HomeMy WebLinkAboutCOM 0035.006 2024-2026C. Kimo Alameda, Ph.D.
Mayor
William V. Brilhante, Jr.
Managing Director
Merrick Nishimoto
Deputy Managing Director
County of Hawaii
Kehaulani M. Costa
Housing Administrator
Keiko M. Mercado
Assistant Housing Administrator
Office of Housing and Community Development
1990 Kino`ole Street, Suite 102 • Hilo, Hawaii 96720 • (808) 961-8379 • Fax (808) 961-8685
Existing Housing: (808) 959-4642 • Fax (808) 959-9308
Kona: (808) 323-4300 • Fax (808) 323-4301 �' c-1
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DATE: March 20, 2026 - " -CD
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TO: The Honorable Dr. Holeka Goro Inaba, Council Chair N
FROM: Kehaulani M. Costa, Housing Administrator W
RE: AFFORDABLE HOUSING AGREEMENT FOR A0674 WAIKOLOA
RELATING TO COMM. 35.5: QUARTERLY AFFORDABLE HOUSING
REPORT: OCT. 1, 2025-DEC. 31, 2025
Transmitted herewith is the above -entitled documentation, requested at the March 17, 2026
Communications, Reports, and Council Oversight Committee Meeting.
If you have any questions, please contact Anne Bailey at (808) 323-4303 /
anne.bailey@hawaiicounty.gov.
Mahalo nui,
LLt%� 0
Kehaulani M. Costa, Housing Administrator
Office of Housing & Community Development
KMC/tkk
Att.
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Comm. Na.3s•u
Ref. To:
Ref. Dale MAR 2 3 Z"O
121,
EQUAL HOUSING
OPPORTUNITY
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Pkg 11764339 OFC
STATE OF HAWAII
BUREAU OF CONVEYANCES
RECORDED
April 30, 20218:01 AM
Doc No(s) A - 77900422
/s/ LESLIE T KOBATA
REGISTRAR
LAND COURT REGULAR SYSTEM
(AREA ABOVE RESERVED FOR RECORDING INFORMATION)
After Recordation, Return by ® Mail or ❑ Pick-up Phone#:
FILL IN NAME AND ADDRESS BELOW:
A0674 WATKOLOA, L.P.
2000 E. Fourth Street, Suite 4220
Santa Ana, CA 92705
TGOH 2O2015730 d
TGES 210-20147045 Q
BARBARA PAULO
fte
DOCUMENT CONTAINS 12- PAGES
TITLE OF DOCUMENT: AMENDED AND RESTATED AFFORDABLE
HOUSING AGREEMENT
PARTIES TO DOCUMENT
DEVELOPER: A0674 WAIKOLOA, L.P. a ITawai`i limited partnership, whose
principal place of business and mailing address is 2000 E. Fourth
Street, State 4220, Santa Ana, CA 92705
COUNTY: COUNTY OF HAWAI`I , a municipal corporation ofthe State of
Hawaki, whose principal place of business and mailing address is 25
Aupuni Street, Ililo, M 96720
AFFECTS TAX MAP KEY: (3) 6-8-003:028
AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT
This Amended and Restated Affordable Housing Agreement ("Agreement") is
made and effective this 2$' t day of Agri 1 , 2021 (the "Effective Date") by and
between A0674 Waikoloa, L.P., a Hawaii limited partnership, hereinafter referred to as
"Developer," whose principal place of business and mailing address is 2000 E. Fourth Street,
Suite #220, Santa Ana, CA 92705, and the COUNTY OF HAWAPI, a municipal corporation of the
State of Hawaii, hereinafter referred to as "County", whose principal place of business and mailing
address is 25 Aupuni Street, Hilo, HI 96720.
WHEREAS, the Developer proposes to develop "Kaiaulu O Waikoloa," consisting of 4.6-
acres of real property located at TMK: (3) 6-8-003:028 and further depicted on Exhibit A hereto (the
"Affordable Housing Site") into 60 finished dwelling units; and
WHEREAS, an affordable housing agreement between Luna Loa Development, LLC and the
County was executed on February 4, 2015 and recorded on.April 24, 2015; and
WHEREAS, pursuant to the aforementioned affordable housing agreement, the County
awarded Luna Loa Development, LLC two hundred twelve (212) excess affordable housing credits in
good faith, to ensure that a one hundred (100) percent affordable housing project would be built due to
the critical and immediate need for affordable housing. Thus, this project is not eligible to earn
additional excess affordable housing credits ("Credits"); and
WHEREAS, the Developer purchased the Affordable Housing Site from Luna Loa
Development, LLC and the Developer and the County now wish to amend and restate in its entirety
the affordable housing agreement between Luna Loa Development, LLC and the County; and
WHEREAS, Chapter 11, Article 1 of the Hawaii County Code, relating to Affordable
Housing Policy, authorizes the Mayor, the Office of Housing and Community Development
("OHCD") or their duly authorized representative to enter into this Agreement with the Developer;
and
WHEREAS, the County and the Developer recognize the need for affordable housing in the
County of Hawaii, and the parties hereto have evaluated the various options available to satisfy the
affordable housing goals and policies of the State of Hawaii and the County; and
WHEREAS, although the entitlements for the Property do not require the development
of affordable housing, in consideration of the terms of this Agreement, the Developer desires to
voluntarily construct at least 59 affordable housing rental units restricted to families earning no
more than 60 percent of median income according to the terms of the Low -Income Housing Tax
Credit program pursuant to Section 42 of the Internal Revenue Code ("LIHTC") and one (1)
non -restricted manager's unit ("Project"); and
WHEREAS, the Developer shall complete affordable housing units within five (5) years of
the date of this Agreement, subject to any force majeure events; and
NOW, THEREFORE, in consideration of the mutual covenants in this Agreement, and
pursuant to Chapter 11, Article 1 (Affordable Housing) of the Hawaii County Code ("Chapter I ),
the parties hereby agree as follows:
The rental of the affordable housing rental units shall be made to renters
who qualify under the applicable LIHTC and County of Hawaii affordable
housing eligibility requirements and income qualifications earning no more
than sixty (60) percent of the area median income at the time of initial tenant
and household qualification.
2. The Credits Developer obtained from Luna Loa Development, LLC may be
used as set forth herein by the Developer as of the Effective Date of this Agreement.
The Credits shall have the following attributes:
a. The Credits shall be freely transferable provided they remain subject to the
Hawaii County Code, and approval by the Housing Adminstrator; and
b. The Credits may be used to satisfy the requirement for any type of unit
required not located on the Affordable Housing Site; and
C. The Credits may be applied to satisfy the requirement for any income group.
3. Subject to Section 6, for a period of at least twenty (20) years from the Effective Date,
the Developer shall agree to abide by rental restrictions as required by OHCD.
4. If the efforts of the Developer to complete the design, development and
construction of the affordable rental units are delayed by any of the following
(collectively, "Force Majeure"): (a) war, earthquake, fire, flood, volcanic activity or
other similar natural disaster, or by general or industry -wide strike in the County,
shipping strike in the State of Hawaii or on the continental United States, or (b) the
failure of any Government Agencies to approve or consent to any matter for which
such approval or consent is required within a reasonable time after the Developer has
made a request therefor despite reasonable efforts on the part of the Developer to
obtain such consent or approval, then, and in any such event, the time periods set forth
in this Agreement for completion of the affordable housing units shall be extended by
the number of days that the Developer is delayed as a result of the specified event of
Force Majeure provided the force majeure is the sole cause of the delay, and that
reasonable endeavors are made by Developer.
5. This Agreement shall run with the land and be binding upon and inure to the benefit of
the parties hereto, and their respective successors and assigns. This Agreement shall be
recorded against the land by the Developer at the Bureau of Conveyances or with the
Land Court of the State of Hawaii as applicable, within thirty days after being fully
executed by the parties. The parties agree to take such actions and execute whatever
other documents as are necessary to effectuate and carry out the intent of this
Agreement. This Agreement supersedes all other agreements and understandings
(whether oral or written) made heretofore or contemporaneously herewith by the
parties. The provisions of this Agreement may not be modified, altered or changed
except by another written instrument executed by the parties hereto.
6. Upon the recordation in the Bureau of Conveyances of one or more Declaration(s)
of Restrictive Covenants or similar documents with respect to each of the
Affordable Housing Units and completion of the Affordable Housing Units, a
Release or a Partial Release of this Agreement, as applicable, shall be executed by
the parties hereto and filed by the Developer with the Bureau of Conveyances, or
with the Land Court of the State of Hawaii, as applicable.
Immediately upon termination, lapse, disapproval or revocation (as applicable) of
Developer's plan, or tentative approval, this Agreement shall, without any further
action on the part of any party hereto, terminate and be of no further force or effect.
8. Upon the written request of the Developer, the County shall subordinate its rights
hereunder to the encumbrance of any mortgages and security agreements to any bank
or lender for the site for the purpose of completing construction of the affordable
housing rental units and related infrastructure. The County shall execute any further
documentation or subordination agreement necessary to carry out the provisions of
such subordination.
9. In accordance with Executive Order 142 issued on February 11, 2005 by the Mayor
of the County, during the performance of this Agreement, Developer hereby agrees as
follows:
a. Developer shall comply with all requirements set forth in Federal and State
laws and regulations relative to Title VI of the Civil Rights Act of 1964, as
amended, which provide for non-discrimination in Federally assisted
programs.
b. Developer shall not discriminate against any employee or applicant for
employment because of race, ancestry/national origin, religion, color,
disability, age, marital status, military status, veteran's status, sexual
orientation, lactation, arrest and court record, citizenship, or any other
classification protected by state or federal law. The contractor shall assure that
applicants are employed and that employees are treated during employment
without regard to race, ancestry/national origin, religion, color, disability, age,
marital status, military status, veteran's status, sexual orientation, lactation,
arrest and court record, citizenship, or any other classification protected by
state or federal law. Such action shall include, but not be limited to, the
following: employment, upgrading, demotion, or transfer, recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training. The contractor agrees to post in
conspicuous places notices to be provided by the contracting officer setting
forth the provisions of the nondiscrimination clause.
C. Developer shall in all solicitations or advertisements for employees placed by
or on behalf of Developer, state that all qualified applicants shall receive
consideration for employment without regard to race, ancestry/national origin,
religion, color, disability, age, marital status, military status, veteran's status,
sexual orientation, lactation, arrest and court.record, citizenship, or any other
classification protected by state or federal law.
d. In the event of Developer's noncompliance with the nondiscrimination clauses
of this contract, subject to such reasonable cure period as is necessary, this
contract may be canceled or suspended in whole or in part and the contractor
may be declared ineligible for further County contracts until such time that the
contractor by satisfactory evidence, in good faith, ceases such discriminatory
practices or procedures.
e. Developer who subcontracts any portion of the contract shall assure the
County that such subcontractor shall abide by the nondiscrimination
provisions stated herein and agrees that any subcontractor who is found in
violation of such provisions shall subject the principal contractor's contract
with the County to be terminated or suspended pursuant to subsection (d)
above, subject to, such reasonable cure period as is necessary.
f. Developer may direct any bidder, prospective contractor, or subcontractor
to submit a statement in writing signed by an authorized officer, agent, or
employee of the contracting party that the signer's practices and policies
do not discriminate on the grounds of race, ancestry/national origin,
religion, color, disability, age, marital status, military status, veteran's
status, sexual orientation, lactation, arrest and court record, citizenship, or
any other classification protected by state or federal law, and that the
terms and conditions of employment under the proposed contract shall be
in accordance with the purposes and provisions stated herein.
10. This instrument may be executed in two or more counterparts, and when all
counterparts have been executed, each counterpart shall be considered an original
but when assembled shall constitute one and the same instrument, and shall have the
same force and effect as though all of the signatories had executed a single signature
page. Any unexecuted duplicate pages may be omitted from the assembled original
document.
11. The parties agree that no party shall be deemed to be the drafter of this Agreement,
and further that in the event this Agreement is ever construed by a court of law, such
court shall not construe this Agreement or any provisions of this Agreement against
any party as the drafter of this Agreement.
12. This Agreement shall be governed and construed in accordance with the laws of the
State of Hawaii.
IN WITNESS WHEREOF, the parties have executed these presents effective as of the
Effective Date.
Ii 6 u ul U) a I : • 1? Rs
Susan K. K
Housing Adm' r
APPROVED AS TO FORM
AND LEGALITY:
.2 YA��
Nam
Deputy Corporation Counsel
"DEVELOPER"
A0674 Waikoloa, L.P., a Hawaii limited
partnership,
A0674 Waikoloa Holdings, LLC
a Hawaii limited liability company,
General Partner
By:
Its: Manager
l
By: A0674 Waikoloa Admin Holdings LLC,
a Hawaii limited liability company,
Its: Co -General Partner
By:
Name:(
Its: Manager
"COUNTY":
COUNTY OF HAWAI`I,
a municipal corporation of th State of Hawaii
By:
Name: I FEE LORD
Its: Map *Rnirecto*
STATE OF HAWAI`I )
) SS:
COUNTY OF HAWAI`I )
On , before me appeared
me personally known, who, being by me duly sworn, did say that
is the
A0674 WAIKOLOA, L.P. a
instrument was signed in behalf of the company by authority
acknowledged sa
said company.
Doe. Date:
Notary Na
Doc. Des(;
to
`i limited partnership; that the
Board of Directors and
to be the free act and deed of
Print or Type Name
Notary Public, State of Hawaii
My commission expires:
NOTARY CERTIFICATION
Amended and Restated
Date
No. of Pages:
Circuit:
ACKNOWLEDGMENT
.........................................................................
A notary.public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of ORANGE} ss.
On April 1% UI-I before me, Cesar Delnado, Notary Public, personally
appeared is who proved to me on the basis of satisfactory
evidence to be the personWhl5se name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and that by
his signature on the instrument the person or the entity upon behalf of which the person
acted, executed the instrument.
I certify u E LTY OF PERJURY under the laws of the State of California that the
forego' oar oraah true and correct.
hand a6d official seal.
CESAR DELGADO
I.JL�
C( f�� Notary Public. California
� Orage County
Commission R 2334228
Sty Comm. Expires Sep 23, 2024
STATE OF HAWAI`I )
) SS:
COUNTY OF HAWAI`I )
On I before me appeared
me personally known, who, being by me duly sworn, did say that
to
is the of A0674 WAIKOLOA, L.P. a Hawaii limited partnership; that the
instrument was signed in behalf of the company by authority of its Board of Directors and
acknowledged said instrument to be the free act and deed of
said company.
Signature
Print or Type Name
Notary Public, State of Hawaii
My commission expires:
Doe. Date:
Notary Name:
Doc. Description: Amended and Restated
Affordable Housing Agreement
TMK: (3) 6-8-003:028
No. of Pages:
Circuit:
ACKNOWLEDGMENT
.........................................................................
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of ORANGE} ss.
On Apc%k Lpt gO-D3-1 before me, Cesar Delgado, Notary Public, personally
appeared Za,f i A 11 . 'VL(k Ll24 . who proved to me on the basis of satisfactory
evidence to be the persona w osb name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and that by
his signature on the instrument the person or the entity upon behalf of which the person
acted, executed the instrument.
I certify PENA�TY OF PERJURY under the laws of the State of California that the
foreq ' g pa agraph i true and correct.
my hand anq official
q
CESAN DELGADO
1111 Notary Public - California
Orange County_
Commission B 2334229
*my Comm. Expires Sep 23. 2024
iseaq
STATE OF HAWAI`I
SS.
COUNTY OF HAWAI`I
On this 23rd day of April, 2021, before me personally appeared LEE E. LORD, to me
personally known, who, being by me duly sworn, did say that he is the Managing Director of the
County of Hawaii, a municipal corporation of the State of Hawaii, that the foregoing
instrument was signed on behalf of the County of Hawaii by authority given to said Mayor of
the County of Hawaii by Sections 5-1.3 and 13-13 of the County Charter, County of Hawaii
(2018), as amended, and assigned by the Mayor to the Managing Director pursuant to Section 6-
1.3(h) of the County Charter; and said LEE E. LORD acknowledged said instrument to be the
free act and deed of said County of Hawaii.
`jam i r
Signature
AMBER K.S.KEPOO
J %,!'Lr13 �` %,� Print or Type Name
i•... ...
nn„O110 Notary Public, State of Hawaii
My Commission Expires: 04/01/22
NOTARY CERTIFICATION
Doc. Date: 04/23/21
NotaryName: AMBER K.S. KEPOO
Amended and Restated
Affordable Housing
Doc. Description: Agreement
Notary Signature
,S. -Ve, ,i u4/23/21
Date
No. of Pages: 11
Third Circuit
Exhibit A to
Amended and Restated Affordable Housing Agreement
(Legal Description Affordable Housing Site)
All of that certain parcel of land situate at Waikoloa,
District of South Kohala, Island and County of Hawaii,
State of Hawaii, being LOT 1 of the "WAIKOLOA RM 1.5 -
UNIT 1", as shown on File Plan Number 1378, filed in the
Bureau of Conveyances of the State of Hawaii, and
containing an area of 4.600 acres, more or less.
BEING THE PREMISES ACQUIRED BY LIMITED WARRANTY DEED
GRANTOR LUNA LOA DEVELOPMENTS LLC, a Hawaii
limited liability company
GRANTEE K00674 WAIKOLOA, L.P., a Hawaii
Limited Partnership
DATED April 21, 2015
RECORDED Document No. A-55920521
I