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ED Exclusive Negotiating Agreement; Mixed Use Residential-Retail Development; Amendment 1AMENDMENT N0.1 TO AGREEMENT TO NEGOTIATE EXCLUSIVELY This Amendment No. 1 ("Amendment") to that certain Agreement to Negotiate Exclusively ("ENA") by and between the City of San Rafael, a municipal corporation ("City"), and Goldstone Management, inc. ("Developer"), is effective on the Amendment Date identified on the signature page. City and Developer may be referred to individually herein as a "Party", and collectively as the "Parties." RECITALS A. On November 18`h. 2019, City adopted a resolution approving and authorizing the City Manager to execute the ENA to govern the phases of negotiations for the Parties to negotiate and present to the City Council for approval a proposed Disposition and Development Agreement ("DDA") for Developer to acquire a City -owned public parking garage and develop a mixed-use residential/retail development project at the southeast intersection of Third Street and Lootens Plaza in the City of San Rafael as more particularly described therein. Pursuant to the authorization conferred by the November 18`x' 2019 resolution, the City executed the ENA with an effective date of December 7`h, 2019. B. Under the terms of the ENA, the Parties outlined a series of phased negotiations towards memorializing the terms of a DDA, which require that the Parties make a determination as to feasibility of the proposed Project, and if the Project is mutually determined to be feasible, execute a Preliminary Stage Feasibility Confirmation by no later than six months following the Effective Date, or June 7`h, 2020. C. In early 2020, following an initial outbreak in Wuhan, China in December of 2019, a pandemic outbreak of the SARS-COV-2 virus spread globally, reaching all 50 of the United States (the "COViD-19 Outbreak"). in March of 2020, to prevent spread of the viral outbreak, the Marin County Health and Human Services Department issued a shelter in place order, which has been extended through May 31, 2020. D. in light of the ongoing public health crisis under the COVID-19 Outbreak, the Parties wish to extend the Preliminary Stage of the negotiation period contemplated under the ENA for a period of six months. Additionally, the Parties wish to amend the list of items identified under the "Term Sheet" under Section 2.1 of the ENA to require that Developer submit a pro forma financial feasibility analysis for the Project as one of the performance milestones required prior to determination of Project feasibility and execution of a Preliminary Stage Feasibility Confirmation. NOW, THEREFORE, the City and Developer, for the mutual consideration described herein, agree as follows: AGREEMENTS 1. INCORPORATION BY REFERENCE. Unless otherwise specified, all subsequent references to the ENA are deemed to mean the original ENA as modified by this Amendment. Amendment #1 to ENA Page 1 of 3 OAK #4833-8029-2795 v3 This Amendment incorporates the ENA by reference, except and only to the extent that any terms or conditions of the ENA are specifically modified by this Amendment. All terms and conditions in the ENA that are not specifically modified by this Amendment remain in full force and effect. 2. AMENDMENT OF SECTION 1.2. The first two sentences of Section 1.2 of the ENA, "Negotiation Period Duration," are hereby amended and restated to read as follows [NOTE: none of the remaining sentences of Section 1.2 is modified by this Amendment]: "1.2 Negotiation Period Duration. (a) The negotiations shall be conducted in two stages, the combined duration of which shall not exceed twenty-seven (27) months, plus extensions, if any, as provided in subsection (b) below. ("Negotiation Period"). The "Preliminary Stage" of the Negotiation Period shall commence on the Effective Date and expire twelve (12) months thereafter, subject to potential extension as provided in subsection (b) below, or on the date the Parties execute a Preliminary Stage Feasibility Confirmation (defined below) whichever is earlier." 3. AMENDMENT OF SECTION 2. Section 2.2 of the ENA, "DDA Stage Tasks," is hereby renumbered as Section 2.3. A new Section 2.2, "Project Pro Forma," is hereby added to Section 2, to read as follows: "2.2 Project Pro Forma. In addition to the other Preliminary Stage tasks described in this Agreement and Schedule of Performance, prior to expiration of the Preliminary Stage of the Negotiation Period, Developer shall submit to the City for review a Project Pro Forma, demonstrating the financial feasibility of the Project under identified assumptions regarding interest rates, the availability of Project lending capital and construction costs, and including basic information regarding Project revenues and costs, sources and uses of funds, cash flow under basic accrual accounting, and any other information reasonably requested by City." 4. ENTIRE AGREEMENT. The ENA, as modified by this Amendment, constitutes the entire integrated understanding between the Parties concerning the Project. This Amendment, together with the ENA, supersedes all prior negotiations, agreements and understandings regarding the Site and proposed Project, whether written or oral. The documents incorporated by reference into this Amendment are complementary; what is called for in one is binding as if called for in all, except and only to the extent otherwise specified. In the event of any conflict between the provisions of this Amendment and the ENA, the provisions of this Amendment shall control. 5. SIGNATURES. The individuals executing this Amendment represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Amendment on behalf of the respective legal entities of Developer and City. This Amendment shall inure to the benefit of and be binding upon the parties hereto and their respective successors and authorized assigns. Amendment #1 to ENA Page 2 of 3 OAK #14833-8029.2795 v3 IN WITNESS WHEREOF, the Parties have executed this Amendment to be effective on the Amendment Date set forth below. CITY: CITY OF SAN RAFAEL, a California municipal corporation By: _ N't �- Jm chutz, City Xa acjer ATTEST: 6,- Lindsay Lara, City Cleric Date: 74-o? e ;?Q,7t 2020 ("Amendment ate") APPROVED AS TO FORM: ��, a k4iLL Robert Epstein, City A orney DEVELOPER: GOLDSTONE MANAGEMENT, INC., a Caliform corp ation By: 0 1 Paul Goldstone, President Dated: '2020 Amendment #1 to ENA Page 3 of 3 OAK #4833-8029-2795 v3 RAP �r \F� 2 �O WITH 1'tA�i CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Economic Development Project Manager: Simon Vuong Extension: x3134 or Cell Phone: (626) 616-1736 Contractor Name: Paul Goldstone Contractor's Contact: Peter Spoerl Contact's Email: Peter Spoerl <peter@rflawlIp.com> ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor N/A ❑x 5/12/2020 b. Email contract (in Word) and attachments to City Attorney c/o Laraine.Gittens@cityofsanrafael.org 2 City Attorney a. Review, revise, and comment on draft 5/12/2020 ❑X LG agreement and return to Project Manager 5/12/2020 ❑x LG b. Confirm insurance requirements, create Job on (N/A) PINS, send PINS insurance notice to contractor 3 Department Director Approval of final agreement form to send to 5/12/2020 © DO contractor 4 Project Manager Forward three (3) originals of final agreement to 5/13/2020 contractor for their signature 5 Project Manager When necessary, contractor -signed agreement ❑ N/A agendized for City Council approval * *City Council approval required for Professional Services Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 5 Date of City Council approval PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 6 Project Manager Forward signed original agreements to City Attorney with printed copy of this routing form 7 City Attorney Review and approve hard copy of signed agreement 8 City Attorney Review and approve insurance in PINS, and bonds �l (for Public Works Contracts) S�f� I 9 City Manager/ Mayor Agreement executed by City Council authorized official 10 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager t /