19-0819_GANAHL LUMBER COMPANY_1st Amd to Exclusive Negotiation Agreement FIRST AMENDMENT TO EXCLUSIVE NEGOTIATION AGREEMENT
(LOWER ROSAN RANCH)
THIS FIRST AMENDME TTO EXCLUSIVE NEGOTIATION AGREEMENT("First
Amendment") is dated as of fio I , 2019, for reference purposes only, and it is entered
into by and between the City of San Juan Capistrano, a municipal corporation and general law
city ("City") and Ganahl Lumber Company, a California corporation ("Developer"). The City
and the Developer are sometimes referred to in this Agreement individually, as a "Party" and,
collectively as the "Parties". This Agreement is entered into by the Parties with reference to the
following recited facts (each, a "Recital").
RECITALS
A. The City and the Developer previously entered into that certain "Exclusive
Negotiation Agreement (Ganahl Lumber)" ("Original Agreement") reference dated as of
August 31, 2017. Initially capitalized terms used, but not otherwise defined, herein shall have
the meaning ascribed to such terms in the Original Agreement.
B. The Parties have agreed that additional time is necessary to permit them to more
complete the negotiations for and drafting of the necessary documents for the conveyance and
development of the Property. Accordingly, the Parties desire to enter into this First Amendment
to extend the term of the Agreement and to clarify the milestones necessary to bring the Project
forward for consideration by the City Council.
NOW, THEREFORE, IN VIEW OF THE GOALS AND OBJECTIVES OF THE CITY
AND THE PROMISES OF THE CITY AND THE DEVELOPER SET FORTH IN THIS
AGREEMENT, THE CITY AND THE DEVELOPER AGREE AS FOLLOWS:
Section 1. Incorporation of Recitals. The Recitals of fact set forth above are true and
correct and are incorporated into this First Amendment, in their entirety, by this reference.
Section 2. Affirmation Regarding Absence of Defaults. Each Party hereby represents
and warrants to the other Party that, as of the Effective Date of this First Amendment, the non-
representing Party is not in material uncured default of the Original Agreement or the First
Amendment and that there have been no events that, with the passage of time, the giving of
notice, or both, would constitute an event of default under the Original Agreement or the First
Amendment. Each Party understands that the foregoing representation and warranty constitutes
material consideration to the other Party for the other Party's entry into this First Amendment.
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Section 3. Negotiating Period. The Parties hereby agree to amend Section 1 of the
Agreement, Negotiation Period, to extend the Negotiation Period for an additional 90 days, with
the Negotiation Period then expiring on November 29, 2019.
Section 4. Effectiveness of First Amendment. The rights and duties of the City and the
Developer established by this First Amendment shall commence on the first date on which all of
the following have occurred: (1) execution of this First Amendment by the authorized
representative(s) of the Developer and delivery of such executed First Amendment to the City,
and (2) approval of this First Amendment by the City Manager pursuant to Section 1 of the
Original Agreement.
Section 5. First Amendment Deposit. Pursuant to Section 3.1 of the Agreement
Developer has made and initial Deposit in the amount of Twenty-five Thousand Dollars
($25,000). Concurrent with the Developer's execution of this First Amendment, the Developer
shall provide to the City a deposit of Ten Thousand Dollars ($10,000) (First Amendment
Deposit) in immediately available funds to ensure that the Developer will proceed diligently and
in good faith to fulfill its obligations under the Agreement. To continue to pursue the proposed
Project the City anticipates incurring certain staff and consultant costs which are charged against
the Deposit. If at any point during the Negotiation Period the City determines additional funds
will be required to complete the activities to pursue the Project, Developer shall deposit an
additional Ten Thousand Dollars ($10,000) within ten (10) days of the City providing written
notice of the need for the additional funds. If the First Amendment Deposit and any additional
Deposits are not received within ten (10) days of the City providing written notice pursuant to
this Section, the City may terminate the Agreement.
Section 6. Effect Upon Agreement. Except as expressly amended by this First
Amendment, the Agreement remains in full force and effect, unmodified except as otherwise
expressly herein provided. Wherever the term "Agreement" appears in the Original Agreement,
it shall be read and understood to mean the Original Agreement as amended by the First
Amendment. In the event of any direct conflict or inconsistency between the terms of the
Original Agreement and this First Amendment, the terms of this First Amendment shall be
controlling to the extent of such conflict or inconsistency.
[Signatures on Following Page}
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FIRST AMENDMENT TO EXCLUSIVE NEGOTIATION AGREEMENT
(Lower Rosan Ranch)
IN WITNESS WHEREOF, the City and the Developer have executed this First
Amendment to Exclusive Negotiation Agreement on the dates indicated next to each of the
signatures of their authorized representatives, as appear below.
DEVELOPER:
Ganahl Lumber Company, a California
Corporation
Date: e3/1 ci-z 4=i
By Z _.
CITY:
THE CITY OF SAN JUAN CAPISTRANO
Date: 16?tAl By:7..,)11(
jami • ge , City Manager
ATTEST:
ici\u0° 1 fre
By: •
• Morris,• ity Clerk
APPROVED AS TO FORM:
BEST BEST &KRIEGER, LLP
By:4-dee-4/a 4-11,
JejT• allinger, City Agney
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