Item 3 - 1st Amendment to Exclusive Negotiating Rights Agreement w Wakeland Housing & Development Corp for Monte Vista Affordable Housing Development ProjectFIRST 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 First Amendment to Exclusive Negotiating Rights Agreement ("First Amendment") is entered into as of this 2nd day of August, 2023 ("First 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 NegotiatingRights Agreement dated August 17, 2022 (the "ENRA"). Unless otherwise defined in this First Amendment, capitalized terms shall have the meanings ascribed to them in the ENRA.
B.Pursuant to Section l.2(A.) of ARTICLE I. of the ENRA, the initial Term (orNegotiating Period) of the ENRA was a period of two-hundred seventy (270) calendar days commencing on the Effective Date of the ENRA, August 17, 2022, and expiring May 14, 2023 ("Initial Term"). Section l.2(A.) of the ENRA states that the Term (or Negotiating Period) may
be extended, in each case, by mutual written agreement of the Parties, for up to two (2) 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 ODA has been made during the initial two-hundred seventy (270)
day negotiating period to merit such an extension.
C.Pursuant to Section 1.2(A.) of the ENRA, the Parties extended twice the Term (orthe Negotiating Period) of the ENRA as follows: (I) 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"), and (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").
D.In light of the impending expiration of the Second Extension Term of the ENRAand 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 First Amendment to allow for up to four (4) additional potential extensions of the Term (or Negotiating Period) of the ENRA
for a period of forty-five (45) calendar days for each extension, pursuant to the terms of Section l .2(A.) of ARTICLE 1. of the ENRA as amended by this First Amendment. Except for the change
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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 First Amendment and the terms contained in the ENRA,
the terms of this First Amendment shall govern, prevail and control.
(b) Entire Agreement. The ENRA, including all Exhibits attached thereto, as
amended by this First 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 First 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 First Amendment.
( d) Applicable Law; Venue. The laws of the State of California shall govern
the interpretation and enforcement of this First 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 First 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 First 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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to Section l.2(A.) of ARTICLE I. of the ENRA and other specified clarifying changes agreed to
by the Parties as described in this First 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 First 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 FirstAmendment.
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 body, corporate and politic, and Wakeland Housing and Development Corporation, a California nonprofit corporation, and dated August 2, 2023, including all Exhibits attached thereto.
(b)Modification to the Term "DOA" in the ENRA. All references to
"Disposition and Development Agreement ("DDA")" or "DOA" in the ENRA are hereby deleted in their entirety and replaced with "Affordable Housing Agreement ("AHA")" or "AHA".
(c)Modification to Second Sentence of Section l.2(A.) of ARTICLE I. 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 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."
(d)Deletion of Section 2.15 of ARTICLE 2. of the ENRA. Section 2.15 ofARTICLE 2. of the ENRA is hereby deleted in its entirety.
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IN WITNESS WHEREOF, the Parties hereto have caused this First 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 DEVELOPMENT HOUSING AND CORPORATION, a California nonprofit corporation *see notes belowBy: rv-t�(fa,v.�d Name: Peter Armstrong Title: VP of Real Estate Development Dated: July 20, 2023 By: //vaA,,'--f0a..L,�._Na�el: Joan Edelman Title: Chief Financial Officer Dated: July 20, 2023 *Notes: In accordance with CaliforniaCorporations Code Section 313, this documentmust be executed by the Corporation's ChiefExecutive Officer, President or Vice-President,on the one hand, and the Corporations' ChiefFinancial Officer, Treasurer, AssistantTreasurer or Secretary on the other hand.Page 4 of 4 First Amendment to ENRA v2 6 of 6 August 1, 2023, Item #3