshine Gardens
neighborhood.
Construction Date: 3/20/2020
Construction Cost: $1,016,000
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5. Agency [Add more STI/TRA projects as applicable.]
F. The Developer, as set forth herein, will have obligations to complete the following
Developer STI Improvements:
1. Developer Sustainable Transportation Infrastructure (STI):
(a) Construct new sidewalk and related improvements along a portion
of the West side of Mission Road, from approximately Grand Avenue to
Oak Avenue;
(b) Construct raised crosswalks located within Mission Road at
approximately Grand Avenue and Oak Avenue, and within Oak Avenue at
approximately Mission Road.
G. The Developer can demonstrate prior experience and provide evidence of at least
two prior projects that are similar in scope and size which have been completed during the ten (10)
years preceding April 4, 2023. Below is a list of these projects:
1. Developer STI EXAMPLE 1: [Description of prior project – BRIDGE to provide].
Completion Date: [_______]
Construction Cost: [________]
2. Developer STI EXAMPLE 2: [Description of prior project – BRIDGE to provide].
Completion Date: [_______]
Construction Cost: [________]
F. The Agency shall be responsible for developing and constructing the
Transportation Project and for conveying to Developer sufficient site control to enable Developer
to complete the Developer STI Improvements (the “Agency Obligations”), and for all costs and
expenses related thereto. Developer shall be responsible for constructing and developing the
Housing Project and the Developer STI Improvements (together, the “Developer Obligations”),
and for all costs and expenses related thereto, except as related to the Agency obligation to convey
sufficient site control to enable Developer to complete the Developer STI Improvements. In
connection with the AHSC Grants and AHSC Loan, Developer is required to enter into standard
agreements, reimbursement agreements, and regulatory agreements with HCD where Developer
will be liable for the full and timely performance by the Parties to complete the obligations set
forth therein, including completion of the Housing Project, the Developer STI, the Transportation
Project, and Non-Agency Projects, all as described in the AHSC Application. The AHSC
Application and all standard agreements, reimbursement agreements, regulatory agreements and
any other agreements required by HCD in connection with the AHSC Financing shall be
collectively referred to herein as the “AHSC Documents”.
G. The Agency and Developer each acknowledge and agree that the inability or failure
by either Party to complete its obligations, and to fully and timely complete each Party’s respective
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improvements required by the AHSC Documents, may affect the timing and right of the other
Party to receive reimbursement of AHSC funds due the non-performing Party, notwithstanding the
other Party’s full and timely performance of its obligations.
NOW, THEREFORE, in consideration of the recitals, covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
1. Obligations. The Agency shall, in its sole responsibility, complete the
Transportation Project in accordance with the terms of the AHSC Documents and the approved
design and construction documents and in accordance with the terms of this Agreement. The
Agency also shall, in its sole responsibility, convey to Developer sufficient site control to enable
Developer to complete the Developer STI Improvements. The Developer shall, in its sole
responsibility, complete the Housing Project in accordance with the terms of the AHSC
Documents and the approved design and construction documents. The Developer also shall
complete the Developer STI Improvements, contingent upon conveyance by the Agency to
Developer sufficient site control for completion of the Developer STI Improvements. Each Party
will provide the other Party with copies of all requisitions for work related to their respective work,
the notice of completion, and other documents related to their respective work that another party
may reasonably request.
2. Schedule of Performance; Progress Reports. Developer and Agency shall comply
with the schedule of performance initially projected as set forth in Exhibit A attached hereto, but
ultimately as shall be set forth in the AHSC Documents (the “Schedule of Performance”),
provided, however, the Agency shall not be obligated to comply with any changes to the Schedule
of Performance included within the AHSC Documents unless the Agency has consented to such
changes, which Agency consent will not be unreasonably withheld, conditioned or delayed. The
Agency and Developer agree to give the other Party a written quarterly status report on the progress
toward the milestones and grant disbursement milestones listed in the Schedule of Performance
for the Agency Obligations. If any Party anticipates not meeting the targeted construction
milestones as established in the AHSC Documents, that Party will promptly notify the other Party
in writing and will meet with the other Party to discuss the reasons why the milestone dates may
not be met and what actions the delayed Party intends to take to meet the milestones or otherwise
rectify the work schedule in order to maintain good standing with the terms and conditions
established in the AHSC Documents.
3. Site Control. The Agency hereby represents and warrants that it possesses sufficient
site control rights to fulfill its obligations in connection with the Transportation Property and the
Developer STI Improvements.
4. Delegation. Notwithstanding the obligations of each Party under this Agreement,
each Party shall be entitled to enter into sub-agreements with each other or with other parties to
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provide any assistance or services needed for each Party to perform its obligations under this
Agreement and the AHSC Documents.
5. Cost Overruns. Developer shall be responsible for paying all costs required to
complete the Housing Project, irrespective of whether such costs exceeds the AHSC Loan.
Developer shall be responsible for paying all costs required to complete the Developer STI
Improvements, irrespective of whether such costs exceeds the AHSC Loan; provided however,
that the Agency and not Developer shall be responsible for all costs of conveying to Developer
site control sufficient for Developer to complete the Developer STI Improvements. Agency shall
be responsible for paying all costs required for the Transportation Project, irrespective of whether
such costs exceed the portion of the AHSC Grant actually awarded and designated for the
Transportation Project.
6. Billing and Payment Procedure: The Agency shall submit to Developer all
reimbursement requests in the form of monthly invoices for the costs associated with the
Transportation Project. Invoices will include backup documentation as required by HCD.
Developer shall submit corresponding reimbursement requests to HCD within 15 days of receipt
of Agency’s invoice (or such later date as may be required by HCD, but in any event within 45
days after receipt of the Agency’s invoice) and disburse to the Agency any such funds received
from HCD within 7 days of receipt. In no event will the Agency’s invoices submitted to Developer
exceed in the aggregate the amount of the portion of the AHSC Grant actually awarded and
designated for the Transportation Project.
7. Implementation Agreements. The Agency and the Developer recognize that each
Party may need additional assurances from the other Party regarding the AHSC Grant and AHSC
Loan before commencement of construction of the Housing Project and the Transportation Project,
including assurances for lenders and investors. The Parties agree to cooperate with each other to
reach mutual agreement on amendments to this Agreement, other implementation agreements or
estoppel certificates necessary to provide reasonable assurances and indemnifications. Developer
recognizes that any such amendments to this Agreement, other implementation agreements or
estoppel certificates may require the approval of the governing body of the Agency.
8. Notices. Formal notices, demands, and communications between the parties shall
be sufficiently given if, and shall not be deemed given unless, dispatched by registered or certified
mail, postage prepaid, return receipt requested, or delivered by express delivery service, return
receipt requested, or delivered personally, to the designated address of the Parties as follows:
Agency: City of South San Francisco
400 Grand Avenue
South San Franisco, CA 94080
ATTN: Economic & Community Development Housing
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To Developer: Smitha Seshadri
BRIDGE Housing Corporation
600 California Street, Suite 900
San Francisco, CA 94108
Fax: 415-495-4898
9. Events of Default. The occurrence of any of the following events shall constitute
an Event of Default under this Agreement:
(a) A Party fails to perform any of its obligations under this Agreement,
and does not cure such failure within 30 days after written notice of such failure has been delivered
to the defaulting Party in accordance with Section 8 above; or
(b) A Party purports to revoke this Agreement or this Agreement
becomes ineffective for any reason.
10. Termination. This Agreement shall terminate upon the earlier of: (i) completion of
all obligations under the AHSC Documents related to the Agency Obligations; or (ii) mutual
agreement of the Parties hereto.
11. Third Party Beneficiary. The Partnership shall be a third party beneficiary of this
Agreement and shall be entitled to the rights and benefits hereunder and may enforce the provisions
hereof as if it were a party to this Agreement.
12. Assignment. Agency hereby acknowledges and approves the assignment by
Developer and the Partnership to the Housing Project’s senior construction lender (“Construction
Lender”) of all of their respective right, title and interest in, to and under the Agreement (the
“Collateral”) as collateral security for the Partnership’s obligations to Construction Lender under,
and in connection with Construction Lender’s loan to the Partnership. In the event Construction
Lender forecloses upon the Collateral, Agency hereby agrees that Construction Lender shall have
all of Developer’s and the Partnership’s rights and interests under the Agreement. Construction
Lender shall be a third party beneficiary of this Section 12.
13. Indemnity.
(a) Developer shall indemnify, defend (with counsel approved by
Agency), and hold the Agency and its officers, directors, employees, agents, consultants
(collectively, "Agency Indemnitees") harmless from and against any and all claims, losses, costs,
damages, liability and judgments, including reasonable attorneys' fees (with counsel of Agency’s
choice), incurred by or asserted against any Agency Indemnitees arising in connection with any
breach by Developer, the Partnership, any affiliate of Developer, or any contractor, subcontractor,
agent or employee of Developer, the Partnership or any affiliate of Developer of any term or
condition of the AHSC Financing, including the AHSC Documents and any related documents
executed by Developer, the Partnership, or any affiliate of Developer; provided, that Developer's
indemnification obligations under this Agreement shall not extend to claims resulting solely from
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the gross negligence or willful misconduct of Agency Indemnitees. It is further agreed that Agency
does not and shall not waive any rights against Developer or the Partnership that it may have by
reason of this indemnity and hold harmless agreement because of Agency’s acceptance, or
Developer's or the Partnership's deposit with Agency of any of the insurance policies.
(b) Agency shall indemnify, defend (with counsel approved by
Developer), and hold the Developer, the Partnership and their respective officers, directors,
employees, agents, consultants and partiers (collectively, "Developer Indemnitees") harmless from
and against any and all claims, losses, costs, damages, liability and judgments, including
reasonable attorneys' fees (with counsel of Developer's choice), incurred by or asserted against any
Developer Indemnitees arising in connection with any breach by Agency, or any division,
department, office, contractor, subcontractor, agent or employee of Agency of any term or
condition of the AHSC Financing, including the AHSC Documents, and any related documents
executed by Agency; provided, that Agency’s indemnification obligations under this Agreement
shall not extend to claims resulting solely from the gross negligence or willful misconduct of
Developer Indemnitees. It is further agreed that Developer does not and shall not waive any rights
against Agency that it may have by reason of this indemnity and hold harmless agreement because
of Developer's acceptance, or Agency’s deposit with Developer of any of the insurance policies.
14. Miscellaneous.
(a) Nothing in this Agreement shall be construed to limit any claim or right
which any Party may otherwise have at any time against an Indemnitor or any other person arising
from any source other than this Agreement, including any claim for fraud, misrepresentation,
waste, or breach of contract other than this Agreement, and any rights of contribution or indemnity
under any federal or state environmental law or any other applicable law, regulation, or ordinance.
(b) If any Party delays in exercising or fails to exercise any right or remedy
against a Party, that alone shall not be construed as a waiver of such right or remedy. All remedies
of any Party against the other Party are cumulative.
(c) This Agreement shall be binding upon and inure to the benefit of each of
the Parties hereto and their respective representatives, heirs, executor, administrators, successors,
and assigns. This Agreement may not be amended except by a written instrument executed by the
Parties hereto.
(d) This Agreement shall be deemed to have been delivered and accepted in the
State of California and governed exclusively by the internal substantive laws of the State of
California as the same may exist at the date hereof. The Parties hereto agree that any action hereon
between the parties and their successors in interest may be maintained in a court of competent
jurisdiction located in the State of California, and consent to the jurisdiction of any such California
court for the purposes connected herewith.
(e) Each Party hereto intends that this Agreement shall not benefit or create any
right or cause of action in or on behalf of any person other than the Parties hereto.
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(f) This Agreement may be executed in multiple counterpart copies, any one of
which when duly executed, with all formalities hereof, shall be fully binding and effective as the
original of this Agreement. This Agreement may be executed using electronic signatures and
delivered via .pdf and shall be considered an original, and shall have the same legal effect, validity
and enforceability as a paper record. For the avoidance of doubt, the authorization under this
paragraph may include, without limitation, use or acceptance of manually signed paper documents
which have been converted into electronic form (such as scanned into .pdf format), or an
electronically signed documents converted into another format, for transmission, delivery and/or
retention.
(g) This Agreement shall be effective as of the Effective Date, provided
however that in the event that the Parties do not receive an award of the AHSC funds, this
Agreement shall automatically terminate and be of no further force or effect.
[Signatures on following page]
Signature Page To AHSC Implementation
and Cooperation Agreement (1051 Mission Affordable)
144\324\3465950
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the Effective
Date.
AGENCY:
CITY OF SOUTH SAN FRANCISCO,
a municipal corporation
By: ________________________________
Name: ________________________________
Its: ________________________________
[Signatures Continue on Following Page]
Signature Page To AHSC Implementation
and Cooperation Agreement (1051 Mission Affordable)
144\324\3465950
DEVELOPER:
BRIDGE Housing Corporation,
a California nonprofit public benefit corporation
By: ________________________________
Name: ________________________________
Its: ________________________________
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EXHIBIT A
Schedule of Performance
(1051 Mission Affordable AHSC)
AGENCY:
Agency STI Improvements
Performance Milestone Date
Begin construction September 1, 2023
Complete Agency STI Improvements February 1, 2024
All funds fully disbursed July 1, 2025
Agency TRA Improvements
Performance Milestone Date
Begin construction February 1, 2024
Complete construction August 1, 2024
All funds fully disbursed March 1, 2025
Note Agency performance milestone below regarding Agency site control obligation under
Developer STI Improvements, below.
DEVELOPER:
Developer STI Improvements
Performance Milestone Date
Agency conveys site control to Developer June 1, 2024
Begin construction January 1, 2025
Complete Developer STI Improvements November 1, 2026
All funds fully disbursed December 1, 2028
Developer Housing Project
Performance Milestone Date
Execute Standard Agreement for AHSC Grants December 31, 2023
Execute Disbursement Agreement for AHSC Grants December 31, 2023
Begin construction of housing project January 1, 2025
Complete construction and obtain Certificate of Occupancy
for the Housing Project
June 1, 2027
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All AHD funds fully disbursed December 31, 2028
[END OF EXHIBIT A]