ATTACHMENT 1
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AMENDMENT No. 1 TO EXCLUSIVE NEGOTIATING AGREEMENT
(City of Barstow and Lewis Land Developers,, LLC)
This Amendment No. 1 (“Amendment”) to the Exclusive Negotiating Agreement (“Agreement”) is made on February 3, 2025 and amends that certain Exclusive Negotiating Agreement, dated July 17, 2023, by and between the City of Barstow, a municipal corporation, (“City”) and Lewis Land Developers, LLC, (by assignment from Lewis Acquisition Company, LLC) (“Developer”).
RECITALS
A. On August 1, 2023, Lewis Acquisition Company, LLC assigned its rights in the Agreement to Lewis Land Developers, LLC, a permitted assignee under Section 11 of the Agreement.
B. City and Developer desire to amend Sections 8 and 9 of the Agreement.
C. Unless otherwise defined below, all capitalized terms in this Amendment shall have the meaning given those terms in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions hereinafter set forth, and other good and valuable consideration the receipt of which is hereby acknowledged, the City and Developer hereby agree to amend and supplement the Agreement as follows:
1. Section 8 is amended by adding the following Section 8.1 below the existing Section 8:
Section 8.1 - Developer Payment to City of City Fees for BLM Acquisition. Developer shall, at Developer's expense, and upon thirty (30) calendar days prior written notice from the City, provide the City with an initial deposit of fifteen thousand dollars ($15,000) to be held by the City in a segregated deposit account (the “BLM Account”) for use by the City to pay (i) all costs required by the BLM to process the City’s application to acquire the Property from the BLM, and (ii) the actual and reasonable third party out-of-pocket costs for the work of third-party consultants approved by Developer and retained by City in connection with the City’s acquisition of the Property from the BLM (the “City Consultants”). These costs include, but are not limited to, fees for an economic consultant, legal costs, appraisal service fees, environmental work, and/or any other costs related to the BLM land acquisition. The Developer shall increase the amount of funds in the BLM Account from time to time, within fourteen (14) calendar days of City’s written request, so that there are always sufficient funds in the BLM Account to make all required payments of costs pursuant to the aforementioned sections (i) and (ii). For each such City Consultant, City shall provide Developer with the name of the Consultant, proposed scope of work and proposed budget for Developer’s reasonable approval or disapproval; in the event Developer disapproves and City and Developer cannot reasonably agree on the modifications necessary for the parties to mutually agree on such City Consultant, then the City may elect to terminate the ENA, as a default under Section 6 of the Agreement.
In the event of such termination, any unused funds remaining in BLM account may be refunded less any expenses incurred in regards to acquiring said City Consultant. For each City Consultant approved by Developer, the Developer shall increase the amount of funds 2 of 3
in the BLMAccount from time to time, within fourteen (14) calendar days of City’s written request, so that there are always sufficient funds in the BLM Account to make all required payments to each City Consultant in accordance with the City-approved budget for that Consultant. Unused funds in the BLM Account after the City has acquired the Property, if any, shall be refunded to Developer unless otherwise provided in the DDA.
All funds expended for City Consultants are nonrefundable regardless of whether the project is approved. Any unexpended funds for City Consultants at the conclusion of the entitlement decision may be returned to the Developer less any expenses incurred in regards to acquiring said City Consultant.
2. Section 9 is deleted in its entirety and the following inserted in place thereof:
Section 9. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California.
3. Counterparts/Electronic Signatures. This Amendment may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which together shall constitute one document. A copy of this Amendment executed and delivered by facsimile, electronic mail in “.pdf” format, or any electronic signature complying with the California Uniform Electronic Transactions Act (Cal. Civ. Code § 1633.1 et seq.) and the U.S. federal ESIGN Act of 2000 (e.g., www.docusign.com) will be deemed to have the same legal effect as delivery of an original signed copy of this Amendment and shall be admissible into evidence as an original hereof to prove the contents hereof. [Signatures Follow On Next Page]
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TO EFFECTUATE THIS AMENDMENT, the parties have caused their duly authorized representatives to execute this Amendment on the dates set forth below. “City”
City of Barstow
By: ______________________________
Chris Heldreth, Acting City Manager
Date: _______________
Attest:
By: ______________________________
Andrea Flores, City Clerk
Date: _______________
Approved as to form:
By: ______________________________
Matthew T. Summers, City Attorney
Date: _______________
“Developer”
Lewis Land Developers, LLC
By: Lewis Management Corp., Its Manager
By:___________________________
Name: John M. Goodman
Its” Sr. EVP/CEO
Date: __________________
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