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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. 1 61147.80005\32173393.3 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} 2 61147.80005\32173393.3 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 3 61147.80005\32173393.3