HomeMy WebLinkAboutED Amendment of Agreement to Negotiate Exclusively with Goldstone Management, Inc____________________________________________________________________________________
FOR CITY CLERK ONLY
Council Meeting: March 15, 2021
Disposition: Resolution 14898
Agenda Item No: 7.b
Meeting Date: March 15, 2021
SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: Economic Development
Prepared by: Danielle O’Leary,
Director of Economic Development & Innovation
City Manager Approval: _______
TOPIC: AMENDMENT OF AGREEMENT TO NEGOTIATE EXCLUSIVELY WITH
GOLDSTONE MANAGEMENT, INC.
SUBJECT: RESOLUTION APPROVING AND AUTHORIZING THE CITY MANAGER TO
SIGN AN AMENDMENT NO. 2 TO EXTEND THE AGREEMENT TO
NEGOTIATE EXCLUSIVELY WITH GOLDSTONE MANAGEMENT, INC.
REGARDING REDEVELOPMENT OF 1009 AND 1001 FOURTH STREET, 924-
926 THIRD STREET, AND THE THIRD STREET AND LOOTENS PLAZA
PARKING GARAGE
RECOMMENDATION:
Adopt the resolution approving and authorizing the City Manager to execute an Amendment No. 2
to extend the Agreement to Negotiate Exclusively with Goldstone Management, Inc., retroactively
from March 6, 2021.
BACKGROUND:
The City entered into an Agreement to Negotiate Exclusively (ENA) with Goldstone Management
Inc. (“Developer”), on December 7th, 2019. The ENA provides, among other things, for the parties
to negotiate a proposed Disposition and Development Agreement (“DDA”) pursuant to which
Developer would acquire the City-owned public parking garage located near the southeast
intersection of Third Street and Lootens Plaza (the “City Parcel”) and develop on the City Parcel
and certain adjacent parcels owned by Developer a mixed-use residential/retail development
project. The adjacent parcels owned by Developer include the three contiguous parcels at 1009
4th St, 1001 4th St, and 924-926 3rd St. improved with three commercial structures and an
approximately 30-space, street level parking lot (the “Developer Parcels”).
Under the ENA, the Developer proposes to acquire an ownership interest in the City Parcel and to
merge the City Parcel with the Developer Parcels, demolish existing structures, and build upon
the entire site a mixed-use residential/retail development, including a market hall style food
emporium (“Project”). A new, fully automated parking garage (“Automated Multi-Use Garage”)
would replace the 171 public parking spaces located in the existing parking structure on the City
Parcel and provide additional private parking to serve the retail and residential components of the
proposed Project.
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
In June 2020 in response to the COVID-19 pandemic, City and Developer entered into
Amendment No. 1 to ENA extending the negotiating period by six months. As permitted under the
ENA, the negotiating period was further extended by the City Manager for an additional 3 months
in December 2020. The terms of the ENA as so amended stipulate that the Negotiation Period
would not exceed thirty (30) months. The Negotiation Period includes a Preliminary Stage (15
months) and a DDA Stage (15 months). The primary purpose of the Preliminary Stage is to
determine whether an automated parking garage appears to be feasible and attempt to agree
upon a Term Sheet setting forth the key terms of a DDA.
Successful completion of the Preliminary Stage would result in a Preliminary Stage Feasibility
Confirmation and would allow the commencement of the DDA stage.
PHASE 1 - PRELIMINARY STAGE PROGRESS:
• Since the Effective Date of the ENA on December 7th, 2019, a preliminary parking plan (a
description of the project parking plan and a design, operation, and service description of
the automated parking system by U-Tron, the vendor) has been submitted. In April of
2020, additional background studies were submitted to the City, including Developer’s
feasibility estimates, an appraisal of the parking garage, and a project parking requirement
analysis.
• The City has since engaged with Watry Design, Inc. to assist with the peer review of the
automated parking plan. The City has continued to work with outside legal counsel, Burke,
Williams & Sorensen, LLP, and the City’s financial consultant, Keyser Marston Associates,
in reviewing the submitted plans and studies.
• Economic Development has collaborated with various other City departments, including
the Community Development Department, Department of Public Works, and Parking
Services to ensure the proposal is consistent with City goals, policies, and requirements.
ANALYSIS:
Developer requested and paid for an independent City appraisal of the Lootens garage to help
them develop their parking feasibility study and project pro-forma analysis. The contract extension
provided time for the City to conduct an independent appraisal for the Lootens parking garage.
The City, through its outside legal counsel, contracted with Chapman & Associates, and an
appraisal was conducted and completed in mid-January 2021. The Developer received the City’s
appraisal and provided comments back to the City in late February.
AMENDMENT:
The Developer is requesting an additional (3) three-month Preliminary Stage Negotiating Period
extension to conduct negotiations, prepare and submit the parking feasibility study, and develop
the Project pro-forma analysis needed for the parties to make a determination as to Project
feasibility. The parties will also increase the budget for Preliminary Stage Costs that Developer is
obligated to reimburse to City and Developer will augment its existing Preliminary Stage Deposit
by depositing with City an additional sum of $15,000. All other terms of the ENA not specifically
modified by the amendment will remain in full force and effect.
In short, the Negotiation Period will now last (33) months (three additional months from the 30
months under the existing ENA, as previously amended) and moves the Preliminary Stage target
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3
date from March 6, 2021 to June 6, 2021. The DDA Stage duration remains at fifteen (15) months,
with a new target date of September 6, 2022.
Administrative Extension:
Amendment No. 2 also authorizes the City Manager to approve further administrative extensions
of the Negotiating Period not to exceed an additional 90-days in total, if the City Manager
determines in his sole discretion that the parties have made substantial progress toward meeting
the performance milestones identified in the ENA.
FISCAL IMPACT:
City staff has been monitoring and providing regular oversight over the Developer submitted
deposit of $50,000. To ensure City’s costs are not exceeded during the Preliminary Stage,
Developer has agreed to augment this deposit by an additional $15,000 to cover additional City
costs anticipated to be incurred during the extended Preliminary Stage of the Negotiating Period.
Therefore, there will be no fiscal impact to the City if the amendment to the ENA is approved.
OPTIONS:
1. Adopt the resolution approving Amendment No. 2 to the ENA as proposed.
2. Request further information.
RECOMMENDED ACTION:
Adopt the resolution approving and authorizing the City Manager to execute Amendment No. 2 to
the ENA with Goldstone Management, Inc.
ATTACHMENTS:
1. Formal Request for ENA Extension, Dated March 3, 2021
2. Amendment No.2 to Agreement Negotiate Exclusively with Goldstone Management, Inc.
3. Resolution approving Amendment No. 2 to ENA
4. Original ENA Agreement to Negotiate with Goldstone Management, Inc. (December 2019)
5. Amendment No.1 to Agreement to Negotiate Exclusively with Goldstone Management, Inc.
(June 2020)
6. ENA Resolution 14802 Amendment No. 1 (June 2020)
7. Administrative Extension Memo (December 2020)
Eric Sternberger
eric@rflawllp.com
ATTORNEYS AT LAW
1101 FIFTH AVENUE, SUITE #100
SAN RAFAEL, CA 94901-3246
telephone 415.453.9433
facsimile 415.453.8269
www.rflawllp.com
Client File No: 7588:1
March 3, 2021
VIA EMAIL ONLY: PAUL.JENSEN@CITYOFSANRAFAEL.ORG
Paul Jensen, Community Development Department Director
City of San Rafael
1400 Fifth Avenue
San Rafael, CA 94901
RE: Proposed Extension of Exclusive Negotiating Agreement with Goldstone
Management (San Rafael Marketplace)
Dear Paul:
Per our recent discussions, I am writing on behalf of our client Goldstone Management, Inc.
(“Goldstone”) to submit a formal request that you bring an item for consideration before the
San Rafael City Council to extend the end of the Preliminary Stage of the “Agreement to
Negotiate Exclusively” (“the ENA”) between the City and Goldstone for a period of six months.
In light of the ongoing public health crisis under the COVID-19 outbreak, we believe that it is
necessary to extend the Preliminary Stage of the negotiation period contemplated under the
ENA for a period of six months. Under these challenging and unprecedented circumstances,
the process of conducting basic negotiations and submitting and having the City peer review
performance milestones outlined in the ENA simply cannot proceed at the pace that was
anticipated under the ENA, and we believe that a second extension is warranted. While the ENA
does allow for administrative extensions to be authorized by the City Manager, we think that it
is in the interest of both parties to preserve these potential administrative extensions in the
event of additional unforeseen delays. As we have demonstrated, however, Goldstone remains
firmly committed to completing the negotiation process outlined under the ENA and has made
considerable progress in completing performance milestones outlined under the ENA.
Goldstone looks forward to memorializing a Disposition and Development Agreement with the
City, and constructing the project as soon as economic conditions permit.
t~
Ragghianti I Freitas LLP
page 2 of 3
Since the Effective Date of the ENA on December 7, 2019, Goldstone has worked diligently
with its consultants and experts to prepare and deliver the work product and background
studies necessary to complete the Preliminary Stage milestones identified under the ENA. On
April 7, 2020, we provided the City with background studies and information intended to
assist the City in conducting feasibility analyses and peer review of the parking, engineering,
construction and cost analyses anticipated under the ENA. The documents included an
“Appraisal of Parking Garage (assumed to be Vacant),” PSG File #847263, prepared by
Property Sciences and dated February 9, 2020; the “Report: Feasibility Estimate, San Rafael
Parking Lot, Goldstone Management Company,” prepared by Turner and Townsend and
dated January 30, 2020; and the “Parking Analysis for the Proposed San Rafael Market Hall
Project,” prepared by Abrams Associates and dated March 27, 2020. On Friday, May 1, 2020,
we furnished the City with a full Parking Plan to enable the City to evaluate the operation and
joint use of the proposed automated parking structure, comprising both technical feasibility
and cost analyses completed by U-Tron and Michael Zucker and Associates, as well as a basic
outline of proposed ownership and operational details as required under Section 2.1 of the
ENA. On February 24, 2021, we provided detailed comments to the appraisal prepared on
behalf of the City by Chapman & Patton.
All of these studies are intended to assist the Parties in reaching and later memorializing
conceptual agreement on the Preliminary Stage tasks set forth under the ENA.
In short, Goldstone is committed to continuing this process and finalizing a Preliminary Stage
Feasibility Confirmation as outlined under the ENA. In light of the challenges of the
continued regional shelter in place orders, the City, on December 22, 2020 provided an
administrative extension until March 6, 2021. However, we request that the City Council
approve a simple amendment to the ENA to further extend the end of the Preliminary Stage
from March 6, 2021, until September 6, 2021. We ask that you make appropriate
arrangements to have this calendared as an item for consideration at the City Council’s first
meeting in March. We have attached a proposed draft amendment to this letter for your
Counsel’s review.
Please let me know if you have any questions or concerns. We look forward to working with
you and your staff to move this exciting project forward for the City.
Very Truly Yours,
Eric Sternberger
t~
Ragghian ti IF rei tas LLP
page 3 of 3
Enclosure
cc: Danielle O’Leary, Director of Economic Development and Innovation
Simon Vuong, Economic Development Coordinator
Gerald J. Ramiza, Burke, Williams and Sorensen, LLP
Client
t~
Ragghian ti IF rei tas LLP
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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:
Amendment #2 to ENA Page 1 of 4
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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
Amendment #2 to ENA Page 2 of 4
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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
Amendment #2 to ENA Page 4 of 4
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1
RESOLUTION NO. 14898
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL APPROVING AND
AUTHORIZING THE CITY MANAGER TO SIGN AN AMENDMENT NO. 2 TO EXTEND THE
AGREEMENT TO NEGOTIATE EXCLUSIVELY WITH GOLDSTONE MANAGEMENT, INC.
REGARDING REDEVELOPMENT OF 1009 AND 1001 FOURTH STREET, 924-926 THIRD
STREET, AND THE THIRD STREET AND LOOTENS PLAZA PARKING GARAGE
WHEREAS, the City of San Rafael owns the real property and parking garage located at
Third Street and Lootens Plaza ("City Parcel"); and
WHEREAS, the City adopted a goal to “provide a vibrant Downtown” in “our Vision of
Downtown” in 1993, which was later incorporated into the goals of the General Plan as Goal 6.
General Plan Goal 6 includes the following implementation policies:
• NH 16 to substantially expand Downtown’s economic success and increase
opportunities for retail, office and residential development;
• NH 22 to create a popular and attractive residential environment that contributes to
the activity and sense of community in Downtown; and
• NH 34 to encourage activities that will promote the Fourth Street Retail Core as
being “Alive after Five”; and
WHEREAS, one of the City Council goals is to provide neighborhood and economic
vitality by supporting the development of key Downtown sites, and the City Council’s Economic
Development Committee has adopted "support development of key sites such as 1001-1009
Fourth Street" as one of its eight priorities; and
WHEREAS, Goldstone Management, Inc. ("Developer") has proposed redeveloping the
City Parcel and adjoining properties that Developer owns at 1009 and 1001 Fourth Street and
924-926 Third Street, into a proposed mixed-use residential/retail development, including a
market hall-style food emporium and a fully automated parking garage ("Project"); and
WHEREAS, Developer and City are parties to an Agreement to Negotiate Exclusively
with an effective date of December 7, 2019, as amended by an Amendment No. 1 to Agreement
to Negotiate Exclusively dated June 9, 2020 (as so amended, the “ENA”); and
WHEREAS, the ENA provides for a Preliminary Stage of the Negotiation Period (as such
terms are defined in the ENA) which, after extensions, was to expire on March 6, 2021; and
WHEREAS, Developer has requested that the City further extend the Preliminary Stage
of the Negotiation Period by an additional 3 months with the potential for additional
administrative extensions not to exceed 90 days in total; and
WHEREAS, the staff report accompanying this Resolution provides additional
information about the request and rationale for the extension request due to the COVID-19
outbreak, and Developer’s request for a City-prepared appraisal to assist with project pro-forma
analysis and parking garage feasibility determination; and
WHEREAS, while City and Developer have made progress towards completing the
milestones to be achieved during the Preliminary Stage, additional time is needed for the parties
to make their respective feasibility determinations regarding the proposed Project, including the
2
proposed Automated Multi-Use Garage, and, therefore, staff recommends that the City Council
approve the attached Amendment No. 2 to the ENA; and
WHEREAS, Developer has agreed to augment its Preliminary Stage Deposit by
depositing with City an additional $15,000 to pay the additional costs anticipated to be incurred
by City during the extended Preliminary Stage negotiations; and
WHEREAS, amending the ENA is not committing the City to grant any land use
approvals for the proposed Project or to approve any further agreement with the Developer;
NOW THEREFORE BE IT RESOLVED by the City Council of the City of San Rafael as
follows:
1. The City Council hereby finds and determines that the above recitals are true,
correct and incorporated herein.
2. The City Council hereby approves and authorizes the City Manager to sign on
behalf of the City Amendment No. 2 to the ENA in substantially the form submitted to the City
Council in connection with the consideration of this Resolution, subject to such minor changes
as the City Manager and City Attorney may approve, provided, however, that nothing in this
Resolution or the conduct of the negotiations pursuant to the ENA, as amended, shall be
deemed to commit the City to approve any land use approvals for the proposed Project or to
approve any further agreement with the Developer.
3. The City Council authorizes and directs the City Manager and his designees to
take such steps as are reasonable and necessary to ensure performance of the City's
obligations under the ENA, as further amended by Amendment No. 2, and to carry out the terms
and conditions of the ENA, as so amended.
4. This Resolution shall take immediate retroactive effect upon adoption.
I, LINDSAY LARA, Clerk of the City of San Rafael, hereby certify that the foregoing
resolution was duly and regularly introduced and adopted at a regular meeting of the City
Council of the City of San Rafael held on the 15th day of March 2021, retroactive to March 6,
2021, by the following vote:
AYES: COUNCILMEMBERS: Bushey, Hill, Kertz, Llorens Gulati & Mayor Kate
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
LINDSAY LARA, City Clerk
AGREEMENT TO NEGOTIATE EXCLUSIVELY
THIS AGREEMENT TO NEGOTIATE EXCLUSIVELY ("Agreement") dated for
reference purposes as of \ "2-11 2019 ("Effective Date"), is entered into by and between
the City of San Rafael, a municipal corporation ("City"), and Goldstone Management Inc., a·
California corporation ("Developer"). City and Developer are sometimes referred to
individually herein as a "Party", and collectively as the "Parties".
A.City owns that certain real property designated as APN: 011-263-22 ("City
Parcel") located near the southeast corner of Third Street and Lootens Plaza in downtown San
Rafael, as depicted on the "Site Map" attached hereto as Exhibit A. The City Parcel is improved
with an existing 171-space two-story public parking garage.
B.Developer owns three parcels immediately adjacent to the City Parcel, designated
as APNs 011-263-18 (1009 4th Street, San Rafael),011-263-04 (1001 4th Street, San Rafael) and
011-263-16 (924-926 3rd Street, San Rafael) (the "Developer Parcels" and, collectively with the
City Parcel, the "Site") as depicted on the Site Map. The Developer Parcels are improved with
three commercial structures and an approximately 30-space, street level parking lot.
C.Developer proposes to acquire an ownership interest in the City Parcel, and to
effect a voluntary merger of the City Parcel with the Developer Parcels in order to clear the
existing improvements and build upon the Site a mixed-use residential/retail development,
including a market hall style food emporium and a fully automated parking garage ("Automated
Multi-Use Garage") that would replace the 171 public parking spaces located in the existing
parking structure on the City Parcel and provide additional private parking to serve the retail and
residential components of the proposed Project (collectively, the "Project").
D.City and Developer desire to enter into this Agreement setting forth the terms
under which City and Developer will diligently and in good faith endeavor to accomplish the
following: (1) during a Preliminary Stage (defined below) of negotiations, for the Parties to (i)
determine, each in its sole and absolute discretion, whether an automated parking garage of the
type proposed by Developer appears to be feasible from a financial, design and operational
perspective and to otherwise meet the City's and Developer's respective parking objectives, and
(ii)attempt to agree upon a Term Sheet setting forth the key terms of a DDA ( defined below)
with respect to the Site and proposed Project; and (2) if, and only if, the Parties memorialize their
successfully completion of the Preliminary Stage of the negotiations via a Preliminary Stage
Feasibility Confirmation, for the Parties to proceed to a DDA Stage of negotiations during which
the Parties would negotiate and draft a comprehensive Disposition and Development Agreement
("DDA") setting forth the terms under which City would transfer the City Parcel to Developer
and Developer would develop the proposed Project, including the Automated Multi-Use Garage,
on the Site and Developer and its successors and assigns, at its and their expense, would agree to
operate the Automated Multi-Use Garage and provide ongoing public parking in perpetuity for
. 1
COPY
the benefit of City and the public in accordance with agreed upon pricing requirements to be set
forth under the terms of the DDA.
AGREEMENTS:
CITY AND DEVELOPER HEREBY AGREE AS FOLLOWS:
1. NEGOTIATION PERIOD
1.1 Good Faith Negotiations. City and Developer, acknowledging that time is of the
essence, agree for the Negotiation Period set forth in Section 1.2 below, to negotiate diligently
and in good faith and endeavor to perform the tasks and due diligence necessary for successful
completion of the Preliminary Stage, and if the Preliminary Stage conditions are satisfied, for the
Parties to endeavor to complete the DDA Stage tasks which, if successfully concluded, would
culminate in presentation of a comprehensive DDA to the City Council for its consideration and
potential approval. City agrees, for the Negotiation Period, not to negotiate with, solicit offers or
proposals regarding, or respond to inquiries from ( other than to notify the inquiring party, person
or entity that City is subject to an agreement to negotiate exclusively), any other person or entity
regarding the conveyance of the City Parcel and/or the development of the Site or any portion
thereof. ADDA resulting from the negotiations hereunder shall become effective only if and
after such DDA has been considered and approved by the City Council at a duly noticed public
meeting called for such purpose. If a DDA is executed by City and Developer, the DDA shall
thereafter govern the rights and obligations of the Parties.
1.2 Negotiation Period Duration.
(a) The negotiations shall be conducted in two stages, the combined
duration of which shall not exceed twenty-one (21) 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 six (6) 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 Term 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
2
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) Extensions. 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 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.
2. NEGOTIATION PERIOD TASKS AND PERFORMANCE MILESTONES.
2.1 Preliminary Stage Tasks. During the Preliminary Stage of the Negotiation Period,
Developer, in addition to undertaking the other Preliminary Stage tasks set forth in the Schedule
of Performance, will retain Abrams Associates, as its parking consultant, to prepare for City
review and input a detailed plan describing all aspects of operation and joint use of the proposed
Automated Multi-Use Garage ("Parking Plan"), including:
(a) The proposed design of the Automated Multi-Use Garage, including the
proposed automated parking solutions,
(b) City's access, use and/or ownership or other rights with respect to the
public space portions of the Automated Multi-Use Garage,
( c) Plans for ensuring the ongoing operation and maintenance of the public
parking portions of the Automated Multi-Use Garage, and of the Automated Multi-Use
Garage as a whole,
( d) Funding of long term operation and maintenance costs,
( e) Method of establishing and adjusting public parking rates to ensure those
rates will be consistent with public parking rates in other City owned garages and lots,
( f) Designation of flex spaces, if any, which are publicly available during
regular daytime and early evening business hours but revert to residential use at night.
City will retain Watry Design, Inc. or such other parking consultant as City may select as
its parking consultant, the costs of which shall be included in City Costs (defined below) and
3
reimbursed by Developer, to peer review Developer's Parking Plan and advise City on changes
or adjustments that may be required to meet City's needs.
In addition to the Parking Plan related tasks and other Preliminary Stage tasks described
in the Schedule of Performance, during the Preliminary Stage of the Negotiation Period,
Developer and City will endeavor to negotiate and draft a mutually acceptable term sheet
("Term Sheet") setting forth the key terms for inclusion in the proposed DDA. The Term Sheet
will address, among other things, the following:
i) Transfer value of the City Parcel and the existing improvements thereon
based on a fair market value appraisal methodology agreeable to the Parties;
ii) Details of the proposed Project land use and operational characteristics,
generally consisting of a European-style Market Hall facility with numerous and varied
food vendors selling both prepared food and specialty groceries;
iii) Details of the proposed Project structures, in plan and elevation, along
with conceptual renderings;
iv) A budget for the anticipated amount of City Costs ( defined below) to be
incurred during the DDA Stage, if the Parties proceed to such stage (collectively,
"Anticipated DDA Stage Costs"), all of which shall be paid by Developer, and the
amount and form of a security deposit ("DDA Stage Deposit") guaranteeing Developer's
payment of same;
v) Details of Developer's proposed use of Lauren's Place, the public civic
plaza and right of way adjacent to the City parcel and Developer's Parcels, for outdoor
seating as well as access and potential ingress and egress into the proposed Market Hall
facility via grant of easement or license or encroachment permit as the parties may
mutually determine;
vi) Agreed-upon timelines for entitlements and documentation necessary for
commencement of construction;
vii) Conditions precedent for close of escrow, including identification of all
land use approvals, building permits, and construction contracts with a general contractor
that Developer will have to obtain;
viii) Financing details, including any debt and equity financing that Developer
may have to obtain, and appropriate evidence of debt and equity commitments that
Developer will need to provide to City's financial consultant prior to City's consideration
of a DDA for approval and prior to closing;
ix) City remedies, including reverter rights, if Developer fails to timely
commence or complete construction of the proposed Project by specified dates;
4
x) City remedies if Developer or its successors or assigns fails to
continuously operate and maintain the public portions of the Automated Multi-Use
Garage following initial construction thereof;
xi) Prevailing wage requirements for all stages of construction;
xii) Details of the parking agreement between City and Developer that would
govern the Automated Multi-Use Garage;
xiii) Outline of the City entitlement process to be administered and processed
separately from the DDA, the costs of which will be borne exclusively by Developer; and
xiv) Physical and environmental investigation and Site testing.
2.2 DDA Stage Tasks. If the Parties proceed to the DDA Stage of the Negotiation
Period, then City and Developer, in addition to undertaking the other DDA Stage tasks as set
forth in the Schedule of Performance, will endeavor to negotiate and draft a mutually acceptable
DDA, including ancillary agreements, to be considered for approval by the City Council prior to
expiration of the Negotiation Period.
3. DEVELOPER PAYMENT OF CITY COSTS.
3.1 General. Subject to the terms set forth below, Developer shall be responsible for
paying all City Costs ( defined below) incurred in connection with the implementation of this
Agreement, including: (a) during the Preliminary Stage, the City Costs associated with
evaluation of the feasibility of the Automated Multi-Use Garage and the negotiation and drafting
of the DDA Term Sheet, and (b) during the DDA Stage, the City Costs associated with the
negotiation and drafting of the proposed DDA and preparation of an appropriate California
Environmental Quality Act ("CEQA") document addressing the environmental impacts of the
proposed Project. As used in this Agreement, "City Costs" means and includes all of City's
reasonable out-of-pocket costs and expenses paid to third-party consultants and attorneys,
including City's outside legal counsel, Burke Williams & Sorensen LLP; City's financial
consultant, Keyser Marston Associates, Inc., and City's parking consultant, Watry Design, Inc.,
and, if applicable, planning and CEQA consultants, in connection with evaluation of the
. proposed Automated Multi-Use Garage; negotiation and drafting of a DDA Term Sheet;
drafting, negotiation and production of the DDA and ancillary agreements; preparation of an
appropriate CEQA document; and other work product as required to implement the Project.
3.2 Preliminary Stage Costs. Developer's obligation to reimburse City Costs incurred
during the Preliminary Stage ("Preliminary Stage Costs") will be capped at Fifty Thousand
Dollars ($50,000). Concurrently with Developer's execution of this Agreement, Developer shall
deliver to City cash or other immediately available funds in the amount of Fifty Thousand
Dollars ($50,000) ("Preliminary Stage Deposit") as security for Developer's obligation to pay
Preliminary Stage Costs as provided herein. Developer's obligation to reimburse all such
Preliminary Stage Costs shall survive the expiration or termination of this Agreement with
respect to any and all Preliminary Stage Costs incurred on or before the date which is ten (10)
5
days following the date of such expiration or termination, provided, however, that in no event
will Developer's liability for Preliminary Stage Costs exceed the amount of the Preliminary
Stage Deposit then held by City.
3.3 DDA Stage Costs. As provided for under Section 2.1, subsection iv above,
Developer and City shall endeavor to reach mutual agreement on a budget for the Anticipated
DDA Stage Costs and the amount and form of a DDA Stage Deposit as Preliminary Stage
milestones. Concurrently with the Parties execution of the Preliminary Stage Feasibility
Confirmation, Developer shall deliver to City cash or other immediately available funds in the
full amount of the DDA Stage Deposit as security for Developer's obligation to pay City Costs
incurred during the DDA Stage as provided in this Section 3. If City determines that in order to
carry out its DDA Stage obligations under this Agreement, the DDA Stage City Costs will
exceed the Anticipated DDA Stage Costs, City shall give written notice to Developer, which
written notice (each, an "Additional DDA Stage Cost Notice") shall include detailed
projections, prepared in good faith to the best of the City's ability, of all future City Costs to be
incurred during the remainder of the DDA Stage. Upon receipt of an Additional DDA Stage
Cost Notice, Developer shall then have ten (10) days to approve or disapprove in writing City's
request for approval of the increase in Anticipated DDA Stage Costs. If Developer approves an
Additional DDA Stage Cost Notice, Developer's approval shall be accompanied by delivery of
additional DDA Stage Deposit funds in the amount of the additional anticipated City Costs as
approved by Developer. If Developer has disapproved or failed to provide written approval of
such request to City within such ten (10) day period, this Agreement may be terminated by City
upon five (5) days' written notice to Developer. If City terminates this Agreement as provided in
this Section 3.3, City shall promptly return the unexpended and uncommitted portion of the DDA
Stage Deposit (including any augmentations of same), if any, to Developer and, except for those
obligations which by their terms survive termination hereof, neither Party shall have any further
rights against or liability to the other Party under this Agreement. The approval of any proposed
increase ~n Anticipated DDA Stage Costs shall be deemed an amendment of this Agreement.
Developer's obligation to pay for all such DDA Stage City Costs shall survive the expiration or
termination of this Agreement with respect to any and all City Costs incurred on or before the
date which is ten (10) days following the date of expiration or termination as set forth herein,
provided, however, that in no event will Developer's liability for DDA Stage City Costs exceed
the amount of the DDA Stage Deposit, including any augmentations of same, then held by City.
3 .4 Developer Acknowledgments. Developer acknowledges and agrees that if it fails
to timely approve a requested augmentation of the Anticipated DDA Stage Costs budget or
timely augment the DDA Stage Deposit as provided above, City shall have no obligation to
continue incurring any City Costs or continue negotiating in connection with the proposed
Project or DDA and City may terminate this Agreement upon written notice to Developer as
provided in Section 3 .3 above. Developer further covenants that if City ceases negotiation of the
DDA or refuses to continue incurring City Costs as a result of Developer's failure to approve
such requested augmentation of the Anticipated DDA Stage Costs budget or augment the DDA
Stage Deposit as described above, Developer shall not directly or indirectly initiate any litigation
against City or its officials, employees, agents, contractors or volunteers in connection with such
City action.
6
3.5 City Right to Draw on Deposits. Subject to the limitations set forth above, City
may pay all City Costs from the Preliminary Stage Deposit or DDA Stage Deposit (including any
augmentations of same) as applicable as such City Costs are incurred. The Preliminary Stage
Deposit and DDA Stage Deposit shall be the sole and exclusive remedy of the City for any and
all City Costs .. City shall transmit to Developer monthly a copy of each invoice, bill or other
evidence that City has incurred as City Costs, including itemized invoices and receipts for any
reimbursable expenses. City's legal and advisory services invoices shall be redacted as
necessary to preserve attorney-client privilege.
3.6 Close Out Period. In the event that either City or Developer terminates this
Agreement, then (i) City shall cease incurring City Costs with respect to the proposed Project,
other than Project close out expenses which City may continue to incur for up to ten (10) days
following expiration or termination of this Agreement ("Close Out Period"); (ii) Developer
shall remain obligated to pay all City Costs incurred prior to the effective date of expiration or
termination and Project close out expenses incurred during such Close Out Period, solely to the I .
extent of the Preliminary Stage Deposit or DDA Stage Deposit (including any augmentations of
same) held by City on the date this. Agreement is terminated; and (iii) Developer shall have no
responsibility to pay or reimburse City for any City Costs incurred with respect to the proposed
Project after the date of expiration or termination other than Project close out expenses incurred
during the Close Out Period.
4. RIGHT OF ENTRY.
4.1 Access Agreement and City Reports. City shall provide Developer reasonable
access to all portions of the City Parcel and improvements thereon for the purpose of obtaining
data and making surveys and tests necessary to evaluate the development potential of the City
Parcel and otherwise to conduct the land use due diligence relating to the Project as
contemplated hereunder, including, without limitation, the right to make borings to investigate
the soils and environmental condition of the City Parcel. Said right of access shall be
memorialized via an access agreement in a form reasonably acceptable to City. Developer
acknowledges and agrees that any engineering, environmental reports and related data
(collectively, "City Reports"), if any, provided by City will be and are furnished without
warranty of any kind and on the express condition that Developer will make its own independent
verification of the accuracy, reliability and completeness of such information as Developer
deems appropriate, and that Developer will not rely on the City Reports. Developer shall
determine the appropriate scope of investigation of the physical and environmental conditions of
the City Parcel and existing improvements thereon. All costs of said investigation, including a
Phase 1 and Phase 2 environmental site assessment (if required), and geotechnical and soils
investigations, if any, shall be paid and borne by Developer at its sole cost and expense and shall
not be considered part of City Costs.
5. ADDITIONAL DEVELOPER RESPONSIBILITIES
5.1 Full Disclosure. Developer shall provide to City (a) the names of its principals,
officers and/or those with managerial authority, joint venturers, negotiators, development
managers, consultants and directly-involved managerial employees (collectively, "Developer
7
Parties"); and (b) all other material information concerning Developer reasonably requested by
City. Any material change in the identity of the Developer Parties shall be subject to the
approval of City, which shall not be unreasonably withheld.
5.2 Project Cost and Revenue Documentation. Upon request by City, Developer shall
provide City or its designees with development and operating assumptions related to Project
costs and revenues by category, including detailed information regarding extra-ordinary Project
costs, if any, attributable to the Automated Multi-Use Garage or other individual Project
• components and full disclosure regarding the potential methods of financing to be used in the
acquisition of the City Parcel and development of the proposed Project. Developer
acknowledges that detailed information regarding such development and operating assumptions
will be necessary in order for City and its financial consultants to evaluate the financial terms of
the proposed DDA.
5.3 Progress Reports. Developer shall keep City advised as to the status of all work
to be undertaken by or on behalf of Developer as described in the Schedule of Performance.
Within ten (10) days following City's request, which may be made from time to time during the
Negotiation Period, Developer shall submit to City a written progress report advising City on the
status of all work being undertaken by or on behalf of Developer.
6. CITY'S RESPONSIBILITIES
6.1 City Assistance and Cooperation. City shall cooperate with Developer by
providing full disclosure regarding any existing condition of the City Parcel or the improvements
thereon. City shall share with Developer any studies and information received as part of City's
own parking and traffic flow studies as they relate to the Site or the proposed Project.
7. GENERAL PROVISIONS
7.1 No Brokerage Fees. City shall not be liable for any real estate commission or
brokerage fees which may arise from the proposed transfer ofthe City Parcel or any portion
thereof or interest therein. Developer represents and warrants to City that it has not engaged any
broker, agent or finder in connection with the acquisition or development of the City Parcel.
Developer shall be solely responsible for payment of all costs and fees payable to Developer's
Broker. Developer further agrees to indemnify, defend and hold City harmless from any claim
by any other broker, agent or finder retained by, or alleged to have been retained by, Developer.
Developer's indemnity obligations under this Section 7.1 shall survive expiration or termination
of this Agreement.
7.2 Notices. Any approval, disapproval, demand or other notice which either Party
may desire to give to the other Party under this Agreement must be in writing and may be given
by any commercially acceptable means, including personal delivery, or overnight courier, to the
Party to whom the notice is directed at the address of the Party as set forth below, or at any other
address as that Party may later designate by notice.
8
To City:
With a copy to:
With a copy to:
To Developer:
City ofSan Rafael
1400 Fifth A venue, Room 203
San Rafael, CA 94901
Attention: Jim Schutz, City Manager
City of San Rafael
1400 Fifth A venue, Room 202
San Rafael, CA 94901
Attention: Robert Epstein, City Attorney
Burke, Williams & Sorensen, LLP
1901 Harrison St., Suite 900
Oakland, CA 94612
Attention: Gerald J. Ramiza
82 Shattuck Square
Berkeley, CA 94704
Attention: Paul Goldstone
Any notice shall be deemed received on the date of delivery if delivered by personal service,
three (3) business days after mailing if sent by first class mail, and on the date of delivery or
refused delivery as shown by the records of the overnight courier if sent via overnight courier.
7.3 Limitations of this Agreement. By its execution of this Agreement, City is not
committing itself to or agreeing to undertake: (i) disposition of the City Parcel to Developer; or
(ii) any other acts or activities requiring the subsequent independent exercise of discretion by
City or any agency or department thereof. This Agreement does not constitute a disposition of
property by City. Execution of this Agreement by City is merely an agreement to enter into a
period of exclusive negotiations according to the terms hereof, reserving final discretion and
approval by City as to any DDA, including Automated Multi-Use Garage parking agreement,
and all proceedings and decisions in connection therewith. In addition, nothing in this
Agreement shall be construed to limit the application of CEQA to any DDA or the proposed
Project or control the actions of City in meeting its CEQA obligations. In fulfilling its
obligations under CEQA, City shall act independently, reserving full and complete discretion
with respect to any such CEQA approvals without reference to this Agreement. City shall not be
liable, in any respect, to Developer for its action or inaction in fulfilling its CEQA obligations.
City will not consider the approval of any DDA or the proposed Project, unless and until it has
fully reviewed and considered the environmental impacts in accordance with CEQA. City is not,
and shall not be considered to be, obligated by this Agreement, or otherwise, to approve the
proposed Project or any DDA, or any changes to the foregoing, or any other agreement. After
CEQA review, City is not obligated, by this Agreement or otherwise, to adopt findings of
9
overriding considerations for approval of or to take any other action in support of the proposed
Project or any DDA or any changes to the foregoing, nor is City precluded from rejecting the
DDA and/or proposed Project or from imposing mitigation measures as a condition of approval,
which measures mitigate or avoid direct or indirect environmental effects of the proposed
Project. If City rejects the DDA or proposed Project, this Agreement shall automatically
terminate and, except for those obligations which by their terms survive termination hereof,
neither Party shall have any further rights or obligations hereunder.
7.4 Integration. This Agreement contains the entire understanding between the
Parties relating to the matters set forth herein. All prior or contemporaneous agreements,
understandings, representations and statements, oral or written, are merged in this Agreement
and shall be of no further force or effect.
7.5 Modifications. Any alteration, change or modification of or to this Agreement, in
order to become effective, shall be made in writing and in each instance signed on behalf of each
Party.
7 .6 Severability. If any term, provision, condition or covenant of this Agreement or
its application to any Party or circumstances shall be held, to any extent, invalid or
unenforceable, the remainder of this Agreement, or the application of the term, provision,
condition or covenant to persons or circumstances other than those as to whom or which it is
held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the
fullest extent permitted by law.
7. 7 No Assignment. The qualifications and identity of Developer are of particular
concern to City. It is because of those unique qualifications and identity that City has entered
into this Agreement with Developer. Accordingly, except as otherwise expressly provided
below, Developer may not transfer or assign any or all of its rights or obligations under this
Agreement except with the prior written consent of the City, which consent shall be granted or
withheld in the City's sole absolute discretion, and any such attempted transfer or assignment
without the prior written consent of City shall be void. Notwithstanding the foregoing, the
Parties acknowledge that Developer intends to form a new special purpose entity to develop the
proposed Project and to enter into the proposed DDA. Developer may assign its rights and
obligations under this Agreement to an affiliate company or a new special-purpose entity,
provided Paul Goldstone retains full management and control of the assignee entity or entities.
7.8 Successors and Assigns. Subject to the limitations on assignment set forth in
Section 7.7 above, this Agreement shall be binding upon, and inure to the benefit of, the Parties,
their heirs, executors, personal representatives, nominees, successors and assigns.
7.9 Indemnity. Developer shall indemnify, defend (with counsel reasonably
acceptable to City), protect and hold City, and its officers, employees, elected officials, agents
and representatives, harmless from, all third-party claims, demands, damages, defense costs or
liability of any kind or nature arising directly or indirectly from the implementation of this
Agreement, including any City Parcel investigation and/or acquisition activities under Section 4
above, including damages to property or injuries to persons, accidental death, and reasonable
10
attorneys' fees and costs, whether such activities or performance thereof be by Developer or its
employees, agents, contractors or subcontractors and whether such damage shall accrue or be
discovered before or after expiration or termination of this Agreement. Developer's indemnity
obligations under this Section 7.9 shall not extend to claims, demands, damages, defense costs or
liability for property damage, bodily injury or death, to the extent (i) occasioned by the sole
negligence or willful misconduct of City or its officers, employees, elected officials, agents or
representatives; or (ii) related to the discovery or disturbance by Developer or its contractors,
subcontractors or agents during due diligence of any pre-existing hazardous materials or
hazardous substances on the City Parcel. Developer's obligations under this Section 7.9 shall
survive the expiration or other termination of this Agreement.
7 .10 Confidentiality. Any information provided by Developer to City, including
financial statements, proformas and other financial projections (whether in written, graphic,
electronic or any other form), that is clearly marked as "CONFIDENTIAL/PROPRIETARY
INFORMATION" ("Confidential Information") shall be subject to the provisions of this
Section 7.10. Subject to the terms of this Section, City shall use good faith diligent efforts to
prevent disclosure of the Confidential Information to any third parties, except as may be required
by the California Public Records Act (Government Code Section 6253 et seq.) or other
applicable local, state or federal law (collectively, "Public Disclosure Laws"). Notwithstanding
the preceding sentence, City may disclose Confidential Information to its officials, employees,
agents, attorneys and advisors, but only to the extent necessary to carry out the purpose for which
the Confidential Information was disclosed.
Developer acknowledges that City has not made any representations or warranties that
any Confidential Information received from Developer will be exempt from disclosure under any.
Public Disclosure Laws. In the event the City's legal counsel determines that the release of the
Confidential Information is required by Public Disclosure Laws, or order of a court of competent
jurisdiction, City shall notify Developer of City's intention to release the Confidential
Information. If the City Attorney, in his or her discretion, determines that only a portion of the
requested Confidential Information is exempt from disclosure under the Public Disclosure Laws,
City may redact, delete or otherwise segregate the Confidential Information that will not be
released from the non-exempt portion to be released. Developer further acknowledges that in
connection with City Council's consideration of any DDA as contemplated by this Agreement,
City will need to present a summary of Developer's financial projections, including anticipated
costs of development, anticipated project revenues, and returns on cost and investment.
If any litigation is filed seeking to make public any Confidential Information, City and
Developer shall cooperate in defending the litigation, and Developer shall pay City's reasonable
out-of-pocket costs of defending such litigation and shall indemnify City against all costs and
attorneys' fees awarded to the plaintiff in any such litigation. Alternatively, Developer may elect
to disclose the Confidential Information rather than defend the litigation. Developer's
obligations under this Section 7 .10 shall survive the expiration or termination of this Agreement.
The restrictions set forth herein shall not apply to Confidential Information to the extent
such Confidential Information: (a) is now, or hereafter becomes, through no act or failure to act
on the part of City or its representatives, generally known or available; (b) is known by the City
11
at the time of receiving such information as evidenced·by City's public records; ( c) is hereafter
furnished to City by a third party, as a matter of right and without restriction on disclosure; ( d) is
independently developed by City without any breach of this Agreement and without any use of
or access to Developer's Confidential Information as evidenced by City's records; (e) is not
clearly marked "CONFIDENTIAL/PROPRIETARY INFORMATION" as provided above
( except where Developer notifies City in writing, prior to any disclosure of the Confidential
Information, that omission of the. "CONFIDENTIAL/PROPRIETARY INFORMATION" mark
was inadvertent), or (f) is the subject of a written permission to disclose provided by Developer
to City.
7 .11 Waiver of Lis Pendens. It is expressly understood and agreed by the Parties that
no lis pendens shall be filed against any portion of the Site, including the City Parcel, or
proposed Project with respect to this Agreement or any dispute or act arising from it. The
provisions of this Section shall survive the expiration or other termination of this Agreement.
7.12 Counterparts. This Agreement may be signed in multiple counterparts which,
when signed by both parties, shall constitute a binding agreement.
7 .13 Interpretation. As used in this Agreement, masculine, feminine or neuter gender
and the singular or plural number shall each be deemed to include the others where and when the
context so dictates. The word "including" shall be construed as if followed by the words
"without limitation." This Agreement shall be interpreted as though prepared jointly by both
Parties. Titles and captions are for convenience of reference only and do not define, describe or
limit the scope or the intent of this Agreement or any of its terms.
7 .14 Authority. If Developer is a corporation, limited liability company, partnership,
trust, association or other entity, Developer and each person executing this Agreement on behalf
of Developer does hereby covenant and warrant that (a) Developer is duly incorporated or
otherwise established or formed and validly existing under the laws of its state of incorporation,
establishment or formation, (b) Developer has and is duly qualified to do business in California,
( c) Developer has full corporate, partnership, trust, association or other power and authority to
enter into this Agreement and to perform all of Developer's obligations hereunder, and (d) each
person ( and all of the persons if more than one signs) signing this Agreement on behalf of
Developer is duly and validly authorized to do so. City and each person executing this
Agreement on behalf of City does hereby covenant and warrant that (i) City is a municipal
corporation duly established and validly existing under the laws of the State of California,
(ii) City has full power and authority to enter into this Agreement and to perform all of City's
obligations hereunder, and (iii) each person (and all of the persons if more than one signs)
signing this Agreement on behalf of City is duly and validly authorized to do so.
7 .15 Limitation of Remedies. In the event of an uncured default by either Party under
this Agreement, the non-defaulting Party's exclusive remedy is to terminate this Agreement. In
no event shall either Party have the right, and each Party expressly waives the right, to seek
monetary damages of any kind (including but not limited to actual damages, economic damages,
consequential damages, or lost profits) in the event of a default by the other Party under this
Agreement.
12
7 .16 Governing Law. This Agreement, and the interpretation and enforcement thereof,
shall be governed by the laws of the State of California without regard to conflicts of law
principles.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
dates set opposite their signatures. The effective date of this Agreement shall be the date this
Agreement is signed by City.
DATED: __ ri-+-/_u_7_, --' 2019
(
Lindsay Lara, City Clerk
APPROVED AS TO FORM:
DATED: , 2019 --------
13
CITY:
CITY OF SAN RAFAEL, a California
municipal corporation
By:
DEVELOPER:
GEMENT INC., a
Califor
By:
Name: -~=1--"'-!ILl~J....=,.;....:....:;_ ______ _
Title:
By:
Name: ---------------
Title:
EXHIBIT A
DIAGRAM AND LEGAL DESCRIPTIONS OF THE CITY PARCEL
AND DEVELOPER PARCELS
Diagram of all three contiguous Developer properties.
1001 4th Street
1009 4th Street
924-926 3rd Street -.,.,, IC" .. • ..
~ .. £• J&, 't ),,. ,, ~·@t .... . 4 0 -0
, J. FI d®• ◄® " 0
Legal Description of all three contigeous properties.
1001 4 th Street, San Rafael, CA 94901
Legal Description
~ z -lie
ct:
'ct
Q..
I-
0
..,J
The land referred to in this Commitment is described as follows:
. -If)
~
Real property in the City of San Rafael, County of Marin, State of California, described as
follows:
PARCEL ONE:
EXHIBIT A
OAK #4838-4809-9222 v7
ALL THAT PORTION OF LOT ONE (1), BLOCK THIRTY (30) IN THE ORIGINAL
TOWNSITE OF SAN RAFAEL, COUNTY OF MARIN, STATE OF CALIFORNIA,
BOUNDED AND DESCRIBED AS FOLLOWS, TO-WIT:
COMMENCING AT A POINT ON THE SOUTHERLY LINE OF FOURTH STREET,
DISTANT THEREON 301 .3 FEET EASTERLY FROM THE CORNER FORMED BY THE
INTERSECTION OF THE SOUTH LINE OF FOURTH STREET WITH THE EASTERLY
LINE OF "A" STREET RUNNING THENCE WESTERLY ALONG THE SOUTHERLY LINE
OF FOURTH STREET 77-½ FEET MORE OR LESS TO THE EASTERLY LINE OF LOT
CONVEYED BY JACOB ALBERT, ET UX, TO HOWARD C. SPARROW, ET AL, BY
DEED DATED JANUARY 11, 1928, RECORDED IN BOOK 138 OF OFFICIAL RECORDS,
AT PAGE 217; THENCE SOUTHERLY ALONG SAID EASTERLY LINE OF SAID LOT,
150 FEET AND 5 INCHES; THENCE EASTERLY IN A STRAIGHT LINE 77-½ FEET
MORE OR LESS TO A POINT ON WESTERLY LINE EXTENDED OF THE TRACT
CONVEYED BY OLIVER OLSON, ET UX, TO DORAT. BURNETT, BY DEED DATED
NOVEMBER 3, 1922, RECORDED IN BOOK 8 OFFICIAL RECORDS AT PAGE 33,
DISTANT ON SAID LINE 151 FEET SOUTHERLY FROM POINT OF COMMENCEMENT;
THENCE NORTHERLY ALONG SAID LINE 151 FEET TO A POINT OF
COMMENCEMENT.
PARCEL TWO:
BEGINNING AT A POINT ON THE NORTHERLY LINE OF THIRD STREET DISTANT
THEREON 224.6 FEET EASTERLY FROM THE INTERSECTION OF THE EASTERLY
LINE OF "A" STREET WITH Form No. 1068-2 Commitment No.: 2103-5032124 ALTA
Commitment Page Number: 4 First American Title THE NORTHERLY LINE OF THIRD
STREET; THENCE NORTH 9° 51' EAST 147.02 FEET; THENCE SOUTH 79° 55' EAST
38.86 FEET ALONG THE SOUTHERLY LINE OF PARCEL 1 ABOVE DESCRIBED;
THENCE SOUTH 9° 41' WEST 65.86 FEET; THENCE SOUTH 80° 09' EAST 5 FEET;
THENCE SOUTH 9° 41' WEST 81 FEET TO THE NORTH LINE OF THIRD STREET;
THENCE WEST AND ALONG THE NORTH LINE OF THIRD STREET 44.3 FEET TO THE
POINT OF BEGINNING; BEING A PORTION OF LOT 2 IN BLOCK 30 AS LAID DOWN
AND DELINEATED UPON THAT CERTAIN MAP ENTITLED, "PLAT OF THE
TOWNSITE OF THE CITY OF SAN RAFAEL", FILED OCTOBER 14, 1873 IN RACK 2,
PULL 4, MARIN COUNTY RECORDS.
PARCEL THREE:
COMMENCING AT A POINT IN THE NORTHERLY LINE OF THIRD STREET DISTANT
161 .6 FEET EASTERLY FROM THE CORNER FORMED BY THE INTERSECTION OF
THE NORTHERLY LINE OF THIRD STREET WITH THE EASTERLY LINE OF "A"
STREET; RUNNING THENCE NORTHERLY AND PARALLEL TO THE EASTERLY LINE
OF "A" STREET 136.8 FEET, THENCE EASTERLY AT A RIGHT ANGLE A DISTANCE
OF 22 FEET, THENCE NORTHERLY AT A RIGHT ANGLE RUNNING PARALLEL TO
THE EASTERLY LINE OF "A" STREET A DISTANCE OF 9.5 FEET, THENCE EASTERLY
AT A RIGHT ANGLE RUNNING PARALLEL TO THE NORTHERLY LINE OF THIRD
STREET, A DISTANCE OF 33 FEET, THENCE SOUTHERLY AT A RIGHT ANGLE
RUNNING PARALLEL TO THE EASTERLY LINE OF "A" STREET A DISTANCE OF
146.3 FEET, THENCE WESTERLY AT A RIGHT ANGLE ALONG THE NORTHERLY
EXHIBIT A
OAK #4838-4809-9222 v7
LINE OF THIRD STREET A DISTANCE OF 55 FEET TO THE POINT OF
COMMENCEMENT.
PARCEL FOUR:
COMMENCING AT A POINT ON THE NORTHERLY LINE OF THIRD STREET DISTANT
224.6 FEET EASTERLY FROM THE CORNER FORMED BY THE INTERSECTION OF
THE NORTHERLY LINE OF THIRD STREET WITH THE EASTERLY LINE OF "A"
STREET (SAID POINT ALSO BEING THE SOUTHWESTERLY CORNER OF LOT 2,
BLOCK 30, AS SHOWN ON THAT CERTAIN MAP ENTITLED, "PLAT OF THE
TOWNSITE OF THE TOWN OF SAN RAFAEL", FILED OCTOBER 14, 1873 IN THE
OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF MARIN), AND RUNNING
THENCE WESTERLY ALONG THE NORTHERLY LINE OF THIRD STREET A
DISTANCE OF 8 FEET TO THE SOUTHEASTERLY CORNER OF THE PARCEL
CONVEYED BY WALTER R. CASTRO, ET UX, TO ALA SARA WINTER, BY DEED
RECORDED SEPTEMBER 16, 1944 IN BOOK 469 OF OFFICIAL RECORDS, AT PAGE 52,
ALSO BEING THE SOUTHEASTERLY CORNER OF PARCEL 3 ABOVE, THENCE
NORTHERLY AT A RIGHT ANGLE RUNNING PARALLEL TO THE EASTERLY LINE OF
"A" STREET A DISTANCE OF 146.3 FEET ALONG THE EASTERLY LINE OF SAID
PARCEL, THENCE EASTERLY AT A RIGHT ANGLE RUNNING PARALLEL WITH THE
NORTHERLY LINE OF THIRD STREET, A DISTANCE OF 8 FEET TO THE WESTERLY
LINE OF SAID LOT 2 IN BLOCK 30, ALSO BEING THE SOUTHWESTERLY CORNER OF
PARCEL 1 ABOVE, THENCE SOUTHERLY AT A RIGHT ANGLE RUNNING PARALLEL
TO THE EASTERLY LINE OF "A" STREET A DISTANCE OF 146.3 FEET TO THE POINT
OF COMMENCEMENT.
PARCEL FIVE:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS PURPOSES AS
PROVIDED FOR IN THAT DEED EXECUTED BY ALA SARA WESS TO MATTHEW E.
HAZELTINE, ET UX, RECORDED APRIL 9, 1954 IN BOOK 860 OF OFFICIAL RECORDS,
AT PAGE 70, MARIN COUNTY RECORDS, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT A POINT ON THE NORTHERLY LINE OF THIRD STREET DISTANT
THEREON 75 FEET WESTERLY FROM THE SOUTHWESTERLY CORNER OF LOT 2, IN
BLOCK 30, AS SHOWN UPON THAT CERTAIN MAP ENTITLED, "PLAT OF THE
TOWNSITE OF THE CITY OF SAN RAFAEL", FILED FOR RECORD OCTOBER 14, 1873
IN RACK 2 OF MAPS AT PULL 4, MARIN COUNTY Form No. 1068-2 Commitment No.:
2103-5032124 ALTA Commitment Page Number: 5 First American Title RECORDS, SAID
POINT ALSO BEING THE SOUTHWESTERLY CORNER OF THAT CERTAIN PARCEL
CONVEYED TO ALA SARA WINTER BY THE DEED RECORDED SEPTEMBER 16, 1944
IN BOOK 469 OF OFFICIAL RECORDS, AT PAGE 52, MARIN COUNTY RECORDS;
THENCE NORTHERLY ALONG THE WESTERLY LINE OF SAID WINTER PARCEL
136.8 FEET; THENCE EASTERLY AT A RIGHT ANGLE 12 FEET TO A POINT ON THE
EASTERLY LINE OF THAT CERTAIN PARCEL CONVEYED TO HAZELTINE BY THE
DEED RECORDED APRIL 9, 1954 IN BOOK 860 OF OFFICIAL RECORDS, AT PAGE 70,
MARIN COUNTY RECORDS; THENCE SOUTHERLY ALONG THE EASTERLY LINE OF
SAID HAZELTINE PARCEL 136.8 FEET TO A POINT ON THE NORTHERLY LINE OF
EXHIBIT A
OAK #48384809-9222 v7
THIRD STREET, THENCE WESTERLY ALONG SAID NORTHERLY LINE 12 FEET TO
THE POINT OF BEGINNING.
APN: 011-263-04 (Affects: Parcel One) and 011-263-19 (Affects: Parcels Two, Three and Four)
1009 4th Street, San Rafael, CA 94901
Legal Description
The land referred to in this Report is situated in the County of Marin, City of San Rafael, State of
California, and is described as follows:
Beginning at a point in the Northerly line of Third Street at the intersection thereof with the
Easterly line of that certain parcel of land described in Deed from Michael Butler, a widower, to
Martha Jane Prior, recorded November 23, 1923 in Liber 30 of Official Records at Page 407;
running thence Northerly along said Easterly line, 81 feet to the Northeasterly corner thereof;
running thence Westerly along the Northerly line of said parcel ofland so described in Deed to
Prior, 3 feet to a point in the Easterly line of that certain parcel of land described in Deed from
M. Butler, a widower, to Martha Jane Prior, recorded January 23, 1922 in Liber 235 of Deeds at
Page 390; running thence Northerly along the Easterly line of said parcel of land described in
Deed to Prior, secondly above referred to, 65.86 feet to a point in the Northerly line of Lot 2 in
Block 30, as shown on the Map hereinafter referred to; running thence Easterly along said
Northerly line of Lot 2 in Block 30, 39.44 feet to the Northeasterly corner thereof; running
thence Southerly along the Easterly line of said Lot 2 in Block 30, 149 feet to a point in the
Northerly line of Third Street; running thence Westerly along said Northerly line of Third Street,
34.3 feet to the point of beginning. Being a portion of Lot 2 in Block 30, as shown upon that
certain Map entitled, "Plot of the Townsite of the Town of San Rafael", filed in the Office of the
County Recorder of the County of Marin, State of California, October 14, 1873 in Book 1 of
Maps, Pull 4.
APN: 011-263-18 and APN: 011-263-19
924-926 3 rd Street, San Rafael, CA 94901
Legal Description
The land referred to in this Report is situated in the County of Marin, City of San Rafael, State of
California, and is described as follows:
Beginning at a point in the Northerly line of Third Street at the intersection thereof with the
Easterly line of that certain parcel of land described in Deed from Michael Butler, a widower, to
Martha Jane Prior, recorded November 23, 1923 in Liber 30 of Official Records at Page 407;
running thence Northerly along said Easterly line, 81 feet to the Northeasterly corner thereof;
running thence Westerly along the Northerly line of said parcel of land so described in Deed to
Prior, 3 feet to a point in the Easterly line of that certain parcel ofland described in Deed from
M. Butler, a widower, to Martha Jane Prior, recorded January 23, 1922 in Liber 235 of Deeds at
Page 390; running thence Northerly along the Easterly line of said parcel of land described in
Deed to Prior, secondly above referred to, 65.86 feet to a point in the Northerly line of Lot 2 in
Block 30, as shown on the Map hereinafter referred to; running thence Easterly along said
Northerly line of Lot 2 in Block 30, 39.44 feet to the Northeasterly corner thereof; running
thence Southerly along the Easterly line of said Lot 2 in Block 30, 149 feet to a point in the
EXHIBIT A
OAK #4838-4809-9222 v7
Northerly line of Third Street; running thence Westerly along said Northerly line of Third Street,
34.3 feet to the point of beginning.
Being a portion of Lot 2 in Block 30, as shown upon that certain Map entitled, "Plot of the
Townsite of the Town of San Rafael", filed in the Office of the County Recorder of the County
of Marin, State of California, October 14, 1873 in Book 1 of Maps, Pull 4.
APN: 011-263-16
EXHIBIT A
OAK #4838-4809-9222 v7
< I PARCEL 1-A ( L:tnggi)
---
BEGINNING at a polnt on the Northerly line of 'I'hi.rd Str•efft, L~a.n Hafncl,
California, distant thereon ::es terly 52. 37 feet from :t ts int,ernc➔ct1on
with the westerly line of Lootens PJ.:,ce in Block JO., f\an Raf sol 'I'mrn-
site Mep, m,_gde
Pull 4, Mrir in
line westerly
mo1•e or less,
by H ..
County
231.,23
to the
Aust:i.n, and recorded October 111, 1873 on Hack 1,
Hecords, running thence a.long said Ttitrd Str•e:,H:it
feet, thence at right angles no1°therly 1_50 feet,
southerly line of an alley I thence at right anf,:les
easterly and along the souther•ly line of said alley 100.,0 feet, thence
e.t right angles southerly 10 .. 0 feet, thence ensterly nlonv ::Jnid
alley line 65 .. 0 feet to coPner of lot conveyed by Donald Sutherland
to Effie C .. Bu1,,tchaell, by deed dated March 11, 1881, and recorded ln
Libre "V" of Deeds at page 35l-i, Marin County Records, thence so1tther•ly
along the westerly line of said Bnrtchaell lot 40 .. 0 feet to the south-
west corne:t• of the said Burtchaell lot; thence easter,ly along the
southerly line of the said Burtchaell lot 57 .63 feet; thence ,':lonthedy
parallel to the ·westerly line of Lootens Place 103 .. 111 feet to the point
of beginning ..
(7)
PAHCE:L 1-A (LeGarn)
THAT portion of Lot No. 6, in Block No,. 30 of the 1roimsite of San
Ha.fael, in the City of San Hafe.e1 11 County of Martn, ,3tate of Galifor-
ni as per plat of the Townsite filed for record October lq, li373 in
the office of the County Recorder of the County of Marin, State
of California, described as follows to-wit:
BEGINNING at a point on the Westerq line of Lootens Placo dis tnnt 157
fest southerly from the point of intersection of d Westerly line
of Lootens Place with the southerly line of 1'1 011rth Street, before
widening, said point of beginning bei~g the point of ir,tersection of
said westerly line of Lootens Place with the Son ther7 y line of an
alley 20 feet in width; thence Westerly along said Southerly line of said
alley 110 feet; thence southerly at right angles hO f ·ot., thence
Easterly parallel with said alley 112 feet to said westerly line of
Lootens Place, thence Northerly along said
to the point of beginning.,
t mentioned line 40 feet
PARCEL 1-A ( Christensen)
BEGINNINCl at a point in the westerly line of Lootens Place distant 110 .. o
feet southerly along said line from the sonthN•ly line of a 20 .. 0 foot
la.ne leading from Lootens &ce Hesterly into Block 30, as sa:tcl streets
and block are shown on Map of San Rafael 'I'ownsi te, said point of begin-
ning being alao the sou the as t corner of that certain parcel of land
conveyed by Donald Sutherland to ,U,ffie C .. Burtchaell in Deed dated
Maroh 11., 1881 and recorded in Libre 11 V11 of Deeds at pa e 35li, Marin
County Records, and l'lmnine; thence southerly along the westerl;y line o:f
Lootens Place 103 .. 14 feet to the intersection of a aid la at mentioned
line with the northerly line of Third Street, as shown on the here:'l.n
mentirined .map, thence westerly along said line of Third Street, 52 .. 37
feet, thence northerly and parallel to the westerly line of Lootens
Plsoe 103.lll feet, more or less, to the Southerl,y line of the property
herein mentioned as being described in Li bra 11 V11 of Deeds at page 35)~,
Marin County Hecords, thence easterly along the sonthe1:1ly 1:1.ne of said
parcel so described 52 .. 37 feet to the uoint of beginning. BEING
a portion of that certain property in Block 30, descr~ bed in Deed
dated September 18 11 1926 from C. A .. Chaquette and Ernest:l .. ne M., Chaquetto,
his wife, to Anton Chris tens en JI r l:!:Co1•ded in the office of the County
Recorder of the County of Marin, State of California, on ::ieptember 25 JI
1926 in Volume 105, Official Records at page 129.
PARCEL 1-A (Alley)
BEGINNING at; the point of intersection of the westerly line of Lootens
with the southerly boundary line of the lands described :ln Deed
from Donald Sutherland to Marie E. Sweetser :recorded in L:1.ber
of Deeds a.'t par;e 21 7; runn:tnp, thence westerly along the northerly
line of an Alleyway refe-rred to :tn said Deed and its cont1nuation
westerly to the westerly line of Lot 6, ock 3c1 11 as shown upon
Plat of the Townsite of San Hafael; running thence s011therly a1onp;
the last named line to a point in the northerly 11.ne of the lands
desoribed in Deed tow. A. Pawning recorded in Liher 98 of Deeds at
page 194, running thence easterly along the northerly line of said
laruls 00nvey_ed to Pown1nr:, a dis ta.nee of 100 feet; to its nor•theasterly
corner; running thence southerly along the easterly lino of said lands
conveyed to Povming 10 feet, more or less, to the northwesterly corner
of the lands described in Deed to Anton Christensen recorded 1n Liber
105 of Official nee ords at par·e 129; runninr; thence easterly along the
northerly line of said lands conveJ.e d to Christensen, 65 feet, mor,:l'Or
less, to the northwesterly corner of tf:<11 lands described in Deed to
Geo LeCam, et , recorded in Liber 10 of 0fficie.1 Records at page
69, running thence easterly along the northerly line of said lands
conveyed to LeOam, et al, a distance of 110.,00 feet to the westerly
line of Lootens Place, running thence northerly a.long the westerly line
of Lootens Place., a distance of 20 feet, more or lea to the point
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SECOND ST.
NOTE-Assessor's Block Numbers Shown in Ellipses.
i-..:
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11-26
T.21i..---
T. IN.
I
Townsite of San Rafael, Rack f Pull 4. Assessor's Parcel Numbers Shown in Circles.
CITY OF SAN RAFAEL
Assessor's Map Bk. II -Pg. 26
County of Marin, Calif.
EXHIBITB
SCHEDULE OF PERFORMANCE
Preliminary Stage
(6 months)
1. Concurrent with Developer deposits Preliminary Stage Deposit with City
execution of
Agreement
2. Promptly Developer retains its parking consultant
following
Effective Date
3. Within 120 days Developer submits Parking Plan to City for review
of the Effective
Date
4. Prior to expiration City and Developer discuss differences in Parking Plan analysis and of Preliminary endeavor to reach consensus Stage
5. Promptly Developer and City commence negotiation and drafting of Term
following Sheet
Effective Date
6. Prior to expiration Developer and City reach agreement on principal business terms of of Preliminary a proposed DDA as evidenced by a non-binding Term Sheet. Stage
7. Prior to expiration Developer and City memorialize successful completion of all of Preliminary Preliminary Stage tasks by executing a Preliminary Stage Feasibility Stage Confirmation or Agreement terminates as provided in Section 1.2.
DDAStage
(15 months)
*DDA Stage applicable only if Developer and City have memorialized successful
completion of all Preliminary Stage tasks.
EXHIBITB
OAK #4838-4809-9222 v7
8. Upon execution Developer deposits DDA Stage Deposit with City
of Preliminary
Stage Feasibility
Confirmation
9. Within 30 days Developer and City prepare a CEQA project description
following
commencement
ofDDA Stage
10. Prior to expiration City's CEQA consultant prepares the CEQA document
ofDDA Stage
11. Prior to expiration Developer and City negotiate and draft a proposed DDA
ofDDA Stage
and, in any event,
prior to City
Council's
consideration of a
DDA
EXIIlBIT B
OAK #4838-4809-9222 v7
AMENDMENT NO.I TO AGREEMENT TO NEGOTIATE EXCLUSIVELY
Thi s Amend men t No. I ("A mendm ent") to that ce rta in Agree ment to Negotiate
Exc lus ive ly ("ENA ") by and betwee n t he C it y of Sa n Rafae l, a municipa l corpo ra Li o n ("C ity"),
and Go ld ston e Mana ge ment, In c. ("Developer"), is effecti ve o n th e Amendment Date identified
on th e s ignature page. C it y and Deve lope r may be re ferred to individuall y here in as a "Party".
and co ll ec ti ve ly as th e "Pa 1ti es.''
RECITALS
A. On November 18th , 2 01 9, C ity adopted a reso luti on approv in g and auth or iz in g the
C it y Manage r to exec ute th e ENA to gove rn t he ph ases of nego ti ati o ns fo r th e Parties to
neg otiate a nd pr esent to the C ity Co un c il for a ppl'ova l a propose d Dis pos iti on and Deve lop ment
Agree ment ("DOA") fo r Deve lope r to acq ui re a C ity -owned publi c parkin g ga rage a nd deve lop a
mi x ed-u se residential/retail de ve lopment project at th e sot1 t heast int ersection of Third Street and
Loo ten s Plaza in th e City of San Rafae l as more parti cul arl y describ ed th er e in. Pursu ant to th e
auth ori zat ion co nferr ed by th e Novemb e r I 8111 20 19 reso lu t ion, th e City executed the ENA with
an effective date of Dece mb er 7°\ 20 19.
B. U nd er t he term s of the ENA, t he Parti es outlin ed a se ri es of ph ase d nego tiation s
towards memoriali z in g th e te rm s of a ODA , w hi ch req uire t hat the Parti es mak e a det er min at io n
as to feasibi lity of th e pro posed Proj ect, a nd if th e Proj ect is mutu all y determ in ed to be feas ib le,
exec ute a Pre limina ry Stage Feas ibility Confil'mation by no la ter th an s ix month s fo ll ow in g the
Effectiv e Date, o r Jun e 7th , 2020.
C. In ea rl y 2020, fo ll ow in g a n initial o utbre ak in Wuhan , Chin a in December o f
20 19, a pand emic out brea k of th e SARS-COV-2 vi ru s spread g loba ll y, reac hin g a ll 50 of the
Unit ed States (th e "COVI D-1 9 Ou tbr ea k"). In Marc h of 2020, to prevent sprea d of t he vi ral
o utb reak, the Marin Co unty Hea lth and Human Se rvices Department issued a s he lter in pl ace
order, w hi c h has been extend ed t hrou gh Ma y 3 1, 2020.
D. In li ght of th e o ngo in g public hea lth cr is is und er th e CO YID-19 Outb reak, th e
Parties w ish to extend th e Pre limin ary Stage of the nego ti at ion peri od co nt emplated und er the
ENA for a period of s ix months. Add iti ona ll y, the Pa rti es w is h to a me nd the I ist of it ems
identifi ed under th e "Term Sheet" und er Sect io n 2.1 of the ENA to require that Develop er submit
a pro jorma financial feas ib ility analys is for the Proj ec t as o ne of th e pe rformanc e mil es tones
required pri o r to determination of Projec t feasib ility a nd execution o f a Pre limin ary Stage
Feasi bility Co nfirm ati on.
NOW, THEREFORE, the C ity and Deve lope r, fo r t he mutual co ns ideration desc ribed
here in , agree as fo ll ows:
AGREEMENTS
I . INCORPORAT ION BY REFERENCE. Unl ess oth erwise specified , a ll s ub sequ ent
references to th e ENA a re deem ed to mean the or ig in al ENA as modi fi ed by th is A me ndm ent.
Ame ndm ent #1 to ENA
OAK 114833-8029 •2795 v3
Page 1 of 3
T hi s Amendm e nt in corporates the ENA by refe rence , except and onl y to the ex tent t hat any
te rm s o r cond itio ns of th e EN A a re s pec ifica ll y mod ifi ed by thi s Ame ndm e nt. A ll terms a nd
co ndi tio ns in the ENA that are not s pecifica ll y modi fi ed by th is Amendment rema in in f1.1II force
a nd e ffect.
2. AMENDMENT OF SECTION 1.2. T he first two sente nces of Sect ion 1.2 of th e ENA,
"Negot iat io n Pe riod D ur at io n," are here by amend ed and restated to rea d as fo ll ows [NOT E: no ne
of the re ma in in g se nte nces of Sect ion I .2 is mod ifi ed by thi s Am e ndm ent):
"1.2 Negot ia tion Peri od Dmation .
(a) T he negotiations s ha ll be conducted in two s tages, the comb in ed durat ion of
which shall not exceed twenty-se ve n (27) month s, pl us ex tens ion s, if any, as pro v ided in
sub secti on (b) be low. ("Negotiation Period"). T he "Preliminary Stage" of th e Negotiati o n
Period s hall co mm ence o n the Effec tiv e Date and ex pire twe lve (1 2) month s thereafter,
subject to potenti al ex tens ion as provided in sub section (b) below, or on th e date th e Par ti es
exec ute a Prelimin a ry Sta ge Peasi bili ty Confirmatio n (defi ned be low) whi cheve r is ea rlier."
3 . AMENDMENT OF SEC TION 2. Section 2 .2 of th e ENA , "D OA Stage Tasks," is hereby
re n1.1mb ered as Secti on 2.3 . A new Section 2.2, "Project Pro Forma," is hereby ad ded lo Sect ion
2, to read as fo ll ows:
"2.2 Project Pro Forma. ln additi on to the other Prelimin a ry Stage tasks de sc ribed in
thi s Ag ree men t and Sc hed ul e of Performance, prio r to ex piration of th e Pre limi nary Stage of
the Negot iat io n Peri od, Deve lope r sha ll submit to t he C ity fo r review a Project Pro Fo rma ,
demon strat in g t he financia l fea s ibility of th e Proj ec t under id entifi ed ass umption s reg arding
interest rates, th e av a il abi li ty of Proj ect lendin g ca pit al and co nstru ction costs, and in cludin g
bas ic in fo rm at ion rega rdin g Pr oj ect reve nu es and cos ts, so urces and uses of fu nd s, cas h fl ow
und er ba s ic accrna l acco untin g, a nd any other in fo rma t ion reaso nabl y req uested by C ity."
4 . EN TIRE AGREEMENT. T he ENA, as mod i fied by th is Am endm ent , cons t itutes th e
entire integra ted unde rstandin g betwee n the Parti es co ncern in g th e Proj ect. Thi s Amendment,
toget he r w ith t he ENA , sup ersedes a ll pr io r negotiations , agreements and und erstand in gs
regard in g the Site and propo sed Project, whethe r wr itte,1 or oral. T he docum e nt s incorporated by
reference into th is Am endm e nt are co mpl eme nt ary; w hat is call ed fo r in one is bindin g as if
ca ll ed for in a ll , except and o nl y to the extent ot herw ise s pec ified . In the eve nt of any co nfli c t
between the provi sion s of thi s Amendment and th e ENA, the prov is ions of thi s Ame ndm e nt s hal l
contro l.
5. S IGNATURES. The in div idu a ls execu tin g thi s Amendm en t represe nt and wa rrant that
th ey have t he ri ght , power, lega l ca pac it y, and au th or ity to enter int o and to exec ut e thi s
Amendm e nt on beha lf of the respec ti ve lega l en titi es of Deve lope r and C ity. Thi s Amendment
shall inu re to the be nefit of and be bindin g upon th e parti es he ret o a nd thei r respe ctive successo rs
and auth ori ze d ass igns.
A mendment #1 t o ENA
OAK 4i4833-8029-2795 v3
Page 2 of 3
IN WITNESS WHEREOF, the Parti es have executed this Ame ndm ent to be effecti ve on
the Amendment Date se t fo rth below.
CITY:
C ITY OF SAN RAFAEL, a Cali fo rni a
muni c ip a l co rporation
ATTEST :
fbr Lind say Lara, C ity C le rk
Date: __ ,T tu? __ e_..._9 _ _,, 2020
("Ame ndm e nt Date")
APPROVED AS TO FORM:
tp"2-Robert Epste in , C ity
A m en dment #1 to ENA
OAK #48 33·8029-2795 v3
DEVELOPER:
GOLDSTONE MANAG EMENT. INC., a
Ca li fornia corporation
By E~&1~
Dated: f.,(4 , 2020
Page 3 of 3
1
RESOLUTION NO. 14802
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL APPROVING AN
AMENDMENT TO EXTEND THE AGREEMENT TO NEGOTIATE EXCLUSIVELY WITH
GOLDSTONE MANAGEMENT INC. REGARDING REDEVELOPMENT OF 1009 AND 1001
FOURTH STREET, 924-926 THIRD STREET, AND THE THIRD STREET AND LOOTENS
PLACE PARKING GARAGE
WHEREAS, the City of San Rafael owns the real property and parking garage located at
Third Street and Lootens Place ("City Parcel"); and
WHEREAS, the City adopted a goal to “provide a vibrant Downtown” in “our Vision of
Downtown” in 1993, which was later incorporated into the goals of the General Plan 2020 as
Goal 6. General Plan Goal 6 includes the following implementation policies:
• NH 16 - to substantially expand Downtown’s economic success and increase
opportunities for retail, office and residential development;
• NH 22 - to create a popular and attractive residential environment that contributes to
the activity and sense of community in Downtown; and
• NH 34 - to encourage activities that will promote the Fourth Street Retail Core as
being “Alive after Five”; and
WHEREAS, one of the City Council goals is to provide neighborhood and economic
vitality by supporting the development of key Downtown sites, and the City Council’s Economic
Development Committee has adopted "support development of key sites such as 1001-1009
Fourth Street" as one of its eight priorities; and
WHEREAS, Goldstone Management, Inc. ("Developer") has proposed redeveloping the
City Parcel and adjoining properties that Developer owns at 1009 and 1001 Fourth Street and
924-926 Third Street, into a mixed-use residential/retail development, including a market hall-
style food emporium and a fully automated parking garage ("Project"); and
WHEREAS, Developer entered into an exclusive negotiating agreement (“ENA”) with the
City dated December 7, 2019 to acquire the City Parcel, and in combination with the
Developer’s adjacent parcels that have already been assembled, to create a significant mixed-
use development, provide much needed housing, entertainment, and food services in the form
of a Market Hall, create a strong economic driver that will benefit Downtown businesses, and re-
establish the focal point of the Downtown area; and
WHEREAS, due to the COVID-19 outbreak, Developer has requested a six-month
extension to the Preliminary Stage of the ENA and the staff report accompanying this
Resolution provides additional information about the rationale for the extension; and
WHEREAS, staff engaged the law firm of Burke, Williams & Sorensen, LLP to evaluate
the extension request and Watry Design Inc. to review a preliminary parking plan, and their
preliminary analysis indicates that the submitted documentation is evidence of progress under
the Preliminary Stage for the City to consider further negotiations regarding the potential
Project; therefore staff recommends that the City Council approve the requested amendment to
the ENA; and
2
WHEREAS, funds have been appropriated in the Economic Development Department
budget for the current Burke, Williams & Sorensen, LLP, Keyser Marston Associates, Inc., and
Watry Design, Inc. contracts for consulting services during the extended term of the ENA; and
WHEREAS, the City Council intends and understands that amending the ENA is not
committing the City to grant any land use approvals for the Project or to approve any further
agreement with the Developer; and
NOW THEREFORE BE IT RESOLVED by the City Council of the City of San Rafael as
follows:
1. The City Council hereby finds and determines that the above recitals are true,
correct and incorporated herein.
2. The City Council hereby approves and authorizes the City Manager to execute
on behalf of the City an amendment to the ENA in substantially the form submitted to the City
Council in connection with the consideration of this Resolution, subject to such minor changes
as the City Manager and City Attorney may approve, provided, however, that nothing in this
Resolution or the amendment of the ENA shall be deemed to commit the City to approve any
land use approvals for the Project or to approve any further agreement with the Developer.
3. The City Council authorizes and directs the City Manager and his designees to
take such steps as are reasonable and necessary to performance of the City's obligations under
the amendment to the ENA and to carry out the terms and conditions of the ENA.
4. This Resolution shall take immediate effect upon adoption.
I, LINDSAY LARA, Clerk of the City of San Rafael, herby certify that the foregoing
resolution was duly and regularly introduced and adopted at a regular meeting of the City
Council of the City of San Rafael held on the 1st day of June 2020, by the following vote:
AYES: COUNCILMEMBERS: Bushey, Colin, Gamblin, McCullough & Mayor Phillips
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
LINDSAY LARA, City Clerk
Gary O. Phillips, Mayor • Kate Colin, Vice Mayor • Maribeth Bushey, Councilmember • John Gamblin, Councilmember • Andrew Cuyugan McCullough, Councilmember
MEMORANDUM – GOLDSTONE ENA
ADMINISTRATIVE EXTENSION
To: Jim Schutz, City Manager
From: Danielle O’Leary, Director of Economic Development and Innovation
Simon Vuong, Economic Development Coordinator
Date: Wednesday , December 2, 2010
Subject: Administrative Extension of Agreement to Negotiate Exclusively (ENA) for the Goldstone Project
Reference: Agreement to Negotiate Exclusively (ENA) Amendment No.1 to ENA
Background:
On December 7, 2019, an Agreement to Negotiate Exclusively (ENA) was entered between the City and the Goldstone Team (Developer) to discuss and negotiate in good faith the specifics of a market-hall style mixed-use residential and retail project with automated parking in exchange for a City parking garage. Since then, City staff, including staff from Economic Development, Community Development, Public Works, Parking Services, as well as city consultants, have been hard at work to deliberate some key items of the project, chiefly the design and access of the automated parking system and how that relates to the proposed shared parking. The pandemic that started earlier this year has delayed the timeframe for negotiations, and an extension was approved (Amendment No.1), moving the expiration date of the preliminary stage six (6) months, from June 6, 2020 to December 7, 2020.
Progress and Status: At this point in time, we have been meeting in a smaller Parking Subgroup to refine the critical details of how the parking will function, as the feasibility of the parking will be essential to making the project a reality. There are some questions, specifically regarding building height and parking ratio, that still need to be clarified as the City continues to move forward in reviewing and approving the Downtown Precise Plan. Because of this, the request from the Developer for an appraisal has not yet been completed as the development parameters are not set. Since the Downtown Precise Plan has not been approved, staff and city consultants believe it would be prudent to wait until the Downtown Precise Plan has been approved and key site parameters are solidified, including building height, density, and parking ratio, before moving much further along with the preliminary stage of the ENA. The City is also still waiting for a more
CITY OF SAN RAFAEL I 1400 FIFTH AVENUE, SAN RAFAEL, CALIFORNIA 94901 I CITYOFSANRAFAEL.ORG
Gary O. Phillips, Mayor • Kate Colin , Vice Mayor • Maribeth Bushey, Councilmember • John Gamblin, Councilmember • Andrew Cuyugan McCullough, Councilmember
comprehensive parking plan and are working within the Parking Subgroup to outline a more definitive submittal schedule. However, the Developer is insisting on an appraisal before the submittal of a parking plan, even a basic one using the underlying zoning (understanding that it may change), to be paid by the Developer and not to exceed $9,000. A scope of work for the appraisal was previously obtained for approximately $22,000, and we are in the midst of renegotiating another scope of work for a lower fee.
Request: For the above reasons, the prolonged negotiations with the Developer have made adhering to the new December 7, 2020 deadline difficult to meet, and staff believes it is necessary for an Administrative Extension to be granted to continue the negotiations. The City Manager may exercise an Administrative Extension of the ENA totaling no more than ninety (90) days if he determines that both parties have made substantial progress toward meeting the performance milestones identified in the ENA. City staff is requesting the City Manager extend the ENA, which is set to expire on December 7, 2020, an additional ninety (90) days to March 6, 2021. Additional time is warranted to further the conversations that the Parking Subgroup have undertaken and conduct an appraisal, and we are confident extra time will yield more fruitful conversations. It is likely that staff will return to City Council to extend the ENA a second time via an Amendment No. 2, prior to the expiration of this Administrative Extension, due to the uncertain timeline of the adoption of the Downtown Precise Plan. If the City Manager approves of the Administrative Extension, please sign and date below and return to the Economic Development Department. If there are any questions regarding this extension of agreement, please contact Danielle O’Leary x3460 or Simon Vuong at x3134. Thank you. Approved on Month, Date, Year JIM SCHUTZ City Manager
Enclosed: 1. Agreement to Negotiate Exclusively (ENA), Executed December 7, 2019 2. Amendment No.1 to ENA, Executed June 6, 2020
*Return to Economic Development*
When Completed
December 7, 2020
CITY OF SAN RAFAEL I 1400 FIFTH AVENUE, SAN RAFAEL, CALIFORNIA 94901 I CITYOFSANRAFAEL.ORG