Loading...
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 C D E F G 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 EXCEPTIoN t{oTES: ffiffi ¡}*i*'-LEG& ors,cRl_Pïpil;;À&:e.{c*r*er{!4SHEËT I O¡ 23lE átg8[63: 3TCil€HllL DRftE, SAX JIJÀI CÆlSTMtlo, CÁFRCFSRTY,I'AE{ì lileACFÉl 171¡,68t * FÎ )ZOIÊ: Ctl ICgilERgÂL mluFÀClllill{G tl$¡lcfjAæD¡d€: Áo lffPilO': ¡60MûS& 8ÂED:12iogm!tQgÐ-¡!iglql-r'.¡tdl!ç.!ql$iaEÍrRÄL toËsrsr.,¡8vET0fi s cERTlFlcÄÏtl"j'' T\61åNrÊU¡L0R€ 8JrÊd?x *8tú i &¡i4!t¡rA,L.T, A,1 f.J,S.P,$, T"AT.IO TITLE SUÊYEYvtctr,flTY HAP!.f1J\.\...â,rflNddr@NæÀñ*f @s*c*uMÀ@ñ{¿ñffiffoüt!tuätr r w! retd'4ú6'qGrør#. ',./ÌI : ri:.if:--...ass!Rr.\{qE !!QiEJå-J0B t{0. 32-078.16"01r{G SHEET 2 ÔF 2 J0É ilo. t2.0t&16{il0 ..{ A.L.T,A. / N.S.P.S. HATD NTLE SURVËY :ry€Ë=Þ-- SCALE: l't-50' Lr0g¡iD x 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