AMENDMENT NO. 7
TO THE EXCLUSIVE NEGOTIating RIGHTS AGREEMENT BETWEEN
THE CITY OF SANTA CLARA, CALIFORNIA
AND HABITAT FOR HUMANITY EAST BAY/SILICON VALLEY, INC.
PREAMBLE
This agreement (“Amendment No. 7”) is entered into on this 31st day of December, 2023, (“Effective Date”) by and between the City of Santa Clara, a chartered California municipal corporation (“City”), and Habitat for Humanity East Bay/Silicon Valley, Inc., a California Non-Profit Corporation (“Developer”). City and Developer may be referred to individually as a “Party” or collectively as the “Parties” or the “Parties to this Agreement.”
RECITALS
The City is the owner of a .69-acre parcel of real property in the City of Santa Clara located at 3575 De La Cruz Boulevard (APN 101-15-049) (the “Property”). The Developer has proposed to develop the Property with 15 units of affordable ownership housing, including mixed-income townhomes and flats (the “Project”). The entire project is proposed to be affordable to households with income between 50% and 120% of Area Median Income (AMI).
The Parties previously entered into an agreement entitled “Exclusive Negotiating Rights Agreement” dated April 9, 2019 and fully executed on June 17, 2019 (the “Original Agreement”). The Original Agreement provided a Negotiating Period of 18 months, which expired on December 17, 2020.
The Original Agreement established procedures and standards for the negotiation by the City and the Developer of a Disposition and Development Agreement (the “DDA”) pursuant to which the Developer will conduct specified development activities related to the Property.
The Parties previously entered into an agreement entitled “Amendment No. 1 to the Exclusive Negotiating Rights Agreement” dated December 17, 2020 (First Amendment). The First Amendment to Agreement provided a six (6) month extension which expired on June 17, 2021.
The Parties previously entered into an agreement entitled “Amendment No. 2 to the Exclusive Negotiating Rights Agreement” dated July 12, 2021 (Second Amendment). The Second Amendment to Agreement provided a six (6) month extension which expired on December 30, 2021.
The Parties previously entered into an agreement entitled “Amendment No. 3 to the Exclusive Negotiating Rights Agreement” dated December 20, 2021 (Third Amendment). The Third Amendment to Agreement provided a six (6) month extension which expired on June 30, 2022.
The Parties previously entered into an agreement entitled “Amendment No. 4 to the Exclusive Negotiating Rights Agreement” dated October 11, 2022 (Fourth Amendment). The Fourth Amendment to Agreement provided a six (6) month extension which expired on December 30, 2022.
The Parties previously entered into an agreement entitled “Amendment No. 5 to the Exclusive Negotiating Rights Agreement” dated March 20, 2023 (Fifth Amendment). The Fifth Amendment to Agreement provided a six (6) month extension which expired on June 30, 2023.
The Parties previously entered into an agreement entitled “Amendment No. 6 to the Exclusive Negotiating Rights Agreement” dated June 16, 2023 (Sixth Amendment). The Sixth Amendment to Agreement provided a six (6) month extension which shall expire on December 30, 2023.
Developer has requested an extension of an ENA in order to complete certain tasks before a disposition and development agreement can be presented to the City Council. This Seventh Amendment to Agreement provides a twelve (12) month extension which is set to expire on December 30, 2024.
NOW, THEREFORE, the Parties agree as follows:
Amendment terms and conditions
Section 2 of the Sixth Amendment Agreement, entitled “Negotiating Period,” is hereby deleted and replaced in its entirety to read as follows:
“2. Negotiating Period. The negotiating period (the "Negotiating Period") under this Agreement shall be twelve (12) months, commencing on the date this Agreement is fully executed, for a Negotiating Period of December 31, 2023 through December 30, 2024. The Parties mutually agreed to extend the negotiating period for twelve (12) months, commencing on December 17, 2020 and terminating at 11:59 p.m. on June 17, 2021. The Parties mutually agreed to a second extension of the negotiating period for six (6) months, terminating at 11:59 p.m. on December 30, 2021. The Parties mutually agreed to a third extension of the negotiating period for six (6) months, terminating at 11:59 p.m. on June 30, 2022. The Parties mutually agreed to a fourth extension of the negotiating period for six (6) months, terminating at 11:59 p.m. on December 30, 2022. The Parties mutually agreed to a fifth extension of the negotiating period for six (6) months, commencing on December 30, 2022 and terminating at 11:59 p.m. on June 30, 2023. The Parties mutually agreed to a sixth extension of the negotiating period for six (6) months terminating at 11:59 a.m. on December 30, 2023. The Parties mutually agree to this seventh extension of the negotiating period for twelve (12) months, commencing on December 31, 2023 and terminating at 11:59 p.m. on December 30, 2024.
In the event that the Developer is not ready to enter into a DDA by December 30, 2024, and provided that the City determines that good cause exists in its reasonable discretion, an eighth non-automatic twelve-month extension extending the ENA from December 31, 2024 to December 30, 2025 may be granted with the written consent of the Developer. If, after an eighth non-automatic extension is granted by the City, and a DDA has not been executed by the City and the Developer (or its affiliate) by December 31, 2025, and no additional extension has been approved through an additional amendment to the eighth Agreement, then the eighth Agreement shall terminate and no party shall have any further rights or obligations under the eighth Agreement, except as set forth in Section 4 and Section 11. If a DDA is executed by the City and the Developer (or its affiliate), then, upon such execution, the eighth Agreement shall terminate, and all rights and obligations of the Parties shall be as set forth in the executed DDA.” Except as set forth herein, all other terms and conditions of the Original Agreement shall remain in full force and effect. In case of a conflict in the terms of the Original Agreement, Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4, Amendment No. 5, Amendment No. 6 or this Amendment No. 7, the provisions of this Amendment No. 7 shall control.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
The Parties acknowledge and accept the terms and conditions of this Amendment No. 7 as evidenced by the following signatures of their duly authorized representatives.
CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
Approved as to Form:
Dated:
Glen R. Googins
City Attorney
Jōvan Grogan
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
“City”
HABITAT FOR HUMANITY EAST BAY/SILICON VALLEY, INC.
a California non-profit corporation
Dated: _______________________________
________________________________
Janice Jensen
President & CEO
2619 Broadway
Oakland, CA 94612
[email protected]
Telephone: (510) 251-6304
Fax: (510) 251-6309
“DEVELOPER”
Amendment No. 7 to Habitat ENA Page 1 of 4
Amendment No. 1 to Agreement/Keyser Marston Associates, Inc. Page 1 of 4 Rev. 05/18/10; Typed: *insert date typed
IDS Insurance No. _________________