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HomeMy WebLinkAboutMINUTES - 12071993 - 1.16 (2) a HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA TO: BOARD OF COMMISSIONERS DATE: December 7, 1993 FROM: Richard J. Martinez, Executive Director cc: SUBJECT: CASA DEL RIO SENIOR HOUSING DEVELOPMENT: AGREEMENT FOR CONSULTING SERVICES WITH GUBB & BARSHAY I. RECOMMENDED ACTION APPROVE Agreement for Consulting Services with GUBB,& BARSHAY and AUTHORIZE the Executive Director to execute the Agreement, on behalf of the Housing Authority of the County of Contra Costa, to provide assistance in establishing a non-profit general partner and a limited partnership for Casa del Rio Senior Housing Development and in restructuring the project to receive syndication proceeds from the reserved tax credit allocation under the Federal Low Income Housing Tax Credit (LIHTC) program. H. FINANCIAL IMPACT: No General Funds required. Payment under this contract are charged to the project budget. III. REASONS FOR RECOMMENDATION/BACKGROUND In an effort to find funding to cover any potential additional cost overruns for Casa del Rio Senior Housing Development,and to make the project more financially secure during operations,the Authority applied for the Federal Low Income Housing Tax Credit (LIHTC) program in September 1993. Under the LIHTC program, the tax credits are sold to investors/limited partners to provide substantial syndication proceeds as additional financial resources for low income housing projects. On November 4th,the Authority received word that the California Tax Credit Allocation Committee (TCAC) awarded a reservation of tax credits to the project under the LIHTC program. It is anticipated that the project could receive approximately$3 Million in equity from syndicating the reserved allocation of tax credits. This amount would allow the Authority to cover any additional cost overruns during construction and to restructure the existing financing to make the project more financially secure during operations. Under the LIHTC program, the Authority must develop a non-profit affiliate to act as the managing general partner of a limited partnership and negotiate with the proposed investor/limited partner in order to establish a limited partnership. The limited partnership,composed of the Authority's non-profit affiliate and the for-profit investor,would become the owner of this very low income project for the 15 year tax credit period and then transfer it back to the Authority at the end of that period. Due to the complex policies and regulations of the LIHTC program and the other existing funding sources for the project,the Authority requires the assistance of special legal experts in these programs to set-up the non-profit affiliate, to negotiate with the potential investors/limited partner in order to establish the limited partnership, to review the necessary documents for the program and the affiliate and to assist in the negotiations with the existing lenders regarding the restructuring of the ownership and financing of the project. Staff is recommending that the Authority CONTINUED ON ATTACHNIENT: SIGNATURE l IV RECONtMENDATION OF EXECUTIVE DIRECTOR RECONII4 ENDATION OF BOARD COND&TrM APPROVE n SIGNATURE(S) ACTION OF BOARD ON ,r e 4.a..'-7TH a a APPROVED AS RECOMMENDED OTIIER VOTE OF COMMISSIONERS OUS(ABSENT I HEREBY CERTIFY THAT TMS IS A TRUE AND CORRECT AYES: NOES: COPY OF AN ACTION TARN AND ENTERED ON THE ABSENT: ABSTAIN: NIINU ES OF THE BOARD OF CONII4IISSIONERS ON THE DATE SHOWN. ATrESIED­,-�o Q wa..B 1 q� Phil Batchelor,Clerk of the of Commissioners BY 12_\ •• Q Q a ,DEPUTY enter into a contract with GUBB & BARSHAY, Attorneys at Law, because of their extensive, successful experience working with the funding programs and the LIHTC program. County Counsel has reviewed the scope of services required and the firm's qualifications and,given the tight time frame and complexity of the program,approves this firm to provide the assistance requested. At its regular meeting on November 22,1993,the Advisory Housing Commission recommended that the Board of Commissioners approve the Agreement and authorize the Executive Director to execute the Agreement on behalf of the Housing Authority. IV. CONSEQUENCE OF NEGATIVE ACTION: A decision by the Board of Commissioners not to approve,and authorize execution of,the Agreement may make it more difficult for the Housing Authority to restructure the project ownership and financing to make the project more financially sound. mlg:c\bo-gubbLash SHORT FORM SERVICE CONTRACT Number CDR-G&B-1 Fund/Org. # Account # Other# 1. Contract Identification. Subject: Consultant Services for setting up Casa del Rio under the Low Income Housing Tax Credit Program 2. Parties. The Housing Authority of the County of Contra Costa, California (Authority) , and the following named Contractor mutually agree and promise as follows: Contractor: Gubb & Barshay Taxpayer ID # Capacity: Attorneys at Law Address: 44 Montgomery Street, Suite 300 San Francisco, CA 94104 3. Term. The effective date of this Contract is , and it terminates unless sooner terminated as provided herein. 4. Termination. This Contract may be terminated by the Authority, at its sole discretion, upon five-day advance written notice thereof to the Contractor, or cancelled immediately by written mutual consent. 5. Payment Limit. Authority's total payments to Contractor under this Contract shall not exceed $30,000 6. Authority's Obligations. In consideration of Contractor's provision of services -as described below, and subject to the payment limit expressed herein, Authority shall pay Contractor, upon Contractor's submission of a properly documented demand for payment which shall be submitted not later than 30 days from the end of the month in which the contract services were rendered, and upon approval of such demand by the Executive Director of the Authority or his designee, as follows: (Check one alternative only) E] a. FEE RATE: $ per service unit: ( ) hour; or ( ) session, as defined below; or ( } calendar (day,. week or month) NOT TO EXCEED a total of service unit(s) . b. Payment in full after approval by the Executive Director. XD c. As set forth in the attached Letter Agreement, dated November 8, 1993. 7. Contractor's Obligations. Contractor shall provide the following described services: See attached Letter Agreement, dated November 8, 1993. To the extent there is a conflict, the terms of the Short Form Serivices Contract shall supercede the terms of the Letter Agreement. Housing Authority of the County of Contra Costa SHORT FORM SERVICE CONTRACT Number CDR-G&B-1 (Cont'd.) 8. Compliance with Law. Contractor shall be subject to and comply with all Federal , State and local laws and regulations applicable with respect to its performance under this Contract, including but not limited to, licensing, employment and purchasing practices; and wages, hours and conditions of employment, including nondiscrimination. 9. Nondiscriminatory Services. Contractor agrees that all goods and services under this Contract shall be available to all qualified persons regardless of age, sex, race, religion, color, national origin, or ethnic background, or handicap, and that none shall be used, in whole or in part, for religious worship or instruction. 10. Independent Contractor Status. This Contract is by and between two independent contractors and is not intended to and shall not be construed to create the relationship between the parties of agent, servant, employee, partnership, joint venture, or association. 11. Disputes. Disagreements between the Authority and Contractor concerning the meaning, requirements, or performance of this Contract shall be subject to final determination in writing by the Executive Director of the Authority, or his designee, or in accordance with the applicable procedures (if any) required by the State or Federal Government. 12. Access to Books and Records of Contractor Subcontractor. Pursuant to Section 1861(v) (1) of the Social Security Act, and any regulations promulgated there- under, Contractor, shall , upon written request and until the expiration of four years after the furnishing of services pursuant to this Contract, make available to the Secretary of Health and Human Services, the Comptroller General , the Authority, or any of their duly authorized representatives, this Contract and books, documents, and records of Contractor that are necessary to certify the nature and extent of all costs and charges hereunder. Further, if Contractor carries out any of the duties of this Contract through a subcontract, with a value or cost of $10,000 or more over a twelve-month period, such subcontract shall contain a clause to the effect that upon written request and until the expiration of four years after the furnishing of services pursuant to such subcontract, the subcontractor shall make available, to the Secretary, the Comptroller General , the Authority, or any of their duly authorized representa- tives, the subcontract and books, documents, and records of the subcontractor that are necessary to verify the nature and extent of all costs and charges hereunder. This special condition is in addition to any and all other terms regarding the maintenance or retention of records under this Contract and is binding on the heirs, successors, assigns and representatives of Contractor. 13. Reporting Requirements. Pursuant to Government Code Section 7550, Contractor shall include in all documents or written reports completed and submitted to Authority in accordance with this Contract, a separate section listing the numbers and dollar amounts of all contracts and subcontracts relating to the preparation of each such document or written report. This section shall apply only if the pAyment limit under this Contract exceeds $5,000. -2- Housing Authority of the County of Contra Costa SHORT FORM SERVICE CONTRACT Number CDR-G&B-1 (Cont'd.) 14. Indemnification. The Contractor shall defend, indemnify, save, and hold harmless the Authority and its officers and employees from any and all claims, costs and liability for any damages, sickness, death, or injury to persons(s) or property, including without limitation all consequential damages, from any cause whatsoever arising directly or indirectly from or connected with the operations or services of the Contractor or its agents, servants, employees or sub contractors hereunder, save and except claims or litigation arising through the sole negligence or sole willful misconduct of the Authority or its officers or employees. Contractor will reimburse the Authority for any expenditures, including reasonable attorney's fees, the Authority may make by reason of the matters that are the subject of this indemnification, and if requested by the Authority will . defend any claims or litigation to which this indemnification provision applies at the sole cost and. expense of the Contractor. 15. Insurance. During the entire term of this Contract and any extension or modification thereof, the Contractor shall keep in effect insurance policies meeting the folowing insurance requirements. a) Liability Insurance. The Contractor shall provide comprehensive liability insurance, including coverage for owned and non-owned automobiles, with a minimum combined single limit coverage of $500,000 for all damages,:,' including consequential damages, due to bodily injury, sickness or disease, or death to any person or damage to or destruction of property, including the loss of use thereof, arising from each occurrence. Such insurance shall be endorsed to include the Authority and its officers and employees as additional insureds as to all services performed by Contractor under this agreement. Said policies shall constitute primary insurance as to the Authority, the State and Federal Governments, and their officers, agents, and employees, so that other insurance policies held by them or their self-insurance program(s) shall not be required to contribute to any loss covered under the Contractor's insurance policy or policies. b) Workers' Compensation. The Contractor shall provide workers' compensation insurance coverage for its employees. c) -Certificate of Insurance. The Contractor shall provide the Authority with. (a) certificate(s) of insurance evidencing liability and worker's compensation insurance as required herein no later than the effective date of this Contract. If the Contractor should renew the insurance policy(ies) or acquire either a new insurance policy(ies) or amend the coverage afforded through an endorsement to the policy at any time during the term of this Contract, then Contractor shall provide (a) current certificate(s) of insurance. d) Additional Insurance Provisions. The insurance policies provided by the Contractor shall include a provision for thirty (30) days written notice to Authority-before cancellation or material changes of the above specified coverage. -3- Housing Authority of the County of Contra Costa SHORT FORM SERVICE CONTRACT Number CDR-G&G-1 (Cont'd.) 16. Modifications and Amendments. a. General Amendments. This Contract may be modified or amended by a written document executed by the Contractor and the Authority's Board of Commissioners or, after Board approval , by its designee, subject to any required State or Federal approval . 17. Entire Agreement. This Contract contains all the terms and conditions agreed upon by the parties. Except as expressly provided herein, no other understanding, oral or otherwise, regarding the subject matter of this Contract shall be deemed to exist or to bind any of the parties hereto. 18. Signatures. These signatures attest the parties' agreement hereto: HOUSING AUTHORITY OF THE COUNTY CONTRACTOR OF CONTRA COSTA GUBB & BARSHAY By Designee By RICHARD J. MARTINEZ Approved: Executive Director (Designate official capacity) Date Date By Designee [Form approved by County Counsel] -4- Note to Contractor: For corporations (profit or nonprofit) , the contract must be signed by two officers. Signature A must be that of the president or vice- president and Signature B must be that of the secretary or assistant secretary (Civil Code Section 1190.1 and Corporation Code Section 313) . w � I�w offices of , F ` S GUBB & $AR SHAY r c 4 44 Montgomery Street, Suite 1300 Telephone (415)-,781:-6600 San Francisca Galtfom�a,94104 ' Facstm�te (415);781-696/ t _ 5 November-8j<1 993 t f t n _ , y t _ Mr. Robeft,McEwan t Director of Development ; Housing Authority of the .: County of Contra Costa 3133 Estndillo Street .::. . Martinez, CA_94553 , Re: Casa del Rio Senior Housiri Dear Bob This letter constitutes Gubb & Barshay's agreement to provide legal services with -. . :.. respect to the tax,credit syndicatlon`of your Casa del Rxo Senear Housing project The services.we:will p"rovide will consist of.,the followmg 1 . Create the nonprofit'corpora tionthat:will be the general partner and prepare r the,federal and,state tax exemption apprications, ' 2 Create the partnership that well acquire the project, 3 Transfer the unprovementsr'and"prepare.,the gresund Lease to Lease the Land, :` 4 Work with title company and Bank of America (if necessary) regarding the transfer; . S: ` Review financial projections and advise`.economic consultant; : 6.' Structure the terms of the syndication and the financing arrangements in a manner that will maximize the syndication proceeds; 7. Assist in the negotiations of the terms of the syndication'with the investor; . .-t ,,.""'__„ "''ti's . — L ;,^—. 1 �"'^abaJ-,a4 n.;a,`�.. ...L y, r+-p'. k ,t. 7.G¢ `.:.. .{4 'eta`K.e•'ry v. f`xi "'fie"7 I ,. ,.s.r�-•x 9.�'�.' R..T' "� -a `, .,. r + -�,t. `'s,: 4 d. '� i 1 f`Y' �c 2 riA' K.7 3 S- Jt 1, ... _ ;> r t. ,-,.��-0, -- '.'-.,��,,2, -� , � - -�--.-,-�,�'.."!-,-. ` .,,.---. 'i - i t .g � . .:,. - :. , .1.- ,:- - f� .0 F' f ! r - - T .,,V i. "R �. a 1 _ .'. Mr Robert M Ew 333 f November 199 w 11, �}:, r ,�� ��Page 2 , `9 h f .3 f y r ,3 t- rz o t _ ,w -f -s 7 4' 4 7 ..�. t _ ", 4 i 8. - Prepare all of the'documents necessary for,the syndication inctud�ng; but not limited to, a'.partnership;agreement,"subscription documents, and_ari"option to t purchase:_the property by the general partner, , _, - _`, 9: Issue tax and any other,required ap7nians, . ,I.. . . 1.0. ' Prepare state and federal. security filings;.and . 11, Work with lenders re document'modification in a'manner satisfactory -:t��-,. o . . investor. Our,fee for the``syndicmion�will be a fixed fee'of $30,000 with Mission Housing. ` - Investments as, the investor lunited partner; plus costs Tlie fee will be payable upon the close of the syndication: - . :,; - ,s .,i ,', I have'enetosed fwd signed copies• of,flus letter if the terms are acceptable, please ' sign where indicated below Please.return one copy to us and keep the other copy b' r your , . files. , . . ,.. , t a _ : . Please call me if you have any additional questians about aur services or our billing pulley _ .Sincerely, . � cc NA.- I L: GUBB . Agreed and accepted:. , ... HOUSING AUTHORITY OF THE, .. COUNTY OF CONTRA COSTA ': . ' By: . - . - , Its; . - . - "