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ED Exclusive Negotiating Agreement; Mixed Use Residential-Retail Development; Amendment 2DocuSign Envelope ID: 809146A7-99BA-46CE-8294-D8BD5EC29DBF AMENDMENT NO.2 TO AGREEMENT TO NEGOTIATE EXCLUSIVELY This Amendment No. 2 ("Amendment") to that certain "Agreement to Negotiate Exclusively" by and between the City of San Rafael, a municipal corporation ("City"), and Goldstone Management, Inc. ("Developer"), is effective on the Amendment Date identified on the signature page. City and Developer may be referred to individually herein as a "Party", and collectively as the "Parties". RECITALS A. On November 18`h, 2019, City adopted a resolution approving and authorizing the City Manager to execute an Agreement to Negotiate Exclusively to govern the phases of negotiations for the Parties to negotiate and present to the City Council for approval a proposed Disposition and Development Agreement ("DDA") for Developer to acquire a City -owned public parking garage and develop a mixed-use residential/retail development project at the southeast intersection of Third Street and Lootens Plaza in the City of San Rafael as more particularly described therein. Pursuant to the authorization conferred by the November 18`h 2019 resolution, the City executed the Agreement to Negotiate Exclusively with an effective date of December 7`h, 2019 (the "Original Agreement"). The Original Agreement has been amended by an Amendment No. I to Agreement to Negotiate Exclusively dated June 9, 2020. The Original Agreement as amended by Amendment No. 1 is referred to herein as the "ENA". B. Under the terms of the ENA, the Parties outlined a series of phased negotiations towards memorializing the terms of a DDA, which required that the Parties make a determination as to feasibility of the proposed Project, and if the Project is mutually determined to be feasible, execute a Preliminary Stage Feasibility Confirmation no later than twelve months following the Effective Date, or December 7`h, 2020, subject to further administrative extension as provided in the ENA. C. In December 2020, the Developer requested, and the City Manager authorized, a one-time (90) day administrative extension, for the City to conduct an independent -appraisal of the City Parcel to facilitate the negotiations and assist Developer in the preparation of its financial pro -forma analysis and parking feasibility study. D. In mid-January 2021, City received the preliminary results of the independent appraisal and shared those findings with Developer. City and Developer now desire to: (i) further extend the Preliminary Stage by an additional three months, (ii) authorize additional discretionary administrative extensions not to exceed 90 days in total, (iii) increase the budgeted amount of Preliminary Stage Costs, and (iv) augment Developer's Preliminary Stage Deposit, all as provided herein, so the Parties can continue the negotiations and Developer can further develop its financial pro forma and prepare and submit additional information regarding the proposed Automated Multi -Use Garage. NOW, THEREFORE, the City and Developer, for the mutual consideration described herein, agree as follows: AGREEMENTS: Amendment #2 to ENA Page 1 of 4 OAK #4832-7248-2782 v3 DocuSign Envelope ID: 809146A7-99BA-46CE-8294-D8BD5EC29DBF 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 OAK 114832-7248-2782 v3 DocuSign Envelope ID: 809146A7-99BA-46CE-8294-D8BD5EC29DBF 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. Amendment #2 to ENA Page 3 of 4 OAK #4832.7248.2782 v3 DocuSign Envelope ID: 809146A7-99BA-46CE-8294-DBBD5EC29DBF 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 OAK #4832.7248 2782 v3 CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Economic Development Project Manager: Danielle O'Leary Extension: x3460 or Cell Phone: (707) 495-3393 Contractor Name: Paul Goldstone Contractor's Contact: Peter Spoerl Contact's Email: Peter Spoerl <peter@rflawllp.com> ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor N/A 4/20/2021 b. Email contract (in Word) and attachments to City Attorney c/o Laraine.Gittens@cityofsanrafael.org 2 City Attorney a. Review, revise, and comment on draft agreement ❑ and return to Project Manager ❑ (N/A) b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor 3 Department Director Approval of final agreement form to send to 3/15/2021 contractor _DRO 4 Project Manager Forward three (3) originals of final agreement to 4/14/2021 ❑X contractor for their signature 5 Project Manager When necessary, contractor -signed agreement ❑ N/A agendized for City Council approval * *City Council approval required for Professional Services Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 3/15/2021 Date of City Council approval PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 6 Project Manager Forward signed original agreements to City Attorney with printed copy of this routing form / 7 City Attorney Review and approve hard copy of signed agreement 8 City Attorney Review and approve insurance in PINS, and bonds L,2 ! / ( r #(for VA Public Works Contracts) 9 City Manager/ Mayor Agreement executed by City Council authorized official 10 City Clerk Attest signatures, retains original agreement and AV forwards copies to Project Manager