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AGENDA BILL Agenda Item No. 7(A) Date: May 21, 2013 To: El Cerrito City Council From: Hilde Myall, Housing Program Manager Subject: Approval of an Extension to the Exclusive Negotiating Rights Agreement with Eden Housing Inc. for City Housing Property at 10848 and 10860 San Pablo Avenue ACTION REQUESTED Adopt a resolution authorizing the City Manager to extend the Exclusive Negotiating Rights Agreement (ENRA) with Eden Housing Inc. (Developer) for negotiation of a Disposition and Development Agreement (DDA) of an affordable housing project (Project) at 10848-10860 San Pablo Avenue to February 8, 2014. BACKGROUND Through a developer solicitation process, on October 18, 2010 the El Cerrito Redevelopment Agency Board (Agency Board) selected Eden Housing, Inc. as Developer for the property at 10848 and 10860 San Pablo Avenue (Property) and authorized the Executive Director to negotiate an ENRA. The Property was originally purchased, pursuant to Agency Board Resolution No. 576, in 2009 for the purpose of increasing, improving and preserving the community’s supply of affordable housing. On February 22, 2011, the Agency Board adopted Resolution No. 605 authorizing the Agency’s Executive Director to execute the ENRA with Eden Housing, Inc. for the negotiation of a DDA for the development of an affordable residential mixed-use project on the Property. The ENRA was executed on March 8, 2011. On March 7, 2011, the Agency Board adopted Resolution No. 606 authorizing the execution of a predevelopment loan agreement for $350,000 from the Low and Moderate Income Housing Fund with Eden Housing Inc. for the Project (the “Housing Loan”). On March 22, 2011, pursuant to Agency Board Resolution No. 613 and City Council Resolution No. 2011-24, the Property was conveyed to the City through a Property Conveyance Agreement. The ENRA was assigned to the City through the Property Conveyance Agreement. On January 17, 2012, the City Council adopted Resolution No. 2012-04 to retain the housing assets and functions previously performed by the Redevelopment Agency and becoming the housing successor to the El Cerrito Redevelopment Agency. Pursuant to ---PAGE BREAK--- Agenda Item No. 7(A) Assembly Bill x1 26 (Dissolution Act), the Redevelopment Agency was dissolved as of February 1, 2012. Upon dissolution, all housing assets, less the unencumbered housing balance, and obligations of the former Agency were transferred to the City as housing successor. In March 2012, as permitted pursuant to Section 1.2 of the ENRA, the City Manager extended the negotiating period of the ENRA by 90 days. On May 15, 2012, the City Council adopted Resolution No. 2012-35 extending the Exclusive Negotiating Rights Agreement (ENRA) with Eden Housing through June 8, 2013. Extension of the ENRA allowed the City time to resolve the property asset transfer issues related to the dissolution of the former Redevelopment Agency. Pursuant to the Dissolution Act, the City of El Cerrito submitted a Housing Assets Transfer Form to the California Department of Finance (DOF). In September 2012, the City received a letter from the DOF indicating that they had reviewed the Housing Assets Transfer Form and did not object to any assets or transfers of assets. Relying upon that approval and discussions with reputable title companies, the Developer has indicated that they are sufficiently comfortable with the condition of title for the Property to proceed with entitlements work for the project. ANALYSIS The ENRA establishes procedures and standards for the negotiation of the DDA including achievement of certain predevelopment tasks to determine the feasibility of the development. The ENRA does not obligate either party to acquire or convey any property, grant the developer the right, entitlement or environmental approvals to develop the property, or obligate the parties to undertake any activities or costs, except for the preliminary analysis and negotiations contemplated in the ENRA. Negotiation of an ENRA does not commit the Agency to award funds nor to pay any cost incurred by the developer in preparing the submittal or in negotiating the ENRA. Current Development Proposal Eden Housing’s original proposal was for a mixed-use residential development consisting of approximately 64 rental units affordable to very low- and low-income senior households and approximately 4,650 square feet of commercial space for the Samuel Merritt College Clinic and a small retail space. After extensive input from staff, completion of an additional historic resource evaluation, several community meetings and a conceptual review with the City’s Design Review Board, the Developer prepared a revised design and submitted a revised proposal in December 2011 to the City’s Housing and Planning divisions. The revised proposal is for a mixed-use residential development consisting of approximately 63 rental units (62 affordable units for seniors and 1 manager’s unit), approximately 1,780 square feet of commercial space for the Samuel Merritt College Clinic, approximately 1,000 square feet of retail space, and retaining as a historic cultural resource the Mabuchi Florist Shop, which is the small stone-faced structure facing San Pablo Avenue. ---PAGE BREAK--- Agenda Item No. 7(A) Financing Since the execution of the Housing Loan in March 2011, Eden has drawn on $40,000 of the loan for architectural services and environmental analyses. The loan agreement permits the Developer to access an additional $60,000 prior to execution of a DDA to pay for entitlement-related costs. The City’s Housing Fund does not currently have the funds available to disburse further loan proceeds under the loan. The undisbursed loan balance is claimed on the Successor Agency Recognized Obligation Payment Schedule (ROPS) and the Successor Agency is seeking approval from the State Department of Finance to collect those funds from the County’s Property Tax Trust Fund. Entitlements and Environmental Review Currently, the Developer is proceeding with environmental review and entitlements- related work. In February 2013, Eden Housing submitted the fees required by the City to prepare the documentation required by the California Environmental Quality Act (“CEQA”) for consideration of approval of project entitlements and the DDA. After conducting a request for proposals process, City Planning Division staff has retained an environmental consultant for CEQA environmental review. The City intends to prepare an Environmental Impact Report (EIR) for the project. In accordance with CEQA guidelines, the City has prepared a Notice of Preparation to provide responsible agencies and other interested parties with sufficient information describing the proposal and its potential environmental effects. As specified by the CEQA guidelines, this Notice of Preparation was circulated for a 30- day review period ending May 13, 2013. On Monday, April 22, 2013, during the Notice of Preparation period, the City Planning Division held a scoping meeting for the purpose of soliciting public input as to the appropriate scope and content of the EIR. Requested ENRA Extension With the successful resolution of the property title issues related to the Dissolution Act, the Developer has been proactive in resuming entitlements and environmental review work for the Project. Staff recommends that Eden Housing has made satisfactory progress under the ENRA to merit an extension. The requested extension will allow time for the negotiation of the DDA, and completion of environmental review and design and planning work associated with entitlements that is currently underway. Staff will return to the City Council upon negotiation of a DDA and completion of CEQA for the project for consideration of the DDA. The estimated timeframe for completion of environmental review, the entitlement process and DDA negotiations is approximately 6 to 9 months. Staff anticipates bringing these items forward for Design Review Board, Planning Commission and City Council consideration in Fall 2013. The Developer intends to apply in December 2013 for federal housing funds from Contra Costa County and is seeking to have project approvals in place at that time. ---PAGE BREAK--- Agenda Item No. 7(A) ENVIRONMENTAL REVIEW The extension of the ENRA does not constitute a project pursuant to the California Environmental Quality Act (CEQA) and does not commit the City to proceed with the development at this phase. FINANCIAL CONSIDERATIONS The financial impact of this item is neutral as the proposed City Council action does not · commit funds nor obligate the City to commit funds in the future. LEGAL CONSIDERATIONS The Counsel to the City as housing successor has reviewed this report and the attachments. Reviewed by: Scott Hanin, City Manager Attachments: 1. Resolution Authorizing the Extension of the 'Exclusion Negotiating Rights Agreement 2. Exclusive Negotiating Rights Agreement between the Agency and Eden Housing, Inc. 3. Draft Letter Agreement Extending the Exclusive Negotiating Rights Agreement to February 8, 2014 ---PAGE BREAK--- Agenda Item No. 7(A) Attachment 1 Page 1 of 3 RESOLUTION NO. 2013-XX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EL CERRITO AS HOUSING SUCCESSOR TO THE EL CERRITO REDEVELOPMENT AGENCY (THE “CITY”) AUTHORIZING THE CITY MANAGER TO EXTEND THE EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT WITH EDEN HOUSING, INC. FOR NEGOTIATION OF A DISPOSITION AND DEVELOPMENT AGREEMENT FOR THE PROPERTY AT 10860 AND 10848 SAN PABLO AVENUE WHEREAS, the former El Cerrito Redevelopment Agency (the “Agency”) and City of El Cerrito have encouraged redevelopment in specific portions of the El Cerrito Redevelopment Project Area in accordance with the goals and objectives of the City of El Cerrito Redevelopment Plan as amended; and WHEREAS, the Agency acquired 10860 and 10848 San Pablo Avenue (the “Property”) for the purposes of increasing, improving and preserving the community’s supply of low- and moderate-income housing and, in part, used Housing Fund monies to purchase the Property pursuant to California Health and Safety Code §33334.2; and WHEREAS, the Agency issued a request for qualifications and proposals from developers to solicit interest in redeveloping the Property as a residential mixed-use development including affordable housing consistent with California Health and Safety Code §33334.2 and the City of El Cerrito General Plan; and WHEREAS, the Agency Board, after reviewing the submitted proposals determined that Eden Housing, Inc.'s proposal most closely met the Agency's goals for development of the Property and is the most qualified developer of those who submitted proposals; and WHEREAS, the Agency Board adopted Resolution No. 600 on October 18, 2010 designating Eden Housing, Inc. as the selected developer (the “Developer”) for the Property with the goal of negotiating a Disposition and Development Agreement (the “DDA”) for the development of the Property; and WHEREAS, the Agency Board adopted Resolution No. 605 on February 22, 2011 authorizing the Executive Director to execute an Exclusive Negotiating Rights Agreement with the Developer for negotiation of a DDA (the “ENRA”); and WHEREAS, the Agency executed an ENRA with the Developer on March 8, 2011; and WHEREAS, the Developer seeks to acquire the Property and develop a mixed-use residential development consisting of approximately 63 rental units affordable to very low- and low-income households including commercial space for the Samuel Merritt College Clinic, a retail space and preservation of the historic florist shop located on the Property (Development); and ---PAGE BREAK--- Agenda Item No. 7(A) Attachment 1 Page 2 of 3 WHEREAS, the Agency provided a loan (Loan) from the Low and Moderate Income Housing Fund to the Developer for predevelopment expenses related to the Development for the purposes of increasing, improving and preserving the community’s supply of low- and moderate- income housing pursuant to California Health and Safety Code §33334.2; and WHEREAS, the Agency and the City have entered into a Property Conveyance Agreement conveying the Property to the City and wherein the City assumed the Agency’s rights and obligations under the ENRA to cause development of the Property consistent with the Redevelopment Plan and the Property’s intended use for the purposes of developing affordable housing units; and WHEREAS, the City adopted Resolution No. 2012-04 on January 17, 2012 electing to retain the housing assets and functions previously performed by the Agency in accordance with Section 34176 of the Redevelopment Law and becoming the housing successor to the El Cerrito Redevelopment Agency; and WHEREAS, the Agency was dissolved effective February 1, 2012 pursuant to the State Budget bill ABX1 26 (the “Dissolution Act”) and all housing assets, less the unencumbered housing balance, and obligations of the former Agency were transferred to the City as housing successor by operation of law; and WHEREAS, the City adopted Resolution No. 2012-35 extending the negotiating period of the Exclusive Negotiating Rights Agreement to June 8, 2013; and WHEREAS, the City Council desires to extend the negotiating period of the Exclusive Negotiating Rights Agreement to January 8, 2014 subject to the Developer’s written consent to such extension; and whereas an extension of the ENRA also extends the Right of Entry between the Developer and the City dated March 8, 2011 for the Property. NOW THEREFORE, BE IT RESOLVED AS FOLLOWS: 1. The City Council finds that the above recitals are accurate. 2. The City Council hereby authorizes and directs the City Manager to prepare and execute an extension of the Exclusive Negotiating Rights Agreement to January 8, 2014 on behalf of the City as housing successor, and related documents and to take such other actions as are appropriate to effectuate the purposes of this Resolution. 3. Nothing in this Resolution shall affect the City’s policy discretion in granting or denying any potentially necessary Planning Approvals or other entitlements. 4. This Resolution shall become effective immediately upon its adoption. ---PAGE BREAK--- Agenda Item No. 7(A) Attachment 1 Page 3 of 3 I CERTIFY that at the regular meeting on May 21, 2013, the City Council of the City of El Cerrito passed this resolution by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: IN WITNESS of this action, I have hereunto set my hand and affixed the official Seal of said City, this day of May, 2013. Cheryl Morse, City Clerk Approved: Gregory B. Lyman, Mayor ---PAGE BREAK--- EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT Q. This Exclusive Negotiating Rights Agreement (this "Agreement") is entered into as of this day of March, 2011 (the "Effective Date"), by and between the El Cerrito Redevelopment Agency (the "Agency"), and Eden Housing, Inc., a California nonprofit public benefit corporation ("Developer"). RECITALS A. The Agency is responsible for the implementation of the El Cerrito Redevelopment Plan (the "Redevelopment Plan") to redevelop the El Cerrito Redevelopment Project Area (the "Project Area") consistent with the policies and standards of the General Plan of the City ofEl Cerrito (the "City"). The goals of the Redevelopment Plan include, but are not limited to, the alleviation of blighting conditions, the stimulation of economic development, the creation of job opportunities and the creation ofhousing opportunities that serve the full spectrum ofhouseholds in the City in the Project Area. Amongst the goals of the Redevelopment Plan is the revitalization of the Civic Center/Midtown area which is located within the Project Area. Revitalization of the Civic Center/Midtown area entails the provision of affordable housing, meeting the community's housing needs, supporting mixed-use development appropriate to the area's Transit Oriented Mixed-Use zoning and the incorporation of a civic or community-serving use such as a senior center. B. The Agency acquired 10860 and 10848 San Pablo Avenue (the "Property") located in the Civic Center/Midtown area for the purposes of increasing, improving and preserving the community's supply oflow and moderate income housing and, in part, used Housing Fund monies to purchase the Property pursuant to California Health and Safety Code Section 33334.2. C. The Agency issued a request for qualification and proposals (RFQ/P) from housing developers to solicit interest in redeveloping the Property as a residential mixed-use development including affordable housing consistent with California Health and Safety Code Section 33334.2 and the City ofEl Cerrito General Plan. D. In connection with the RFQ/P, the Developer submitted a response dated June 21, 2010 (the "Developer Response"), setting forth a development proposal described in Exhibit A. The Developer Response includes sixty-four (64) rental units to be developed by Developer. The rental units proposed in the Developer Response consist of two studio apartments, sixty (60) one-bedroom apartments and two two-bedroom apartments, one of which will be utilized as a management unit. The Developer Response also provides for up to four thousand six hundred fifty ( 4,650) square feet of commercial space. The Developer Response proposes using two thousand four hundred (2,400) square feet of the commercial space for a health clinic. The remaining two thousand two hundred fifty (2,250) square feet are proposed as neighborhood-servingretail or professional office flex space. 319\31\923932.3 !13!12011 Agenda Item No. 7(A) Attachment 2 ---PAGE BREAK--- E. The Agency, after reviewing all the submitted proposals, determined that the Developer's proposal most closely meets the Agency's goals for development of the property, and the Developer is the most qualified developer of those who submitted proposals. F. Based on a review of the Developer's Proposal, the Agency directed Agency staff to negotiate with the Developer to achieve the completion of the Development. G. The Agency and the Developer desire to seek to negotiate the terms of a Disposition and Development Agreement ("DDA") which would provide for the development of a project consistent with Developer Response ("Development"). H. Completion of the Development will assist in ameliorating blighting influences in the El Cerrito Redevelopment Project Area, will serve as a catalyst for redevelopment throughout the Project Area and will provide necessary, affordable housing for seniors at affordable housing costs pursuant to California Health and Safety Code Section 33334.2. I. The purpose of this Agreement is to establish procedures and standards for the negotiation by the Agency and the Developer of the DDA. As more fully set forth in Section 3.1 below, the parties acknowledge and agree that this Agreement in itself does not obligate either party to acquire or convey any property, does not grant the Developer the right to develop the Development, and does not obligate the parties to undertake any activities or costs, except for the preliminary analysis and negotiations contemplated by this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties mutually agree as follows: ARTICLE 1. EXCLUSIVE NEGOTIATIONS RIGHT Section 1.1 Good Faith Negotiations. The Agency and the Developer shall negotiate diligently and in good faith, during the Negotiating Period described in Section 1.2, the terms of the DDA. The RFP and the Developer Response shall serve as a guide in the negotiation of the DDA, although the parties acknowledge that review of additional information and further discussion may lead to refmement and revision of the development concepts and business terms set forth in the RFP, and the Developer Response. During the Negotiating Period, the parties shall use good faith efforts to accomplish the respective tasks outlined in Article 2 to facilitate the negotiation of a mutually satisfactory DDA. Among the issues to be addressed in the negotiations are: the terms of any Agency fmancial assistance; preconditions for conveyance of Property; the development schedule for the 319\31\923932.3 1/31/2011 ---PAGE BREAK--- Development; fmancing of the Development by the Developer; management of the Development; design and aesthetic considerations of the Development; and similar matters. Section 1.2 Negotiating Period. The negotiating period (the "Negotiating Period") under this Agreement shall be one year, commencing on the Effective Date, subject to extension by mutual agreement of the parties in writing. The Negotiating Period may be extended on the Agency's behalf for up to ninety (90) days by the Executive Director of the Agency if, in the Executive Director's judgment, sufficient progress toward a mutually acceptable DDA has been made during the initial one year negotiating period to merit such extension. If, pursuant to Section 2.8, the City determines that a Environmental Impact Report is required, the Negotiating Period shall be automatically extended for an additional one hundred eighty ( 180) days beyond the initial one year period. If the DDA has not been executed by the Agency and the Developer by the expiration of the Negotiating Period (as the Negotiating Period may be extended by operation of the preceding paragraph), then this Agreement shall terminate and neither party shall have any further rights or obligations under this Agreement. If the DDA is executed by the Agency and the Developer, then upon such execution, this Agreement shall terminate, and all rights and obligations of the parties shall be as set forth in the executed DDA. Section 1.3 Exclusive Negotiations. During the Negotiating Period (as such Negotiating Period may be extended by operation of Section 1.2), the Agency shall not negotiate with any entity, other than the Developer, regarding the development of the Property. Section 1.4 Good Faith Deposit. In consideration for this Agreement, the Developer has, prior to execution of this Agreement by the Agency, provided to the Agency a cash deposit of Twenty Five Thousand Dollars ($25,000) (the "Good Faith Deposit"). During the term of this Agreement, the Agency may (but shall not be required to) invest the Good Faith Deposit for purposes of earning interest thereon. The Good Faith Deposit is in addition to any fees the Developer may be required to pay the City or the Agency for processing of applications including the fees required for the preparation of CEQA documents. The Agency may from time to time deduct funds from the Good Faith Deposit to pay the costs and consulting fees actually and reasonably incurred and documented by the Agency in connection with preparing and implementing this Agreement. Within fifteen (15) days after deducting funds from the Good Faith Deposit for such purposes, the Agency shall deliver to the Developer a statement describing the amount deducted and the costs and expenses being paid with such amount. If this Agreement is terminated without execution of a DDA for any reason other than the Developer's breach of its obligations pursuant to this Agreement, then the Good Faith Deposit and any interest earned thereon shall be refunded to the Developer, except that the Agency may retain the amount of costs and consulting fees actually and reasonably incurred and documented by the Agency in connection with preparing and implementing this Agreement. 319\31\923932.3 113112011 ---PAGE BREAK--- If this Agreement is terminated by the Agency due to a breach of the Developer's obligations pursuant to this Agreement, the Good Faith Deposit and any interest earned thereon shall be retained by the Agency, as more fully provided in Section 3.7. If performance of this Agreement results in execution of a DDA, the disposition of the Good Faith Deposit and any interest earned thereon shall be as set forth in the DDA. Section 1.5 Identification of Developer Representative. The Developer's representatives to negotiate the DDA with the Agency are Linda Mandolini, Andrea Papanastassiou and Katie Lamont. Communications from the Agency to the Developer under this Agreement shall be transmitted in accordance with the provisions of Section 3 ARTICLE 2. NEGOTIATION TASKS Section 2.1 Overview. To facilitate negotiation of the DDA, the parties shall use reasonable good faith efforts to accomplish the tasks set forth in this Article 2 in a timeframe that will support negotiation and execution of a mutually acceptable DDA prior to the expiration of the Negotiating Period. Section 2.2 Site and Architectural Plans. No later than sixty (60) days after the execution of this Agreement,. the Developer shall prepare and submit to the Agency a proposed site plan and architectural drawings identifying the location, general configuration, and proposed design characteristics of the Development to the extent such site plan has changed since the Developer submitted the Developer Proposal. Thereafter, the parties shall consider appropriate refmements and modifications to such site plan and drawings, and for that purpose shall: participate in a process which is mutually developed and agreed to by the Agency, the City and the Developer, to obtain and consider community input regarding the design of the Development; and conduct discussions with appropriate City representatives regarding the site plan and drawings and the procedures for submittal and processing of an application for land use entitlements for the Development should a DDA be executed and become effective. Section 2.3 Financing and Costs of Development. No later than ninety (90) days after the execution of this Agreement, the Developer shall provide the Agency with a detailed fmancial analysis for the Development containing, among other matters, a sources and uses for the Development, development budget and operating proforma setting forth the costs and revenues associated with developing and operating the Development. In the event that the sources and uses indicate that there is a gap in the available sources, the Developer shall identify the amount of the gap. Upon submission of the fmancial analysis, the Agency and the Developer shall meet to discuss possible -options for filling any identified gap. Section 2.4 Schedule of Performance. No later than ninety (90) days after execution of this Agreement, the Developer shall provide the Agency with a proposed detailed schedule of per(ormance for the Development which shall include, but not be limited to: the dates for obtaining land use entitlements and financing commitments for the Development, the date for 319\31\923932.3 1/3112011 ---PAGE BREAK--- the submittal of construction plans to the City, the date for obtaining financing commitments; the date for satisfaction of all preconditions to conveyance, the date for close of escrow on the Development Site, and the dates for the commencement and completion of construction of the Development. Section 2.5 Due Diligence Regarding Physical Condition and Title. During the Negotiating Period, the Developer and the Agency shall conduct any and all investigations they deem necessary to negotiate the terms to be contained in the DDA. Section 2.6 Reports. Unless otherwise waived by the receiving party, each party shall provide the other with copies of all reports, studies, analyses, correspondence and similar documents (but excluding detailed property appraisals, summary appraisals only need to provided, and confidential or proprietary information) prepared or commissioned by each party with respect to this Agreement and the Development, upon their completion. Section 2. 7 Organizational Documents. Prior to the execution of a DDA, if the Developer intents to form a limited partnership or other entity to undertake the development of the Property, the Developer shall provide the Agency with copies of articles of incorporation, operating agreements or other organizational documents for any such entity. Section 2.8 Entitlements and Environmental Review. The Developer shall be required to apply for any permits and approvals necessary for the Development in accordance with the City's standard application process and shall be subject to all of the City's normal fees for any required approvals. Upon receipt of the necessary applications for the required entitlements, the City or the Agency shall initiate the preparation of any environmental documentation required by the California Environmental Quality Act ("CEQA") for consideration of approval of the entitlements and DDA; provided, that nothing in this Agreement shall be construed to compel the Agency or the City to approve or make any particular fmdings with respect to such CEQA documentation or the entitlements. The Developer shall pay the City or the Agency for all costs associated with the preparation of the CEQA document. The Developer shall provide such information about the Development as may be required to enable the Agency or the City to prepare or cause preparation and consideration of any CEQA-required document, and shall otherwise generally cooperate with the Agency to complete this task. In addition, the Developer shall pay to the City or the Agency, as applicable, the standard City CEQA processing fee. Section 2.9 Section 33433 Report. The Agency shall prepare the necessary documentation pursuant to Section 33433(a)(2)(B) of the California Health and Safety Code to be submitted to the Agency Board and the City Council of the City of El Cerrito in conjunction with the Agency's and the City's consideration of any DDA that is prepared under this Agreement. Section 2.10 Progress Reports. From time to time as reasonably agreed upon by the parties, each party shall make written progress reports via electronic mail, facsimile or regular mail advising the other party on studies being made and matters being evaluated by the reporting party with respect to this Agreement and the Development. 319\31\923932.3 1/3112011 ---PAGE BREAK--- ARTICLE3. GENERAL PROVISIONS Section 3.1 Limitation on Effect of Agreement. This Agreement shall not obligate either the Agency or the Developer to enter into the DDA. By execution of this Agreement, the Agency is not committing itself to or agreeing to undertake acquisition, disposition, or exercise of control over any property. Execution of this Agreement by the Agency is merely an agreement to conduct a period of exclusive negotiations in accordance with the terms hereof, reserving for subsequent Agency and City Council action the fmal discretion and approval regarding the execution of any DDA and all proceedings and decisions in connection therewith. Any DDA resulting from negotiations pursuant to this Agreement shall become effective only if and after such DDA has been considered and approved by the Agency Board and, if required by law, the City Council of the City, following conduct of all legally required procedures, and executed by duly authorized representatives of the Agency and the Developer. Until and unless the DDA is signed by the Developer, approved by the Agency Board, and executed by the Agency, no agreement drafts, actions, deliverables or communications arising from the performance of this Agreement shall impose any legally binding obligation on either party to enter into or support entering into the DDA or be used as evidence of any oral or implied agreement by either party to enter into any other legally binding document. Section 3.2 Notices. Formal notices, demands and communications between the Agency and the Developer shall be sufficiently given if, and shall not be deemed given unless, dispatched by certified mail, postage prepaid, return receipt requested, or sent by express delivery or overnight courier service, to the office of the parties shown as follows, or such other address as the parties may designate in writing from time to time: Agency: El Cerrito Redevelopment Agency 10890 San Pablo Avenue El Cerrito, CA 94530-2323 Attention: Executive Director Developer: Eden Housing, Inc. 22645 Grand Street Hayward, CA 94541 Attention: Executive Director Such written notices, demands and communications shall be effective on the date shown on the delivery receipt as the date delivered or the date on which delivery was refused. Section 3.3 Costs and Expenses. Each party shall be responsible for its owns costs and expenses in connection with any activities and negotiations undertaken in connection with this Agreement, and the performance of each party's obligations under this Agreement. . Section 3.4 No Commissions. Neither party shall be liable for any real estate conimissions or brokerage fees that may arise from this Agreement or any DDA resulting from 319\31\923932.3 1/31/2011 ---PAGE BREAK--- this Agreement. The parties represent and warrant that they have not engaged any brokers, agents or fmders in connection with this transaction. The Developer shall defend and hold the Agency harmless from any claims by any broker, agent or fmder retained by the Developer. The Agency shall defend and hold the Developer harmless from any claims by any broker, agent or finder retained by the Agency. Section 3.5 Defaults and Remedies. Default. Failure by either party to negotiate in good faith as provided in this Agreement or to deliver any documents or information in a timely manner as required in this Agreement shall constitute an event of default hereunder. The non-defaulting party shall give written notice of a default to the defaulting party, specifying the nature of the default and the required action to cure the default. If a default remains uncured ten ( 1 0) days after receipt by the defaulting party of such notice, the non-defaulting party may exercise the remedies set forth in subsection Remedies. In the event of an uncured default by a party, the non- defaulting party's sole remedy shall be to terminate this Agreement. Following such termination, neither party shall have any further right, remedy or obligation under this Agreement, except as set forth in Section 3 except that if the default is the result of a Developer default, the Agency shall be entitled to retain the Good Faith Deposit. Section 3.6 Attorneys' Fees. The prevailing party in any action to enforce this Agreement shall be entitled to recover attorneys' fees and costs from the other party. Section 3. 7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Section 3.8 Entire Agreement. This Agreement constitutes the entire agreement of the parties regarding the subject matters of this Agreement. Section 3.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same agreement. Section 3.10 Assignment. Neither party shall transfer or assign any or all of its rights or obligations hereunder except with the prior written consent of the other party, which consent shall be granted or withheld in the other party's good faith discretion, and any such attempted transfer or assignment without the prior written consent of Agency shall be void. Section 3.11 No Third Party Beneficiaries. This Agreement is made and entered into solely for the benefit of the Agency and the Developer and no other person shall have any right of action under or by reason of this Agreement. . Section 3.12 Actions By The Agency. Whenever this Agreement calls for or permits the ·approval, consent, authorization or waiver of the Agency, the approval, consent, 319\31\923932.3 1/31/2011 ---PAGE BREAK--- authorization, or waiver of the Agency Executive Director shall constitute the approval, consent, authorization or waiver of the Agency without further action of the Agency Board. 319\31\923932.3 113112011 ---PAGE BREAK--- IN WITNESS WHEREOF, this Agreement has been executed, in triplicate, by the parties on the date first above written. ATTEST: By: APPROVED AS TO FORM: By: Agency Special Counsel 319\31\923932.3 1/3112011 DEVELOPER: EDEN HOUSING, INC., a California nonprofit public benefit corporation By:~ Its: Executive Director AGENCY: EL CERRITO REDEVELOPMENT AGENCY, a public body, corporate and politic By: Name: ---PAGE BREAK--- 2013 Ms. Linda Mandolini Executive Director Eden Housing, Inc. 22645 Grand Street Hayward, CA 94541 Re: Extension of Exclusive Negotiation Rights Agreement for 10848 & 10860 San Pablo Avenue, El Cerrito Dear Ms. Mandolini: This letter agreement (“ENRA Letter Agreement”) is to extend by mutual consent the Negotiating Period of the Exclusive Negotiating Rights Agreement (the “Agreement”) dated March 8, 2011 between Eden Housing, Inc. and the City of El Cerrito, as successor to the the El Cerrito Redevelopment Agency for the property located at 10848 and 10860 San Pablo Avenue, El Cerrito (the “Property”). On March 22, 2011, the former El Cerrito Redevelopment Agency assigned its rights and obligations with respect to the Agreement to the City of El Cerrito. Pursuant to Section 1.2 of the Agreement, the parties may extend the initial Negotiating Period of the Agreement by providing written consent. The City of El Cerrito hereby agrees, subject to the written consent provided herein by the Executive Director of Eden Housing, Inc., to extend the Negotiating Period of the Agreement to February 8, 2014. This letter agreement also extends the Right of Entry between Eden Housing Inc.and the City of El Cerrito as the successor to the El Cerrito Redevelopment Agency dated March 8, 2011 for the Property. IN WITNESS WHEREOF, this Agreement has been executed, in triplicate, by the parties on the date first above written. EDEN HOUSING, INC., a California nonprofit public benefit corporation CITY OF EL CERRITO, a public body, corporate and politic By: Linda Mandolini Scott Hanin Executive Director City Manager cc: Hilde Myall, City of El Cerrito Karen Tiedemann, Goldfarb & Lipman Woody Karp, Eden Housing, Inc.