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1 FIRST AMENDMENT TO AGREEMENT OF PURCHASE
AND SALE AND JOINT ESCROW INSTRUCTIONS
AGREEMENT NO. C2020-174
1051 – 1199 Pearl St.
APN 003-166-008 & 003-166-011
Napa, California
This First Amendment to Agreement of Purchase and Sale and Joint Escrow Instructions (“Amendment”) is made as of _____________, 2022 (“Date of First Amendment”), by and between the City of Napa, a California charter city (“Seller”) and Coombs Street LLC, a California Limited Liability Company (“Buyer”), with reference to the following facts:
A. Seller and Buyer’s predecessor, Napa Parkway Plaza, LLC, are parties to that certain Agreement of Purchase and Sale and Joint Escrow Instructions, Agreement No. C2020- 174, dated as of July 31, 2020, referred to herein as the “Purchase and Sale Agreement.” Generally, the Purchase and Sale Agreement defines the terms by which the Seller agreed to sell to the Buyer certain real property improved with a surface parking lot located in Napa, California, referred to as the “Property.”
B. Concurrently herewith, Seller, Buyer and Buyer’s predecessor have entered into an Assignment of Agreement No. C2020-174 dated ________________, 2022 (“Assignment”), assigning the rights and obligations of the Purchase and Sale Agreement from Napa Parkway Plaza LLC to Coombs Street, LLC
C. Following its good faith efforts to proceed with the development of the First Street Napa Phase II Project (as defined in the Purchase and Sale Agreement), which was significantly impacted and impaired by nearly two years of economic uncertainties caused by the COVID-19 global pandemic, Napa Parkway Plaza LLC has conveyed all interest in the Kohl’s Parcel (as defined in the Purchase and Sale Agreement) to Coombs Street LLC for the purposes of completing First Street Napa Phase II Project.
D. Coombs Street LLC, since acquiring the Kohl’s Parcel, has made substantial progress towards the negotiation and drafting of a Development Agreement in substance and form, including but not limited to developing substantially complete drafts of the Development Agreement, a Planned Development Overlay, a project description, housing alternative equivalent, parking proposal and design guidelines.
E. Buyer and Seller now desire to amend the Purchase and Sale Agreement as set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Amendment, the receipt and adequacy of which are hereby acknowledged, Seller and Buyer agree as follows:
1. Definitions. Capitalized terms used in this Amendment but not defined herein shall have meaning given to such terms in the Purchase and Sale Agreement.
ATTACHMENT 3
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2 2. Amendment of Preamble. The preamble of the Purchase and Sale Agreement (Close of Escrow) is hereby amended and restated in its entirety as follows:
This Agreement of Purchase and Sale and Joint Escrow Instructions (“Agreement”), dated for reference purposes only as of _______________, 2020, is entered into by and between Coombs Street LLC NAPA PARKWAY PLAZA, LLC, a California limited liability company (“ Buyer”), and the CITY OF NAPA, a California charter city (“ Seller”). Buyer and Seller are sometimes referred to individually herein as a “Party” and collectively as the “Parties.”
3. Amendment of Subsection 3(a). Subsection 3(a) of the Purchase and Sale Agreement (Payment of Purchase Price) is hereby amended and restated in its entirety as follows:
(a) Deposit. Prior to the end of the Contingency Period (as defined in Section 8(a)(ii), below), Buyer shall deposit with Placer Title Company of Napa, 5 Financial Plaza, #205, Napa, CA 94558 (“Escrow Holder”), Fifty Thousand and 00/100 Dollars ($50,000.00) in cash or other immediately available funds (“Deposit”). The Deposit shall be invested by Escrow Holder with a financial institution acceptable to Buyer in a federally -insured interest -bearing demand account and the Deposit and all interest accrued thereon shall be credited to the Purchase Price upon the Close of Escrow (as defined in Section 4(b), below). The Deposit shall be released to Seller, and except for a default by Seller the Deposit shall be come nonrefundable to Buyer on the later of (i) the date the proposed Development Agreement (defined in Section 8(a)(vii)) becomes Final (as defined below) or (ii) 30 days following the date Tenant voluntarily relocates from the Kohl’s Parcel (as described in Section 8(b)(ix)) (the “Deposit Release Date”). As used herein the term “ Final” means the date on which (1) all applicable appeal periods for the filing of any administrative appeal or litigation challenging the approval or effectiveness of the Develo pment Agreement and the City’s related CEQA determinations shall have expired and no such appeal shall have been filed; (2) in the event of any administrative appeal or litigation challenge challenging one or more of such approvals, that the administrative appeal or litigation challenge is settled or there is a final determination or judgment upholding the approval(s), and the administrative appeal or litigation challenge is no longer subject to appeal; and (3) in the event of a timely referendum petition certified by the elections official as compliant with the Elections Code, a majority of voters voting on the Development Agreement vote in favor of it and the election results are certified in accordance with the Elections Code (collectively, (1) (2) and (3) are referred to as “Appeals”).
If the proposed Development Agreement does not become Final by December 31, 20232022, as such date may be extended as provided below (the “Outside Deposit Release Date ”), this Agreement shall terminate, the Deposit, less costs of cancelling Escrow, shall be refunded to Buyer and, except as otherwise provided in this Agreement, Seller and Buyer will have no further obligations or rights to one another under this Agreemen t. The City Manager may grant one or more extensions of the initial outside date for Deposit Release totaling no more than 24 12 months (i.e. to no later than December 31, 2024), provided (i) Buyer requests ATTACHMENT 3
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3 such extension in writing prior to expiration of the then Outside Deposit Release Date, and (ii) the City Manager determines in his or her sole absolute discretion that the Buyer is making diligent and good faith efforts to satisfy the conditions of the Deposit Release.
4. Amendment of Subsection 8(a)(vii). Subsection 8(a)(vii) of the Purchase and Sale Agreement (Conditions to Close of Escrow) is hereby amended and restated in its entirety as follows:
(vii) Development Agreement. The Parties shall have approved and executed a Development Agreement pursuant to Government Code section 65865 et seq., with respect to the Property and Kohl’s Parcel and the First Street Napa Phase II Project, or portion thereof, in form and substance mutually acceptable to the Parties, each in its sole and absolute discretion, (“ Development Agreement”) by no later than the date that is thirty-sixtwelve months (3612) months after the Effective Date (“DA Deadline”), provided that the City Manager may grant one or more extensions extending the DA Deadline to no later than December 31, 202324 months after the Effective Date (the “Outside DA Deadline”) if the City Manager determines in his or her sole absolute discretion that the Parties representatives have made substantial progress towards negotiation and drafting of a Development Agreement in substance and form mutually acceptable to the Parties. The Development Agreement shall address matters including, but not limited to, the following: (a) use, intensity and density, maximum floor area, and maximum height of development on the Property and Kohl’s Parcel, including requirements for timing of construction; (b) public benefits, including (i) the Parking Concept, and (ii) the number of units of for-rent affordable and for-rent market rate housing, (iii) the rights of City and the public to have access to use certain portions of the Property and Kohl’s Parcel and Project improvements to be available for public use; (c) requirements for t iming of construction of the Project; (d) the amount of retail frontage required by the Project entitlements and Downtown Napa Specific Plan Guidelines; (e) a plan for Buyer’s participation in the improvement or reuse of Dwight Murray Plaza; (f) parking qu antities sufficient to serve the Project’s residential, hotel and retail components; (g) vesting periods and impact fees; (h) CEQA compliance; (i) requirements for and forms of Recordable Agreements; and (j) such other matters related to the Property and K ohl’s Parcel, and the Project as the Parties may agree, each in its sole and absolute discretion. If the Parties have not executed a Development Agreement in form mutually acceptable to the Parties by the Outside DA Deadline, then this Agreement shall automatically terminate and the Deposit, including all accrued interest, shall be returned to Buyer and, except as otherwise provided herein, neither Party shall have any further rights or obligations hereunder.
ATTACHMENT 3
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4 5. Amendment of Section 23. Section 23 of the Purchase and Sale Agreement (Notice) is hereby amended and restated in part (notice to buyer) as follows:
TO BUYER: Napa Parkway Plaza, LLC
1339 Pearl Street, Suite 201
Napa, CA 94559
Attention: Andrew Mazotti
Tel. 707-257-0600
Coombs Street LLC
Christopher M. George
c/o CMG Mortgage
3160 Crow Canyon Road, Suite 400
San Ramon, California 94583
E-mail: [email protected]
5.6. Amendment Controls. In the event that the terms of this Amendment and the Purchase and Sale Agreement are held to be inconsistent, the terms of this Amendment shall control.
6.7. Ratification and Affirmation. Seller and Buyer each agree and warrant that, except as specifically provided for in this Amendment, the Purchase and Sale Agreement is unmodified, in full force and effect, and each party hereby ratifies and affirms the Purchase and Sale Agreement and any terms contained therein not otherwise modified by this Amendment.
7.8. Counterparts. This Amendment may be executed in counterparts, each of which shall be deemed an original but all of which, taken together, shall constitute one and the same instrument. Each party may rely upon facsimile or electronic mail counterparts of this Amendment signed by the other party with the same effect as if such party had received an original counterpart signed by such other party.
[Signatures on the following page]
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ATTACHMENT 3
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5 IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Agreement of Purchase and Sale and Joint Escrow Instructions as of the Date of First Amendment set forth above.
SELLER:
CITY OF NAPA, a California charter city
By:
Steve Potter, City Manager
[Signature must be notarized]
ATTEST:
By:
Tiffany Carranza, City Clerk
COUNTERSIGNED:
By: _______________________________
Joy Riesenberg, City Auditor
APPROVED AS TO FORM:
By:
Michael Barrett, City Attorney
BUYER:
COOMBS STREET LLC, a California limited
liability company
By:
___________________
[Signature must be notarized]
Its: ___________________
ATTACHMENT 3
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6 ACCEPTANCE BY ESCROW HOLDER
Escrow Holder hereby acknowledges receipt of a fully executed copy of the foregoing First Amendment to Agreement of Purchase and Sale and Joint Escrow Instructions (1051 – 1199 Pearl St.) APN 003-166-008 & 003-166-011, Napa, California on this date and agr ees to abide by the escrow instructions contained therein.
Escrow Holder:
PLACER TITLE COMPANY OF NAPA
By:
Name: _____________________________
Date:
ATTACHMENT 3
Assignment of Agreement C2020-174 Page 1 of 2 Form 2.2.2 (2018-09-26) ASSIGNMENT OF AGREEMENT NO. C2020-174
AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS AGREEMENT NO. C2020-174
1051 – 1199 Pearl St.
APN 003-166-008 & 003-166-011
Napa, California
This Assignment of Agreement (“ Assignment”) by and among Napa Parkway Plaza, LLC , a California Limited Liability Company (“Assignor”), and Coombs Street LLC, a California Limited Liability Company (“Assignee”), and the City of Napa, a California charter city (“City”), (collectively, the “Parties”) is effective on the Effective Date identified on the signature page.
RECITALS
A. City and Assignor entered into an Agreement entitled Agreement of Purchase and Sale and Joint Escrow Instructions City Agreement No. C2020-174, (“Agreement”) on or about July 31, 2020, by which the City agreed to sell to the Assignor certain real property improved with a surface parking lot located in Napa, California (defined in the Agreement as “Property”) , subject to certain terms, conditions and provisions as described in the Agreement.
B. On or about February 28 , 2022, Assignor provided notice to the City that Assignor conveyed all interest in the Kohl’s Parcel for the purposes of the redevelopment of the First Street Napa Phase II Project (as such terms are defined in the Agreement) and that it intends to transfer and convey all of its rights and delegate its obligations under the Agreement to the Assignee, and Assignee intended to accept and assume Assignor’s rights and obligations under the terms of the Agreement.
C. The City has approved of the proposed assignment and delegation to Assignee, subject to the terms and conditions of this Assignment.
NOW, THEREFORE, the City, Assignor, and Assignee, for the mutual consideration described herein, agree as follows:
1. INCORPORATION BY REFERENCE . This Assignment incorporates by reference all terms and conditions set forth in the Agreement and amendments thereto, if any , unless specifically modified by this Assignment. All terms and conditions set forth in the Agreement or amendments thereto which are not specifically modified by this Assignment remain in full force and effect with respect to Assignee’s rights and obligations.
2. ASSIGNMENT FROM ASSIGNOR TO ASSIGNEE. Pursuant to the terms of this Assignment, Assignor hereby assigns all rights and delegates all obligations pursuant to the Agreement to Assignee , and Assignee hereby accepts all the rights and obligations under the Agreement from Assignor.
3. ACCEPTANCE OF ASSIGNMENT BY CITY . The City hereby accepts the assignment from Assignor to Assignee, subject to the terms and conditions of this Assignment.
4. NOTICE. All subsequent notices to Assignee will be addressed to Assignee as follows:
Coombs Street LLC
Christopher M. George
c/o CMG Mortgage
3160 Crow Canyon Road, Suite 400
San Ramon, California 94583
E-mail: [email protected]
ATTACHMENT 3
Assignment of Agreement C2020-174 Page 2 of 2 Form 2.2.2 (2018-09-26) With Copy To:
VG3 Development Company
321 Hartz Avenue,
Suite 200 Danville, California 94526
5. ENTIRE AGREEMENT . This Assig nment (including the Agreement; any amendments thereto; this Assignment; and any documents incorporated) constitutes the entire integrated understanding between the Parties concerning the services described in the Agreement. This Assignment supersedes all prior negotiations, agreements, and understandings regarding the services described herein, whether written or oral. The documents incorporated by reference into this Assignment are complementary; what is called for in one is binding as if called for in all.
6. SIGNATURES. The individuals executing this Assignment represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Assignment on behalf of the respective Parties they represent . This Assignment shall inure to the benefit of and be binding upon the Parties and their respective successors and assigns.
IN WITNESS WHEREOF, the Parties have executed this Assignment to be effective on the Effective Date set forth below.
CITY: ASSIGNOR:
CITY OF NAPA, a California charter city Napa Parkway Plaza, LLC, a California limited liability company
By: By:
Steve Potter, City Manager _________________________________ Its:
ATTEST:
Tiffany Carranza, City Clerk
Date: ASSIGNEE:
(“Effective Date”) COOMBS STREET LLC, a California limited liability company
COUNTERSIGNED: By:
_________________________________
Its:
Joy Riesenberg, City Auditor
APPROVED AS TO FORM:
Michael W. Barrett, City Attorney
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