20-0218_GANAHL LUMBER COMPANY_E11_Agenda ReportCity of San Juan Capistrano
Agenda Report
TO: Honorable Mayor and Members of the City Council
FROM: .Ænj^ in Siegel, City Manager
SUBMITTED BY: Charlie View, Assistant City Manager
DATE: February 18,2020
2t1812020
811
Third Amendment to Exclusive Negotiation Agreement between the
City of San Juan Capistrano and Ganahl Lumber Company for the
Lower Rosan Ranch Property Assessor Parcel Numbers: 121-253-
13; 121-253-15; 121-240-39; 121-240-73; 121-240-6 (portion of).
SUBJECT
RECOMMENDATION
Approve and authorize the City Manager to execute the Third Amendment to the
Exclusive Negotiation Agreement ('ENA") with Ganahl Lumber Company for
development of the Lower Rosan Ranch property.
DISCUSSION/ANALYSIS
Following the dissolution of redevelopment agencies, the State directed that properties
owned by the City's former Redevelopment Agency be sold and the proceeds be
distributed to the taxing entities, including the State, the County of Orange, school
districts and special districts in which the properties were located. One of these
properties in San Juan Capistrano is Lower Rosan Ranch, an unimproved parcel
generally located on the north side of Stonehill Drive, west of Camino Capistrano. An
aerial photo of the site is provided as Attachment 1.
On June 21,2016, the City Council selected CBRE asthe brokerto markettwoformer
Redevelopment Agency parcels: Lower Rosan Ranch and the Downtown/Playhouse
Property. After an extensive marketing program, the City received thirteen proposals for
the Lower Rosan Ranch property. After careful review of the proposals and the
qualifications of the potential buyers, the City Council identified five proposers to
participate in a community workshop to present their development plan. Following the
workshop and review of the information provided by the five proposers, the City Council
directed staff to prepare an Exclusive Negotiation Agreement (ENA) with Ganahl
Lumber Company for the potential sale of the property. The Exclusive Negotiation
Agreement ("ENA") was approved by City Council on August 1, 2017. The ENA
established a period during which the parties could assess the viability of any proposed
City Council Agenda Report
February 18,2020
Paqe 2 of 3
project and negotiate the terms of a sales agreement (Attachment 2)
The ENA established an initial 24-month negotiating period and allowed for two 90-day
extensions by mutual agreement (Attachments 3 and 4). These 90-day extensions have
been utilized and approval of the recommended action would allow for the ENA to
remain in force through completion of the negotiation process. The proposed Third
Amendment extending the negotiation period is provided as Attachment 5.
The Ganahl development plan and required City approvals are all included for study in
the Environmental lmpact Report (ElR) for the proposed Ganahl project. The EIR is
currently being circulated for public review and comment. lt is anticipated that the review
process for the Ganahl project will be completed in summer 2020, and the approval of
this extension will support the completion of the negotiation of sales terms. As with
approval of the original ENA, the ENA extension does not bind the City in any way to a
specific project or future sale of the property to Ganahl.
F¡SCAL IMPACT:
Approval of the ENA extension would have minimal fiscal impact to the City. All costs
incurred during the term of this ENA for attorney services, environmental review, and
other professional planning/engineering services are being charged against the
proceeds from sale of the Lower Rosan property or will be the responsibility of Ganahl.
ENVIRONMENTAL REVIEW:
ln accordance with the California Environmental Quality Act (CEQA) the recommended
action is exempt from CEQA per Section 15061(bX3), the general rule that CEQA
applies only to projects which have the potential for causing a significant effect on the
environment. Where it can be seen with certainty that there is no possibility that the
activity in question may have a significant effect on the environment, the activity is not
subject to CEQA. At the time the development project moves forward for discretionary
actions, the appropriate documentation will be provided consistent with CEQA
guidelines.
PRIOR CITY COUNCIL REVIEW:
On August 1, 2017 the City Council approved the Exclusive Negotiation
Agreement between the City of San Juan Capistrano and Ganahl Lumber
Company
On April 4, 2017, the City Council voted unanimously to enter into exclusive
negotiations with Ganahl Lumber Company for the potential sale of the Lower
Rosan Ranch property.
a
City Council Agenda Report
February 18,2020
Page 3 of 3
On March 29, 2017, the City Council conducted a Community Workshop to
review development proposals for the Lower Rosan Ranch site.
COM M I SSI ON/COM M ITTEE/BOA RD REVIEW AND RECOMMENDATIONS:
a
This item does not require commission, committee, or board review
NOTIFICATIONS:
Ganahl Lumber Company
Marriott Residence lnn
Auto Dealer Association
Rosetta DevelopmenUSegovia Capital Partners
Capistrano Valley Mobile Estates - Mr. Dana Dercole
Villa San Juan - Bob and Mary Ames
Mr. Richard Toon
Mr. Jim Vance
Mr. Mike Wernet
Mr. Gary Hilde
Mr. Kent McNaughton
ATTACHMENTS
Attachment 1 - Aerial Photo
Attachment 2 - Exclusive Negotiation Agreement
Attachment 3 - First Amendment to Exclusive Negotiation Agreement
Attachment 4 - Second Amendment to Exclusive Negotiation Agreement
Attachment 5 - Proposed Third Amendment to Exclusive Negotiation Agreement
Iítr ñr"ì:!i¡ .;' .-;'.¡* -... ".ç";*)âf'sr@ryrâL!,¡¡t-2éResidencel¡¡ ".tù¡rrpllîÞc)3mz{Ä--,- -ST RËGIS&ffiToYorA- r i..-t;Ìâ,ìw¡Êl¡.ìSUBJ€CÍ PROPERTY4:!.. ¿@l.:..-' '-¡
EXCLUSI\rE NEGOTIATION AGREEMENT
(Lower Rosan Ranch)
By and Between the
CITY OF SAN JUAN CAPISTRANO
GANAHL LUMBER COMPANY
[Dated for reference purposes only ttrp'U ,2017l
¿
and
61147 .8æ05ìo9771032.4
ATTACHMENT 2
EXCLUSIVE NEGOTIATION AGREEMENT
(Lower Rosan Ranch)
'fhis EXCLUSM NEGOTIATION AGREEMENT (þwer Rosan Ranch) (this
"Agreement"), dated for purposes of identification only as of 9/> t , 2017 for reference
purposes only (the "Date of Agreement"), is hereby entered into by and between the CITY OF
SAN JUAN CAPISTRANO, a municipal corporation and general law city, (the "City") and
Ganahl Lumber Company (the "Developer").
RECITALS
A. The City owns that certain vacant real property consisting of approximately 15
acres generally located within the City on Stonehill Drive befween the railroad
tracks and San Juan Creek (assessor's parcel numbers: 121-240-76,121-240-039,
121-240-73, 121-253-13, and 121-253-15) (the "Site"). The Sire is more
specifically described in the legal description, which is attached hereto as Exhibit
A and incorporated herein by this reference.
B.The Site was previously owned by the Redevelopment Agency of the City of San
Juan Capistrano and was transferred to the City for future development pursuant
to the Department of Finance approved Long Range Property Management Plan.
The City is currently negotiating a compensation agreement with the affected
taxing entities as provided for in California Health and Safety Code Section
34r 80(Ð.
Following the transfer to the City. the City issued a request for proposals on the
Site and the Developer was the successful respondent.
The Developer is interested in developing the Site as a mixed use
retail/commercial/restaurant project consisting of a Ganahl Lumber store, a quick
serve restaurant, and a car storage and self-storage facility (the "Project").
The City and the Developer desire to explore the feasibility of Developer
acquiring the Site for the purpose of constructing and operating the Project.
The City and the Developer (each, a "Party" and jointly, the "Parties") desire to
jointly explore the feasibility of the Project and negotiate an agreement or
agreements to provide for the disposition of the Site and development of the
Project (*DDA").
The primary purpose of this Agreement is to establish a period during which the
Parties shall negotiate the terms of a DDA.
NOW, THEREFORE, THE PARTIAS AGREE AS FOLLOWS:
Section 1. Negotiating Period. The Parties agree to negotiate diligently and in good faith
with one another for a period of twenty four (24) months, commencing upon the Effective Date
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6 1 t 47 .80005t¿9'1 7 t 032.4
of this Agreement (as hereinafter defined in Section 16) (the "Negotiating Period"), in order to
agree upon a mutually acceptable DDA.
The Parties, by written agreement of the Developer and the City Manager of the City (the.,City
Manager"), may extend the Negotiating Period for up to two (2) additional periods of ninety (90)
days each. The term "Negotiating Period" as used herein shall include any extensions of such
Negotiating Period pursuant to this Section.
Section 2. Extension Period. If a DDA acceptable to the Developer and the City Manager is
executed and submitted by the Developer within the Negotiating Period, then the term of the
Negotiating Period and this Agreement shall automatically be extended for a period of forty-five
(45) days from the date of such submittal to enable the City's staff to take and coordinate the
actions necessary to bring the DDA before the City Council for consideration, action. and
authorization to execute, ifsuch are approved by such entity.
Section 3. Deposits.
3.1 Concurrent with the Developer's execution of this Agreement, the Developer
shall provide to the City a deposit in the amount of Twenty Five Thousand Dollars
($25,000) in immediately available funds ("lnitial Deposit") to ensure that the Developer
will proceed diligently and in good faith to fulfill its obligations under this Agreement
during the Negotiation Period, as part of the consideration for the City's agreement not to
negotiate with other persons during the Negotiation Period, and to defray certain costs of
the Project and the City in pursuing the contemplated negotiations with the Developer
during the Negotiation Period, pursuant to this Agreement. The City shall charge all
costs (including staff time, consultant fees and attorney fees associated with review and
implementation of this Agreement or preparing the DDA) against the Initial Deposit (and
Extension Deposit as provided in 3.2 below, as applicable
3.2 At the termination of this Agreement. any remaining Initial Deposit funds shall,
at the Developer's option, either be applied to the purchase price or returned to the
Developer. Developer acknowledges that the Initial Deposit (and any Extension Deposit,
pursuant to Section 3.2 below) shall be in addition to those fees and expenses required by
the City for any permit, other required entitlement or project processing.
3.3 A portion of the Initial Deposit in an amount equal to One Hundred Dollars
($100) shall immediately become non-refundable upon Developer's transfer of the Initial
Deposit to the City under this Agreement as consideration for the City's agreement not to
negotiate with other persons during the Negotiation Period.
3.4 If requested by City, upon each extension of the Negotiation Period, if any, the
Developer shall provide to the City an additional deposit of Ten Thousand Dollars
($10,000) in immediately available funds on the first day of any extension of the
Negotiation Period (each, an "'Extension Deposit"), Each Extension Deposit is intended
to ensure that the Developer will proceed diligently and in good faith to fulfrll its
obligations under this Agreement during any extension of the Negotiation Period, as part
of the consideration for the Cify's agreement not to negotiate with other persons during
261 1 47.8000s\297 7 1 032 4
any such extension of the Negotiation Period, and to defray certain costs of the City in
pursuing the contemplated negotiations with the Developer during any such extension of
the Negotiation Period, pursuant to this Agreement. At the termination of this
Agreement, any remaining funds from an Extension Deposit shall be refundabte to the
Developer as provided in Section 3.2, above.
Section 4. Certain Parameters for Negotiations. The following nonexclusive list of items
related to the Project shall be the subject of negotiations during the Negotiation Period:
4.1 programmatic concept for the Project;
4.2 site plan for the Project (depicting building locations, elevations, building square
footages, parking, access points, landscaped areas, signage, and pedestrian and vehicular
circulation);
4.3 marketing/branding plan for the Project, including general tenant categories;
4.4 financing plan for the Project (addressing the proposed methods of construction
and permanent financing, and amounts and sources of equity and debt capital);
4.5 scope of development for the Project;
4.6 development schedule for the Project; and
4.7 the amount which the Developer will pay for the acquisition of an interest or
interests in the Site (including an appraisal of the Site) and terms and conditions of the
conveyance of that interest or interests in the Site to Developer.
Section 5. Developer's Submission of Documents for City Review and Comment. Within
one hundred twenty (120) days following the Effective Date of this Agreement, the Developer
shall submit the following information to the City or its agents:
5.1 programmatic concept;
5.2 site plan;
5.3 marketing/branding plan including general tenant categories;
5.4 project budget;
5.5 a financing plan;
5.6 a scope of development;
5.7 a development schedule; and
5.8 a deal term sheet or draft agreement between the Developer and local San Juan
Capistrano automobile dealers to address future car storage on the Site.
J61t47.80005U9171032 4
In the event that the City requests that changes be made, the Developer shall resubmit a
revised programmatic concept, site plan, marketing/branding plan including general tenant
categories, project budget, financing plan, scope of development and/or development schedule to
the City which shall respond to the City's comments on the initial version of each submission.
The City shall review and either approve such submissions or retum the submissions to the
Developer for further revision as soon as practical but in any event within thirty (30) days.
The Developer acknowledges and agrees that design and architectural review by the City,
its Commissioners, employees and consultants will be required at each stage of the development
of the Project and that sketches, plans, and ultimately working drawings, specifications and
similar documents will be required to be submitted for review and approval pursuant to the DDA
(the "City's Design Review"). The Developer further acknowledges and agrees that the selection
of building elevations, construction materials, parking layout and landscaping will not be final
until approved by City.
Section 6. City Evaluation of Developer's Proposal and Drafting of DDA. Upon the City
receipt of the last of Developer's submissions as provided in Section 5 hereof City shall conduct
or cause to be conducted an evaluation of Developer's submittals and proposed Project; within
forty-five (45) days of the date on which the City receives the last such submittal, City shall elect
to either (i) terminate this Agreement in accordance with Section 9.3 hereof, or (ii) continue
negotiating hereunder in order to consummate the drafting of a DDA.
6.1 Among other terms the DDA is anticipated to include the following deal points:
(a) Public benefrt to the City;
(b) Right of Reverter to the City allowing the City to retake ownership of the
Site if the Project has not received a certificate of occupancy and is open to the public within
twenty-four (24) months of the close of escrow;
(c) Deed restriction on certain noxious uses; and
(d) Payment in Lieu of Taxes provision whereby, if the Ganahl Lumber store
is not open for business and generating sales tax pursuant to the Bradley-Burns Uniform Local
Sales and Use Tax Law (Cal. Rev. & Tax. Code $ 7200, et seq.), the Transactions and Use Tax
Law (Cal. Rev. & Tax. Code S 7251, et seq. and San Juan Capistrano Municipal Code Section 3-
3.402) within twenty four (24) months from the close of escrow on the Site as a result of or
related to existing deed restrictions on the Property, Developer shall provide to the City a cash
payment to replace the sales tax that had been anticipated to be received by the City from the
Ganahl Lumber store.
Section 7. Environmental Requirements. Certain state and local environmental
requirements (including, without limitations, the California Environmental Quality Act, Public
Resources Code Sections 21000, et seq.) may be applicable to the proposed Project. Pursuant to
such requirements, certain environmental documents may be required to be prepared for the
proposed Project. The Developer agrees to cooperate with the City in obtaining information to
determine the environmental impact of the proposed Project in order to prepare or cause to be
prepared such environmental impact documents, if any, as may need to be completed for the
46t 147.80005\2977 l 032 4
proposed Project (collectively, "CEQA Documentation"). City agrees to cooperate with the
Developer to act as lead agency.
Section 8. Cooperation. The Parties agree to cooperate with each other in promptly
supplying information and analyses relating to the Project.
Section 9. Effect of this Agreement; Termination.
9.1 Nature of Agreement. This Agreement is not intended to constitute a binding
agreement by the City or the Developer to acquire all or any portion of the Site or to
construct the Project, nor is it intended to constitute a binding agreement to enter into a
DDA or any other contract. Except as set forth in the DDA, no Party shall be legally
bound to consummate the acquisition of the Site or the construction of the Project as
outlined herein unless and until a DDA or other contract has been executed and delivered
by the Parties. Notwithstanding any other provision hereof, neither the Developer nor the
City shall be under any obligation to approve or execute any DDA during or upon
conclusion of the Negotiating Period. Any Party may refuse to approve and execute any
DDA at its sole and absolute discretion, with or without cause. In the event that a DDA is
approved and executed by the Parties, this Agreement shall be superseded by such DDA.
9.2 Exclusive Nature of Negotiations. The Parties intend that certain aspects of the
negotiations conducted pursuant to this Agreement be negotiated exclusively between the
Parties. Accordingly, during the Negotiating Period, the City shall negotiate exclusively
with the Developer with respect to the development of the Project on the Site.
9.3 Termination of this Agreement. Each Party reserves the right to terminate this
Agreement, with or without cause, upon ten (10) days prior written notice to the other
Party, thereby withdrawing from such negotiations without any liability to the other
Party, except that each Party shall be obligated to promptly return to the other Party all
information and materials which such Party has received from the other Party pursuant to
this Agreement. The Parties, by their respective execution hereof, knowingly agree,
notwithstanding an¡hing herein to the contrary, that neither of them shall have any right
to specific performance of this Agreement, nor any other equitable or damage remedies
under the law. Each Party makes such release with full knowledge of Civil Code Section
1542 and hereby waive any and all rights thereunder to the extent of this release, if such
Section 1542 is applicable. Section 1542 of the Civil Code provides as follows:
..A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WII'H THE DEBToR:'/21
/4-
City's initials
6tr47 80005\297710324 5
Developer's initials
9.4 Mutual Confidentiality. To the extent permitted by applicable law, the Parties
shall maintain all information concerning this Agreement and any pending or subsequent
negotiations between the Parties as confidential, disclosing information only to those
individuals and representatives as designated by the other Party, provided that such
individuals acknowledge and agree to maintain the confidentiality of such information.
Developer agrees and acknowledges that the City is a public agency and is subject to the
California Public Records Action (Gov. Code 6250 et. seq) (the "Act"). City agrees to
inform Developer of any request for information related to this ENA or the Project
pursuant to the Act not less than three (3) days prior to release of the information.
Developer may seek judicial relief to compel the City to maintain the confidentiality of
any information to be released pursuant to the Act,
Section 10. Notices. Any notices, requests or approvals given under this Agreement from one
Party to another may be personally delivered, transmitted by email, or deposit with the United
States Postal Service for mailing, postage prepaid, to the address of the other Party as stated in
this paragraph, and shall be deemed to have been given at the time of personal delivery or, if
mailed, on the third day following the date of deposit in the course of transmission with the
United States Postal Service. Notices shall be sent as follows:
If to City Benjamin Siegel, City Manager
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA92675
E-mai I : Bsiegel@sanj uancapi strano.org
€/ra¿;/.rftoDeveroper: *r:i/ty:rr
section r. Governing Law. rhis ^r,"!Ã&h6;é¿k#å^#r"'€
lyuchtn.ø,
laws of the State of
California. Any legal action brought under this Agreement must be instituted in the Superior
Court of Orange County, State of California, in an appropriate court in that county, or in the
Federal District Court in the Central District of California.
Section 12. Attorneys' Fees. If any legal action is brought to enforce, construe, interpret or
invalidate the terms of this Agreement, the prevailing party shall be entitled to all costs and
expenses incurred in any such action, including court costs and reasonable attorneys' fees, in
addition to any other relief to which such party may be entitled.
Section 13. Interpretation. This Agteement shall be interpreted as a whole and in accordance
with its fair meaning and as if each Party participated equally in its drafting. Captions are for
reference only and are not to be used in construing meaning. The recitals are deemed
incorporated into this Agreement.
Section 14. Real Estate Commissions. Buyer shall be solely responsible for payment of a
brokerage commission to CBRE Group, Inc. ("Buyer's Broker"). Buyer's Broker commission
shall be paid in accordance with separate written commission instructions from Buyer to Buyer's
Broker, but such commissions are earned and due if and only if the transaction closes escrow.
66 1 I 47 .80005!¿97 7 I 032.4
Except as otherwise provided in this Section 14, each Party represents and warrants to the other
Party that there are no other real estate commission, broker's fees, or fìnder's fees which may
accrue by means of the acquisition of an interest in the Site is due to any person, firm or entity
except as set forth above; each Party agrees to indemnify and hold the other Party harmless with
respect to any judgement, damages, legal fees, court costs, and any and all liabilities of any
nature whatsoever arising from a breach of such representation.
Section 15. Amendment of Agreement. No modification, rescission, waiver, release or
amendment of any provision of this Agreement shall be made except by a written agreement
executed by each ofthe Parties.
Section 16. Entire Agreement. This Agreement constitutes the entire understanding and
agreement of the Parties concerning this subject. This Agreement integrates all of the terms and
conditions mentioned herein or incidental thereto, and supersedes all prior negotiations,
discussions and previous agreements befween the Parties concerning all or any part of the subject
matter of this Agreement.
Section 17. Implementation of Agreement. The City shall maintain authority to implement
this Agreement through the City Manager. The City Manager shall have the authority to issue
interpretations, l¡/aive provisions, and/or enter into certain amendments of this Agreement on
behalf of the City so long as such actions do not materially or substantially change the uses or
development contemplated hereunder, or add to the costs incurred or to be incurred by the City
as specified herein, and such interpretations, waivers and/or amendments may include extensions
of time to perform. All other materials and/or substantive interpretations, waivers, or
amendments shall require the consideration, action and written consent of the City Council.
Section 18. Limitation on Damages and Remedies.
THE DEVELOPER AND THE CITY ACKNOV/LEDGE THAT IT IS EXTREMELY
DIFFICULT AND IMPRACTICAL TO ASCERTAIN THE AMOUNT OF DAMAGES THAT
WOULD BE SUFFERED BY THE DEVELOPER UPON THE BREACH OF THIS
AGREEMENT BY THE CITY. HAVING MADE DILIGENT BUT UNSUCCESSFUL
ATTEMPTS TO ASCERTAIN THE ACTUAL DAMAGES THE DEVELOPER WOULD
SUFFER UPON THE BREACH OF THIS AGREEMENT BY THE CITY, THE DEVELOPER
AND THE CITY AGREE THAT A REASONABLE ESTIMATE OF THE DEVELOPER'S
DAMAGES lN SUCH EVENT rS TEN THOUSAND DOLLARS ($10,000) (THE
..LIQUIDATED DAMAGES AMOLINT''). THEREFORE, UPON THE BREACH OF THIS
AGREEMENT BY THE CITY, THE CITY SHALL PAY THE LIQUIDATED DAMAGES
AMOLINT TO THE DEVELOPER AND THIS AGREEMENT SHALL TERMINATE.
RECEIPT OF THE LIQUIDATED DAMAGES AMOUNT SHALI. BE THE DEVELOPER'S
SOLE AND EXCLUSIVE REMEDY ARISING FROM ANY BREACH OF THIS
AGREEMENT BY THE CITY.
761t47 80005).¿9771032.4
THE CITY AND THE DEVELOPER EACH ACKNOWLEDGE AND AGREE THAT
THE CITY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT, IF IT WERE TO BE
LIABLE TO THE DEVELOPER FOR ANY MONETARY DAMAGES, MONETARY
RECOVERY OR ANY REMEDY OTHER THAN TERMINATION OF THIS AGREEMENT
AND PAYMENT OF TIIE LIQUIDATED DAMAGES AMOUNT. ACCORDINGLY, THE
CITY AND THE DEVELOPER AGREE THAT THE DEVELOPER'S SOLE AND
EXCLUSIVE RIGHT AND REMEDY UPON THE BREACH OF THIS AGREEMENT BY
THE CITY IS TO TERMINATE THIS AGREEMENT AND RECEIVE THE LIQUIDATED
DAMAGES AMOUNT.
THE DEVELOPER ACKNOWLEDGES THAT IT IS AWARE OF THE MEANING
AND LEGAL EFFECT OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH
PROVIDES:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOV/ OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER WOULD
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
CALIFORNTA CIVIL CODE SECTION 1542 NOTWITHSTANDING, IT IS THE
INTENTION OF THE DEVELOPER TO BE BOUND BY THE LIMITATION ON
DAMAGES, RECOVERY AND REMEDIES SET FORTH IN THIS SECTION 18, AND THE
DEVELOPER HEREBY RELEASES ANY AND ALL CLAIMS AGAINST THE CITY FOR
MONETARY DAMAGES, MONETARY RECOVERY OR OTHER LEGAL OR EQUITABLE
RELIEF RELATED TO ANY BREACH OF THIS AGREEMENT, EXCEPT RECEIPT OF
THE LIQUIDATED DAMAGES AMOI.INT, WHETHER OR NOT ANY SUCH RELEASED
CLAIMS WERE KNOWN OR UNKNOWN TO THE DEVELOPER AS OF THE EFFECTIVE
DATE OF THIS AGREEMENT. THE DEVELOPER SPECIFICALLY WAIVES THE
BENEFITS OF CALIFORNI-A CIVIL CODE SECTION 1542 AND ALL OTHER STATUTES
AND JUDICIAL DECISIONS (WHETHER STATE OR FEDERAL) OF SIMILAR EFFECT
WITH REGARD TO THE LIMITATIONS ON DAMACES AND REMEDIES AND
WAIVERS OF ANY SUCH DAMAGES AND REMEDIES CONTAINED IN THIS SECTION
18.
lnitials of Authorized
Representative of City
Initials of Authorized
Representative of Developer
Initials of Authorized
Representative of Deve loper
frf
Initials of Authorized
Representative of City
I6t 147 .80005!0977 t032.4
Section 19. Effective Date of this Agreement. This Agreement shall take effect immediately
upon the full execution of this Agreement by both the City and Developer (the "Effective Date').
(The remainder of the page intentionally left blank)
961t47 .80005v977 lO32 4
IN WITNESS \ryHEREOF, THE PARTIES HAVE EXECI-ITED THIS EXCLUSIVE
NEGOTIATTON AGREEMENT (LOWER ROSAN RANCH) ON THE RESPECTTVE
DATES SET FORTH BELOW.
66CJTYrt
SAN JUAN CAPISTRANO CITY, a munic ipal
corporation and law city
Dated:
ATTEST:
CITY CLERK
By:
tug .b[ ,ap17
City
(.DEVELOPER'
City Clerk
B
By
APPROVED AS TO F'ORM:
CITY ATTORNEY
By:,/
BALLINGER,Attorney
g^LA,f-
,/a '6¿t*
Dated:*ry 3/,2o/7
6t | 47 .80005\2977 I 032 4 10
EXHIBIT A
LEGAL DESCRIPTION
(to be attached)
6 I I 4? .8000s!¿97 7 | 032.4 l1
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FIRST AMENDMENT TO EXCLUSIVE NEGOTIATION AGREEMENT
( LOWER ROSAN RANCH)
THIS FIRST TO EXCLUSIVE NEGOTIATION AGREEMENT ("First
2019, for reference purposes only, and it is enteredtAmendment") is dated as of
into by and between tho City San Juan Capistrano, a municipal corporation and general law
city ('City") and Ganahl Lumber Company, a Califomia co¡poration ("Developer"), The City
and the Developer are sometimes referred to in this Agreement individually, as a "Party" and,
collectively as the 'tPârties'r. This.Agreement is entered into by the Parties with reference to the
following recited facts (each, a "Recital").
RECITALS
A. The City and the Doveloper previously entered into that certain rfExclusive
Negotiatlon Agreement (Ganahl Lumbe¡)tr ("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 clarifu the milestones necessary to bring the Project
forward for consideration by the City Council.
NOV/, THEREFORE, IN VIEV/ 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 aro 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 tþe 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 thero 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 wananty constitutes
material consideration to the other Party for the other Party's entry into this First Amendment.
1
6l t47.80005u2 r73393.3
ATTACHMENT 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 Novernber 2902019.
Section 4. Dffectíveness 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 foliowing have occurred: (l) execution of this First Amendment by the authorized
representative(s) of the Developer and delivery of such executed First Amendment to the City,
un¿ (Z) approval of this First Amendment by the City Manager pursuant to Section 1 of the
Original Agreement.
Section 5. First Amendment DeposiL Pursuant to Section 3.1 of the Agreernent
Developer has made and initial Deposit in the amount of Twenty-five Thousand Dollæs
($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
Oeposlt) 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 bè 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 rernains in fulI force and effecto unmodified except as otherwise
expressly herein provided, Wherever the term "Agreement" appeats in the Original Agreement,
it;hail 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
conkolling to the extent of such conflict or inconsistenoy.
[Signatures on Following Page]
2
6 I t47.E0005\32 l7 3391.3
FIRST AMENDMENT TO EXCLUSIVE NEGOTIATION AGREEMENT
(Lower Rosan Ranch)
IN WITNESS WHEREOF, the City and the Developerhave executed this First
Arnendment to Exclusive Negotiation Agreernent on the dates indicated next to each of the
signatures of their authorized representativos, as appear below.
DEVELOPER":
Ganahl Lumber Company,a California
Corporation
tq zo l4
CITY:
THE CITY OF SAN JUAN CAPISTRANO
By:
City Manager
ATTEST:
ty Clerk
APPROVED AS TO FORM:
BEST BEST & KRIEGER, LLP
B
J llinger, City
B
J
6 I I 47,80005\32 t73393,3
SECOND AMENDMENT TO EXCLUSIVE TION AGREEMENT
(GANAHL r,Unnnnn¡ i
, THIS SECOND AMENDMENT TO EXCLUSNE NEGOTIATION AGREEMENT
("First Amendment") is dated as of Ah¿r^l¿ lS ,2019, for reference purposes only, and it
is entered into by and between the City of San Juan Capistrano, a public body, corporate and
politic ("City") and Ganahl Lumber Company, a California corporation ("Developer"). The City
and the Developer are sometimes refened 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 Agreemenf') 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 City and Developer entered into that certain First Amendment to the Original
Agreement reference dated as of August lg, 2019. The Original Agreement and First
Amendment are refened to herein as the "Agreement." The Agreement expires on November 29,
20t9.
C. The Parties have agreed that additional time is neoessary 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 Second
Amendment to extend the term of the Agreement.
NOW, THEREFORE, IN VIEW OF THE GOALS AND OBJECTIVES OF TTIE CITY
AND TI{E PROMISES OF THE CITY AND TFIE DEVELOPER SET FORTH IN THIS
AGREEMENT, THE CITY AND THE DEVELOPER AGREE AS FOLLOWS:
1. Incorporation of Recitals. The Recitals of fact set forth above are true and
correct and are incorporated into this Second Amendment, in their entirety, by this reference.
2. Affirmation RegardÍng Absence of Defaults. Each Party hereby represents and
warrants to the other Party that, as of the Effective Date of this Second Amendment, the non-
representing Party is not in material unoured default of the Agreement and that there have been
nó events tñat, with the passage of time, the giving of noticej or both, would constitute an event
of default under the Original Agreement. Each Party understands that the foregoing
representation and warranty constitutes material consideratiön to the other Party for the'other
Party's entry into this Second Amendment.
I
6t 147.8001n32498901. I
ATTACHMENT 4
l
I
I
I3. Negotiating Period. The Parties hereby þgree
Agreement, Negotiation Period, to extend the Negotiation Pqriod
the Negotiation Period then expiring on February 27,2020.
4, Effectiveness of Second Amendment. The rights and duties of the City and the
Developer established by this Second Amendment shall commence on the ftrst date on which all
of the following have occurued: (1) execution of this Second Amendment by the authorized
representative(s) of the Developer and delivery of such executed Second Amendment to the Cit¡
and (2) approval of this Second Amendment by the City Manager pursuant to Section I of the
Original Agreement
5. Second Amendment Deposit. Pursuant to Section 3.1 of the Agreement
Developer has mdde and initial Deposit in the amount of Twenty-five Thousand Dollars
($2S,OOO¡. The City Manager has determined that sufficient funds remain in the ENA Deposit
Account and an additional deposit is not required at this time. 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 Second 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.
6. Effect Upon Agreement Except as expressly amended by this Second
Amendment, the Agreement remains in fi¡ll force and effect, unmodified except as otherwise
expressly herein provided. Wherever the term "Agreement" appears in the Original Agreement,
it itratl be read and understood to mean the Original Agreement as amended by the First
Amendment and Second Amendments In the event of any direct conflict or inconsistency
between the terms of the Agreement and this Second Amendment, the terms of this Second
Amendment shall be controlling to the extent of such conflict or inconsistency.
[Signatures on Following Page]
to amend Section I of the
for an additional 90 days, with
2
6l 147.8001?\32498901. I
SECOND AMENDMENT TO EXCLUSIVE NE
(Ganahl Lumber)
I
:GOTIATION AGREEMENT
, IN WITNESS WHEREOF, the City and the Developer have executed this Second
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
B
Alex Developer
CITY:
THE CITY OF SAN JUAN CAPISTRANO
t B
ATTEST: r.i'
APPROVED AS.TO FORM:
BEST BEST & KRIEGER, LLP
B
Jeff Ballinger, City Attorney
¡
J
6l l4?.8001n32498901.1
SECOND AMENDMDNT TO EXCLUSIVE NEGOTIATION ÄGREEMENT
(Ganahl Lumber)
IN WITNESS WHEREOF, the City and the Developer have executed this Seoond
Amendment to Exclusive Negotiation Agreement on the dates indicated next to eaoh of the
signatures of their authorized representatives, as appçaÌ be low.
DEVELOPER:
Oanahl Lumber Company, a California
Corporation
z I
Alex Developer
CITY:
THE CIry OF SAN JUAN CAPISTRANO
Date:_
Benjamin Siegel, City Manager
ATTEST:
Maria Morris, City Clerk
APPROVED AS TO FORM:
BEST BEST & KRIE6ER, LLP
(
B
J
3
6t 147-800tn3249890¡.1
THIRD AMENDMENT TO EXCLUSIVE NEGOTIATION AGREEMENT
(GANAHL LUMBER)
THIS THIRD AMENDMENT TO EXCLUSIVE NEGOTIATION AGREEMENT
("Third Amendment") is dated as of _, 2020, for reference pu{poses only, and it is
entered into by and between the City of San Juan Capistrano, a public body, corporate and politic
("City") and Ganahl Lumber Company, a California corporation ("Developer"). The City and
the Developer are sometimes referred to in this Agreement individually, as a "Part¡/" 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 3I,2017. Initially capitalized terms used, but not otherwise defined, herein shall have
the meaning ascribed to such terms in the Original Agreement.
B. The City and Developer entered into that certain First Amendment to the Original
Agreement reference dated as of August 19,2019.
C. The City and Developer entered into that certain Second Amendment to the
Original Agreement reference dated as of November 25,2019. The Original Agreement, First
Amendment and Second Amendment are referred to herein as the "Agreement." The Agreement
expires on February 27,2020.
D. 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 Third Amendment
to extend the term of the Agreement.
NOW, THEREFORE, IN VIEV/ 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:
1. Incorporation of Recitals. The Recitals of fact set forth above are true and
correct and are incorporated into this Third Amendment, in their entirety, by this reference.
6l 147.80005\321 tSlzS. zl
ATTACHMENT 5
2. Affirmation Regarding Absence of Defaults. Each Party hereby represents and
warrants to the other Party that, as of the Effective Date of this Third Amendment, the non-
representing Party is not in material uncured default of the Agreement 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 Agreement. Each Party understands that the foregoing representation and
warranty constitutes material consideration to the other Party for the other Party's entry into this
Third Amendment.
3. Negotiating Period. The Parties hereby agree to amend Section 1 of the
Agreement, Negotiation Period, to extend the Negotiation Period for an additional 12 months.
The City Manager may grant two additional 90-day extensions. The Negotiation Period expires
on February 27,2021, unless extended as provided herein.
4. Effectiveness of Third Amendment. The rights and duties of the City and the
Developer established by this Third Amendment shall commence on the first date on which all of
the following have occurred: (1) execution of this Third Amendment by the authorized
representative(s) of the Developer and delivery of such executed Third Amendment to the City,
and (2) approval of this Third Amendment by the City Council.
5. 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). Pursuant to the First
Amendment Developer has made a Deposit of an additional Ten Thousand Dollars ($10,000).
Pursuant to the Second Amendment no additional deposit was required at that time. No
additional deposit will be required pursuant to the Third Amendment; however, 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 additional funds are not received within ten (10) days of the City providing written
notice pursuant to this Section, the City may terminate the Agreement.
6. Effect Upon Agreement. Except as expressly amended by this Third
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 and Third Amendments In the event of any direct conflict or inconsistency between
the terms of the Agreement and this Third Amendment, the terms of this Third Amendment shall
be controlling to the extent of such conflict or inconsistency.
[Signatures on Following Page]
6l 147.80005\32t tstzs. z2
THIRD AMENDMENT TO EXCLUSIVE NEGOTIATION AGREEMENT
(Ganahl Lumber)
IN V/ITNESS V/HEREOF, the City and the Developer have executed this Third
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
B
Name Developer
CITY:
THE CITY OF SAN JUAN CAPISTRANO
By:
Name: Benjamin Siegel, Cþ Manager
ATTEST:
Maria Morris, City Clerk
APPROVED AS TO FORM:
BEST BEST & KRIEGER, LLP
By:
Jeff Ballinger, City Attorney
6 r r 47.8000s\32 I tslzs. z3