HomeMy WebLinkAboutED Exclusive Negotiating Agreement; Mixed Use Residential-Retail Development; Amendment 2DocuSign Envelope ID: 809146A7-99BA-46CE-8294-D8BD5EC29DBF
AMENDMENT NO.2 TO AGREEMENT TO NEGOTIATE EXCLUSIVELY
This Amendment No. 2 ("Amendment") to that certain "Agreement to Negotiate
Exclusively" 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 an Agreement to Negotiate Exclusively 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`h
2019 resolution, the City executed the Agreement to Negotiate Exclusively with an effective date
of December 7`h, 2019 (the "Original Agreement"). The Original Agreement has been amended
by an Amendment No. I to Agreement to Negotiate Exclusively dated June 9, 2020. The
Original Agreement as amended by Amendment No. 1 is referred to herein as the "ENA".
B. Under the terms of the ENA, the Parties outlined a series of phased negotiations
towards memorializing the terms of a DDA, which required 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 no later than twelve months
following the Effective Date, or December 7`h, 2020, subject to further administrative extension
as provided in the ENA.
C. In December 2020, the Developer requested, and the City Manager authorized, a
one-time (90) day administrative extension, for the City to conduct an independent -appraisal of
the City Parcel to facilitate the negotiations and assist Developer in the preparation of its
financial pro -forma analysis and parking feasibility study.
D. In mid-January 2021, City received the preliminary results of the independent
appraisal and shared those findings with Developer. City and Developer now desire to: (i)
further extend the Preliminary Stage by an additional three months, (ii) authorize additional
discretionary administrative extensions not to exceed 90 days in total, (iii) increase the budgeted
amount of Preliminary Stage Costs, and (iv) augment Developer's Preliminary Stage Deposit, all
as provided herein, so the Parties can continue the negotiations and Developer can further
develop its financial pro forma and prepare and submit additional information regarding the
proposed Automated Multi -Use Garage.
NOW, THEREFORE, the City and Developer, for the mutual consideration described
herein, agree as follows:
AGREEMENTS:
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1. INCORPORATION BY REFERENCE. Unless otherwise specified, all subsequent
references to the ENA are deemed to mean the ENA, as further modified by this Amendment.
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. Section 1.2 of the ENA, "Negotiation Period
Duration," is hereby amended and restated in its entirety to read as follows:
661.2 Negotiation Period Duration.
(a) The negotiations shall be conducted in two stages, the combined duration
of which shall not exceed thirty-three (33) 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 eighteen (18) 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. During the
Preliminary Stage, the Parties shall work together in good faith to assess whether the proposed
Automated Multi -Use Garage is feasible from a technical, financial, and operational perspective,
and to negotiate a proposed DDA Term Sheet (defined below). If, on or before expiration of the
Preliminary Stage, either Party determines in its sole and absolute discretion that the proposed
Automated Multi -Use Garage is impractical or infeasible or otherwise does not meet its needs
and objectives, or that the key terms of a DDA Tenn Sheet as proposed by the other Party are
unacceptable to such Party, then the Party making such determination may terminate this
Agreement by written notice to the other Party. If, however, on or before expiration of the
Preliminary Stage each Party determines in its sole and absolute discretion that the proposed
Automated Multi -Use Garage appears to be feasible and is likely to meet such Party's needs and
objectives and that the DDA Term Sheet is acceptable to such Party, then the Parties shall
memorialize the achievement of such milestones in writing ("Preliminary Stage Feasibility
Confirmation") and, in such event, the Parties shall proceed to the DDA Stage (defined below)
of the Negotiation Period. If the Parties have not executed a Preliminary Stage Feasibility
Confirmation by the expiration of the Preliminary Stage (as it may be extended as provided for in
subsection (b) below), then this Agreement shall terminate and neither Party shall have any
further rights or obligations under this Agreement, except for those obligations which by their
terms survive expiration or termination hereof. The "DDA Stage" of the Negotiation Period
shall commence, if at all, on the effective date of the Preliminary Stage Feasibility Confirmation
and expire fifteen (15) months thereafter, subject to potential extension as provided in subsection
(b) below. Commencement of the DDA Stage shall also be contingent upon Developer
delivering the DDA Stage Deposit to City as provided in Section 3.3 below. During the DDA
Stage, the Parties will endeavor to negotiate and draft a comprehensive DDA and undertake the
other DDA Stage tasks described in the Schedule of Performance.
(b) The Preliminary Stage and/or DDA Stage of the Negotiation Period may
each be extended from time to time if the City Manager determines in his or her sole discretion
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that the Parties have made substantial progress toward meeting the performance milestones
identified in this Agreement and in the Schedule of Performance to merit such extension.
However, the cumulative total of all such extensions granted by the City Manager shall not
exceed ninety (90) days."
3. AMENDMENT OF SECTION 3.2. The first sentence of Section 3.2 of the ENA,
"Preliminary Stage Costs", is hereby amended and restated in its entirety to read as follows:
"Developer's obligation to reimburse City Costs incurred during the Preliminary Stage
("Preliminary Stage Costs") will be capped at $65,000 Thousand Dollars ($65,000)."
4. INCREASE IN AMOUNT OF PRELIMINARY STAGE DEPOSIT. Concurrently with
its execution of this Amendment, Developer shall augment the Preliminary Stage Deposit by
delivering to City immediately available funds in the amount of $15,000 (the "Additional
Preliminary Stage Deposit"). From and after the Amendment Date, all references to
"Preliminary Stage Deposit" in the ENA, as amended by this Amendment, shall be deemed to
refer to the original Preliminary Stage Deposit, plus the Additional Preliminary Stage Deposit.
5. ENTIRE AGREEMENT. The ENA, as further modified by this Amendment, constitutes
the entire integrated understanding between the Parties concerning the Project. This Amendment
supersedes all prior negotiations, agreements and understandings regarding the ENA, 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. If any provision in an exhibit to this Amendment conflicts with or is
inconsistent with a provision in the body of this Amendment, the provisions in the body of this
Amendment will control over any such conflicting or inconsistent provisions.
6. 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.
IN WITNESS WHEREOF, the Parties have executed this Amendment to be effective on
the Amendment Date set forth below.
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DATED:`� , 2021
( Amendment Date")
ATTEST:
f • /1 /��l'�iM��l •
r Lindsay Lara, City Clerk
APPROVED AS TO FORM:
By. 1- -.16 io ".
Robert Epstein, City Alkbrney
DATED:
2021
CITY:
CITY OF SAN RAFAEL, a California
municipal corporation
By: xS
Ji Sc Utz, Ci M nager
DEVELOPER:
GOLDSTONE MANAGEMENT INC., a
California corporation E
DMUS'ned by:
4/12/2021 kGOI�(1-��ryZ,
By: Zo3EEDD565B:445
Name: Paul Goldstone
Title: President
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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: Danielle O'Leary Extension: x3460 or Cell Phone: (707) 495-3393
Contractor Name: Paul Goldstone
Contractor's Contact: Peter Spoerl Contact's Email: Peter Spoerl <peter@rflawllp.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
4/20/2021
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 agreement
❑
and return to Project Manager
❑ (N/A)
b. Confirm insurance requirements, create Job on
PINS, send PINS insurance notice to contractor
3
Department Director
Approval of final agreement form to send to
3/15/2021
contractor
_DRO
4
Project Manager
Forward three (3) originals of final agreement to
4/14/2021
❑X
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
3/15/2021
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,2
! / (
r
#(for
VA
Public Works Contracts)
9
City Manager/ Mayor
Agreement executed by City Council authorized
official
10
City Clerk
Attest signatures, retains original agreement and
AV
forwards copies to Project Manager