is confident all negotiated terms and approvals can be successfully finalized and brought to the Authority Board and the City Council for consideration within the prescribed timeline of the Second Amendment.
Environmental Review:
This item is not subject to California Environmental Quality Act review.
Fiscal Impact:
No fiscal impact is associated with approval of this amendment.
Public Notification:
A copy of this report was provided to Wakeland Housing and Development Corporation.
Attachments:
A.Second Amendment to Exclusive Negotiating Rights Agreement (Monte Vista Affordable Housing Development)
Reviewed/Approved By:
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Assistant City Manager
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Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
Chris Hazeltine
City Manager
February 6, 2024, Item #4
SECOND AMENDMENT TO
EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT
BY AND BETWEEN
THE POWAY HOUSING AUTHORITY AND WAKELAND HOUSING AND
DEVELOPMENT CORPORATION
MONTE VISTA HOUSING DEVELOPMENT
12674 Monte Vista Road, Poway CA 92064
This Second Amendment to Exclusive Negotiating Rights Agreement ("Second Amendment") is entered into as of this 6th day of February, 2024 ("Second Amendment Effective Date"), by and between the POWAY HOUSING AUTHORITY, a public body, corporate and politic ("Authority"), and WAKELAND HOUSING AND DEVELOPMENT CORPORATION, a California nonprofit corporation ("Developer"), each a "Party" and collectively the "Parties", on the basis of the following facts:
RECITALS
A. The Authority and Developer have entered into that certain Exclusive Negotiating Rights Agreement dated August 17, 2022, as amended by that certain First Amendment to Exclusive Negotiating Rights Agreement dated August 2, 2023 (collectively, the "ENRA").
Unless otherwise defined in this Second Amendment, capitalized terms shall have the meanings ascribed to them in the ENRA.
B. Pursuant to Section l.2(A.) of ARTICLE 1. of the ENRA, the initial Term (or Negotiating Period) of the ENRA was a period of two-hundred seventy (270) calendar days commencing on the Effective Date of the Exclusive Negotiating Rights Agreement, August 17, 2022, and expiring May 14, 2023 ("Initial Term"). Section l.2(A.) of the ENRA states that the Negotiating Period may be extended, in each case, by mutual written agreement of the Parties, for up to six (6) additional forty-five (45) calendar day periods, and on the Authority's behalf by the Executive Director of the Authority if, in the Executive Director's sole discretion and determination, sufficient progress toward a mutually acceptable AHA, Ground Lease and related documents has been made during the initial two-hundred seventy (270) day negotiating period and during the then current Negotiating Period to merit such an extension.
C. Pursuant to Section l.2(A.) of the ENRA, the Parties extended six times the Term ( or the Negotiating Period) of the ENRA as follows: (1) by letter agreement dated March 20, 2023, extending the Term of the ENRA for the period commencing May 15, 2023 and expiring June 29, 2023 ("First Extension Term"); (2) by letter agreement dated June 2, 2023, extending the Term of the ENRA for the period commencing June 30, 2023 and expiring August 13, 2023 ("Second Extension Term"); (3) by letter agreement dated September 5, 2023, extending the Term of the ENRA for the period commencing August 13, 2023 and expiring September 26, 2023 ("Third Extension Term"); (4) by letter agreement dated September 5, 2023, extending the Term of the ENRA for the period commencing September 27, 2023 and expiring November 10, 2023 ("Fourth Extension Term"); (5) by letter agreement dated November 1, 2023, extending the Term of the ENRA for the period commencing November 11, 2023 and expiring December 25, 2023 ("Fifth 3 of7
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February 6, 2024, Item #4
Extension Term"); and (6) by letter agreement dated December 20, 2023, extending the Term of the ENRA for the period commencing December 26, 2023 and expiring February 8, 2024 ("Sixth Extension Term").
D. In light of the impending expiration of the Sixth Extension Term of the ENRA and in light of the continued work on behalf of both Parties toward plans and entitlements, an acceptable affordable housing agreement for the potential Project, and an acceptable ground lease of the Site, the Parties now mutually desire to amend the ENRA by this Second Amendment to allow for up to two (2) additional potential extensions of the Term ( or Negotiating Period) of the ENRA for a period of sixty (60) calendar days for each extension, pursuant to the terms of Section l.2(A.) of ARTICLE 1. of the ENRA as amended by this Second Amendment.
E. Additionally, Section l.l(B.) of ARTICLE 1. and Section 2.3 of ARTICLE 2. of the ENRA and the Preliminary Schedule of Performance attached as Exhibit "C" to the ENRA requires that the City approvals and entitlements are required to be obtained by Developer on the same date or prior to the date of consideration and approval of an Affordable Housing Agreement.
To provide the Authority with flexibility on the sequence of such approvals, the Parties now mutually desire to amend the ENRA by this Second Amendment to provide discretion to the Executive Director of the Authority to allow for approval of the Affordable Housing Agreement prior to the City approvals and entitlements, on the terms and conditions agreed to by the Executive Director.
F. Except for the change to Section l.2(A.) of ARTICLE 1., to Section l.l(B.) of ARTICLE 1. and Section 2.3 of ARTICLE 2. of the ENRA, and to the Preliminary Schedule of Performance attached as Exhibit "C" to the ENRA agreed to by the Parties as described in this Second Amendment, all terms and conditions of the ENRA, including all Exhibits attached thereto, shall remain unmodified and in full force and effect.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing Recitals, the mutual covenants and agreements contained in this Second Amendment, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Authority and Developer hereby agree to amend the ENRA as follows:
1. Recitals. The foregoing Recitals are made a substantive part of this Second Amendment.
2. Modifications to the ENRA.
(a) Modification to the Term "this Agreement" in the ENRA. All references to "this Agreement" in the ENRA shall mean and include the Exclusive Negotiating Rights Agreement entered into by and between the Poway Housing Authority, a public body, corporate and politic, and Wakeland Housing and Development Corporation, a California nonprofit corporation, and dated August 17, 2022, as amended by the First Amendment to Exclusive Negotiating Rights Agreement entered into by and between the Poway Housing Authority, a public 4of7 Page 2 of 5
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February 6, 2024, Item #4
body, corporate and politic, and Wakeland Housing and Development Corporation, a California nonprofit corporation, and dated August 2, 2023, and as further amended by the Second Amendment to Exclusive Negotiating Rights Agreement entered into by and between the Poway Housing Authority, a public body, corporate and politic, and Wakeland Housing and Development Corporation, a California nonprofit corporation, and dated February 6, 2024, including all Exhibits attached thereto.
(b) Modification to Second Sentence of Section 1.2(A.) of AR TI CLE 1. of the ENRA. The second sentence of Section 1.2(A.) of ARTICLE 1. of the ENRA is hereby deleted in its entirety and replaced with the following:
"The Negotiating Period may be extended, in each case, by mutual written agreement of the Parties, for up to six (6) additional forty-five (45) calendar day periods and then for up to two (2) additional sixty (60) calendar day periods, and on the Authority's behalf by the Executive Director of the Authority ("Executive Director") if, in the Executive Director's sole discretion and determination, sufficient progress toward a mutually acceptable AHA, Ground Lease and related documents·has been made during the initial two-hundred seventy (270) day negotiating period and during the then current Negotiating Period to merit such an extension."
(c) Modification to (4) of Section 1.l(B.) of ARTICLE 1. of the ENRA, to Section 2.3 of ARTICLE 2. of the ENRA, and to the Preliminary Schedule of Performance attached as Exhibit "C" to the ENRA. In all cases where the provisions of the ENRA require that Developer shall obtain the City approvals and entitlements on the same date or prior to the date of consideration and approval of an Affordable Housing Agreement, such provisions are hereby amended to include and provide discretion to the Executive Director of the Authority, in his/her sole and absolute discretion, to allow for approval of the Affordable Housing Agreement prior to the City approvals and entitlements, on the terms and conditions agreed to by the Executive Director.
3. Miscellaneous.
(a) Effect of Second Amendment. Except to the extent the ENRA is amended by this Second Amendment, the remaining terms and conditions of the ENRA, including all Exhibits attached thereto, shall remain unmodified and in full force and effect. In the event of a conflict between any of the terms contained in this Second Amendment and the terms contained in the ENRA, the terms of this Second Amendment shall govern, prevail and control. (b) Entire Agreement. The ENRA, including all Exhibits attached thereto, as amended by this Second Amendment, embody the entire understanding between the Authority and Developer with respect to their subject matter and can be changed only by an instrument in writing signed by the Authority and Developer.
( c) Counterparts. This Second Amendment may be executed in one or more counterparts, each of which shall be deemed an original but all of which, taken together, shall constitute one in the same Second Amendment.
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( d) Applicable Law; Venue. The laws of the State of California shall govern the interpretation and enforcement of this Second Amendment, without giving effect to its principles of conflicts of laws. Should litigation occur, such legal actions must be instituted in the Superior Court of the County of San Diego, State of California, in any other appropriate court of that county, or in the United States District Court for the Southern District of California, and both Parties irrevocably consent to the personal jurisdiction of such courts. (e) Attorneys' Fees. If an action or court proceeding is brought by a Party against the other Party under this Second Amendment, whether for interpretation, enforcement or otherwise, the prevailing Party in any such action or proceeding shall be entitled to recover attorneys' fees and costs from the other Party.
(f) Authority. All individuals signing this Second Amendment for a Party which is a corporation, limited liability company, partnership or other legal entity, or signing under a power of attorney, or as a trustee, guardian, conservator, or in any other legal capacity, covenant to the Authority that they have the necessary capacity and authority to act for, sign and bind the respective entity or principal on whose behalf they are signing. [SIGNATURES BEGIN ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties hereto have caused this Second Amendment to be executed as of the dates set forth opposite their signatures below. "AUTHORITY"
POWAY HOUSING AUTHORITY, a public
body, corporate and politic
By:---------------
Chris Hazeltine Dated
Executive Director
ATTEST:
By: ____________ _
Carrie Gallagher, CMC
City Clerk
APPROVED AS TO FORM:
By:----------------
Alan Fenstermacher
General Counsel
KANE, BALLMER & BERKMAN
By: ---------------Kendall D. Levan
Authority Special Counsel
"DEVELOPER"
WAKELAND HOUSING AND
DEVELOPMENT CORPORATION, a
California nonprofit corporation
*see notes below
By: ---------------Name: --------------Title: --------------Dated: -------- By:---------------
Name: --------------Title: --------------Dated: -------- *Notes: In accordance with California
Corporations Code Section 313, this document
must be executed by the Corporation's Chief
Executive Officer, President or Vice-President,
on the one hand, and the Corporations' Chief
Financial Officer, Treasurer, Assistant
Treasurer or Secretary on the other hand.
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