Attachment 11 of 5
Imwalle Asset Management Company – Tait and Church Exclusive Negotiating Rights Agreement
EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT
This Exclusive Negotiating Rights Agreement ("Agreement") is entered into as of this 2nd
day of April, 2019 (the "Effective Date"), by and between the Town of Los Gatos, a Municipal
Corporation, ("Town"), and Imwalle Asset Management Company, a California Corporation
("Developer"). The Town and the Developer (sometimes collectively referred to as the
"parties") have entered into this Agreement on the basis of the following facts:
RECITALS
A. WHEREAS, the Town owns the property located at 4 Tait Avenue, Los Gatos, CA; APN:
510-44-054 (“Tait Property”); and
B. WHEREAS, the Town owns the property located at 75 Church Street, Los Gatos, CA; APN:
529-54-050 (“Forbes Mill Property”).
C. WHEREAS, the Developer is a local corporation that desires to lease and develop the
Tait and Forbes Mill Property to serve as commercial space consistent with the Town’s
goals, including those set forth in the Town’s General Plan and Zoning Code; and
D. WHEREAS, the Town now desires to offer Developer the opportunity to exclusively
negotiate with the Town for the lease of the Tait and Forbes Mill Property.
E. WHEREAS, the parties acknowledge and agree that this Agreement in itself does not
obligate any party to lease any property.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and promises contained
herein and for other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties mutually agree as follows:
ARTICLE 1.
EXCLUSIVE NEGOTIATIONS RIGHT
1.1 Good Faith Negotiations. The Town and the Developer shall negotiate diligently and
in good faith, during the Negotiating Period described in 0, the terms of a Lease Agreement for
the Tait and Forbes Mill Properties. During the Negotiating Period, the parties shall use good
faith efforts to accomplish the respective tasks outlined in ARTICLE 2 to facilitate the
negotiation of a mutually satisfactory Lease Agreement.
1.2 Negotiating Period. The negotiating period (the "Negotiating Period") under this
Agreement shall be 180 days, commencing on the Effective Date. The Negotiating Period may
be extended on the Town’s behalf for up to an additional 180 days by the Town Manager
(“Manager”), if, in the Manager’s judgment, sufficient progress toward mutually acceptable
Lease Agreements has been made during the initial one year negotiating period to merit such
extension.
ATTACHMENT 1
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Imwalle Asset Management Company – Tait and Church Exclusive Negotiating Rights Agreement
If the Lease Agreement has not been executed by the Town and the Developer by the
expiration of the Negotiating Period, then this Agreement shall terminate and no party shall
have any further rights or obligations under this Agreement except that the indemnity
provisions of 02 shall survive such termination. If the Lease Agreement is executed by the
Town and the Developer then, upon such execution, this Agreement shall terminate, and all
rights and obligations of the parties shall be as set forth in the executed Lease Agreements.
Notwithstanding the preceding paragraph, if by the end of the Negotiating Period , a
draft Lease Agreement is mutually agreed upon by the Developer and the Town, the Manager
may extend the termination date of this Agreement to the date on which the Town agrees to
hold a public hearing to consider approving the Lease Agreement.
1.3 Exclusive Negotiations. During the Negotiating Period, the Town and the Developer
shall not negotiate with any entity, other than the parties hereto, regarding development of the
subject properties, or solicit or entertain bids or proposals to do so.
ARTICLE 2.
NEGOTIATION TASKS
2.1 Overview. To facilitate negotiation of the Lease Agreement, the parties shall use
reasonable good faith efforts to accomplish the tasks set forth in this Article 2 in a timeframe
that will support negotiation and execution of mutually acceptable Lease Agreement prior to
the expiration of the Negotiating Period.
2.2 Lease and Development Proposal for both Properties. Sixty days (60) days after the
Effective Date, the Developer shall submit to the Town a proposed Lease Agreement, site plan,
concept drawings for the site plan, massing diagrams, and renderings identifying the location,
general configuration, and proposed design characteristics of the buildings, parking spaces,
landscaping, and other aspects of the Project (the "Project Proposal"). The Project Proposal
shall be subject to review and comment by Town Staff and must be compatible with the
existing development of surrounding land uses. Concurrently with its submission of the Project
Proposal, Developer shall submit a detailed financial proforma for the Project containing,
among other matters, a detailed development cost budget, which will be used to evaluate the
financial feasibility of the Project. The Developer's financial analysis shall reflect the Developer's
obligation to pay prevailing wages in connection with the construction of the Project Proposal.
2.3 Modifications to Lease and Development Proposal. During the Negotiating Period,
the Developer shall prepare appropriate refinements and modifications to the Lease Agreement
and Project Proposal as required by Town Staff pursuant to 0.
2.4 Due Diligence. During the Negotiating Period, the Developer shall determine
whether the site is suitable for development of the Project Proposal, taking into account the
geotechnical and soils conditions, the presence or absence of toxic or other haza rdous
materials, and other environmental and regulatory factors.
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Imwalle Asset Management Company – Tait and Church Exclusive Negotiating Rights Agreement
2.5 Reports. Unless otherwise waived by the Town, the Developer shall provide the
Town with copies of all reports, studies, analyses, correspondence, and similar documents, but
excluding confidential information, prepared or commissioned by the Developer with respect to
this Lease Agreement and the Project Proposal, promptly upon their completion.
While desiring to preserve its rights with respect to treatment of certain information on
a confidential or proprietary basis, the Developer acknowledges that the Town will need
sufficient, detailed information about the Lease Agreement and Project Proposal (including,
without limitation the financial information described in 0 and Error! Reference source not
found.) to make informed decisions about the content and approval of the Lease Agreement.
The Town will work with the Developer to maintain the confidentiality of proprietary
information subject to the requirements imposed on the Town by the Public Records Act
(Government Code Section 6253 et seq.). The Developer acknowledges that the Town may
share information provided by the Developer of a financial and potential proprietary nature
with third party consultants and members of the Town Council as part of the negotiation and
decision making process. If this Agreement is terminated without the execution of a Lease
Agreement, the Town shall return to the Developer any proprietary information submitted by
the Developer under this Agreement.
2.6 Planning Approvals. The Developer acknowledges that the Project Proposal
requires approvals and entitlements from the Town Community Development Department
("Planning Approvals") and shall submit a formal application for the Planning Approvals. Costs
and fees associated with the Planning Approvals review shall be borne by the Developer.
Nothing in this Agreement shall be construed to compel the Town to approve or make any
particular findings with respect to Planning Approvals. Costs and fees associated with the
Planning Approvals shall be borne by the Developer.
ARTICLE 3.
GENERAL PROVISIONS
3.1 Limitation on Effect of Agreement. This Agreement shall not obligate either the
Town or the Developer to enter into a Lease Agreement. By execution of this Agreement, the
Town is not committing itself to or agreeing to undertake acquisition, disposition, or exercise of
control over any property. Execution of this Agreement by the Town is merely an agreement to
conduct a period of exclusive negotiations in accordance with the terms hereof, reserving for
subsequent Town Council action the final discretion and approval regarding the execution of
any Agreement and all proceedings and decisions in connection therewith. Any Agreement
resulting from negotiations pursuant to this Agreement shall become effective only if and after
such Agreement has been considered and approved by the Town Council, following conduct of
all legally required procedures, including without limitation, all required environmental review
processes and all other applicable governmental approvals, and executed by duly authorized
representatives of the Town and Developer. Until and unless a Lease Agreements is signed by
the Developer and approved by the Town Council, no agreement drafts, actions, deliverables,
or communications arising from the performance of this Agreement shall impose any legally
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Imwalle Asset Management Company – Tait and Church Exclusive Negotiating Rights Agreement
binding obligation on any party to enter into or support entering into a Lease Agreement or be
used as evidence of any oral or implied agreement by either party to enter into any other
legally binding document.
3.2 Indemnification. Developer shall defend, indemnify, and hold harmless the Town,
and its officers, employees and agents against any claim, loss or liability arising out of this
Agreement resulting in any way from work performed under this Agreement, including any
work performed on the Property, by Developer, its representatives, consultants, contractors,
agents or employees. This indemnification shall survive the expiration or other termination of
this Agreement.
3.3 Notices. Formal notices, demands, and communications (other than day to day
routine communications) between the Town and the Developer shall be sufficiently given if,
and shall not be deemed given unless, dispatched by certified mail, postage prepaid, return
receipt requested, or sent by express delivery or overnight courier service, to the office of the
parties shown as follows, or such other address as the parties may designate in writing from
time to time:
Town: Town of Los Gatos
110 East Main Street
Los Gatos, CA 95030
Attn: Town Manager
Developer: Imwalle Asset Management Company
365 E Campbell Ave.
Campbell, CA 95008
Attn: Donald Imwalle Jr.
Such written notices, demands and communications shall be effective on the date
shown on the delivery receipt as the date delivered or the date on which delivery was refused.
3.4 Right of Entry. The Developer shall have the right to enter the project sites to
conduct investigations in accordance with this Agreement.
3.5 No Commissions. The Town shall not be liable for any real estate commissions or
brokerage fees that may arise from this Agreement. The Town represents that it has engaged
no broker, agent, or finder in connection with this transaction, and the Developer shall defend
and hold the Town harmless from any claims by any broker, agent, or finder retained by the
Developer.
3.6 Defaults and Remedies. Failure by any Party to negotiate in good faith or failure to
fulfill its obligations as provided in this Agreement shall constitute an event of default
hereunder. The non-defaulting Party shall give written notice of a default to the defaulting
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Imwalle Asset Management Company – Tait and Church Exclusive Negotiating Rights Agreement
Party, specifying the nature of the default and the required action to cure the default. If a
default remains uncured fifteen (15) days after receipt by the defaulting Party of such notice,
the non-defaulting Party may terminate this Agreement. In the event of an uncured default by
either party, the sole remedy shall be to terminate this Agreement, and neither Party shall have
any liability to the other Party for damages or otherwise for any default, nor shall any Party
have any other claims with respect to performance under this Agreement . Each Party
specifically waives and releases any such rights or claims it may otherwise have at law or in
equity.
3.7 Attorneys' Fees. The prevailing party in any action to enforce this Agreement shall
be entitled to recover attorneys' fees and costs from the other party.
3.8 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of California.
3.9 Entire Agreement. This Agreement constitutes the entire agreement of the parties
regarding the subject matters of this Agreement.
3.10 Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original but all of which together shall constitute one and the same
agreement.
3.11 Assignment. The Developer may not transfer or assign any or all of its rights or
obligations hereunder except with the prior written consent of the Town, which consent shall
be granted or withheld in the Town’s sole discretion, and any such attempted transfer or
assignment without the prior written consent of Town shall be void.
3.12 No Third Party Beneficiaries. This Agreement is made and entered into solely for
the benefit of the Town and the Developer and no other person shall have any right of action
under or by reason of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the parties on the date
first above written.
TOWN OF LOS GATOS DEVELOPER
By: __________________________ By: _________________________
Laurel Prevetti, Town Manager Donald Imwalle, Jr., President
APPROVED AS TO FORM: ATTEST:
By: _________________________ By: _________________________
Robert Schultz, Town Attorney Shelley Neis, Town Clerk