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HomeMy WebLinkAbout2007 CON CDC Constellation Property Group - 3rd Amendment DDAAMENDMENT NO. 3 TO DISPOSITION AND DEVELOPMENT AGREEMENT This Amendment No. 3 to Disposition and Development Agreement (this "Amendment") is made and entered into as of March 6, 2007 (the "Effective Date"), by and between the Community Development Commission of the City of National City, a public body, corporate and politic (the "CDC") and Constellation Property Group (A Avenue) LP, a Delaware limited partnership, as successor in interest to Constellation Property Group (NatCity 12th) LP, a Delaware limited partnership (the "Developer"). Recitals A. The CDC and Developer entered into that certain Disposition and Development Agreement dated August 30, 2005 (the "Original DDA"). B. On October 21, 2005, Developer and Constellation Property Group (NatCity 12`h) LP, a Delaware limited partnership (the "Original Assignee"), entered into that certain Assignment and Assumption Agreement (the "Original Assignment"), pursuant to which Developer assigned all of its right, title and interest in and to the Original DDA to Original Assignee. C. In connection with the Original Assignment, Original Assignee and CDC entered into that certain Amendment No. 1 to Disposition and Development Agreement dated as of October 25, 2005 ("Amendment No. 1" and, together with the Original DDA, the "DDA"), pursuant to which the Original Assignee agreed to construct office space and a trolley transit center in accordance with the terms and conditions of Amendment No. 1. D. On or about October 17, 2006, Original Assignee and Developer entered into that certain Assignment and Assumption Agreement (the "Re -Assignment"), pursuant to which Original Assignee assigned all of its right, title and interest in and to the DDA back to Developer, and Developer assumed all of the Original Assignee's duties, obligations and liabilities under the DDA (the "Obligations"). E. On or about October 17, 2006, the CDC and Developer entered into Amendment No. 2 to the DDA to replace the obligation of Developer to provide the office space with the obligation to provide a residential condominium in the Project developed on the Site. F. As part of Amendment No. 2 to the DDA, the CDC consented to the Original Assignee transferring all of its rights, title and interest in the Site and the Project back to the Developer. SDCA_292939.2 G. As part of Amendment No. 2 to the DDA, Developer agreed to cause the Grant Deed, substantially in the form of Exhibit "A" to be recorded with the County Recorder no later than February 28, 2007. H. Developer has found its necessary to extend the time in which the aforementioned Grant Deed, in which the Original Assignee transfers the Site to Developer, to April 30, 2007, and the CDC is willing to consent to such extension. I. The parties wish to further amend the DDA to authorize the CDC's Executive Director, in his discretion, to grant extensions of time to Developer to comply with Developer's obligations under the DDA. NOW, THEREFORE, in consideration of the mutual covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the CDC and Developer agree as follows: Agreement 1. Grant Deed. Developer agrees to cause that certain Grant Deed, substantially in the form of Exhibit A attached hereto, to be recorded with the County Recorder of the County of San Diego, California, no later than April 30, 2007. 2. Consent. The CDC hereby consents to the recordation of the aforementioned Grant Deed no later than April 30, 2007. 3. Time Extensions. The Executive Director of the CDC may, in his sole discretion, grant extensions of time to Developer to comply with Developer's obligations under the DDA. 4. Miscellaneous. Except to the extent expressly modified by this Amendment, the DDA remains in full force and effect. "fo the extent of any inconsistency between this Amendment and the DDA, the terms and conditions of this Amendment shall control. This Amendment may be executed in multiple counterparts, all of which, taken together, shall constitute one and the same document. SDCA_292939.2 IN WITNESS WHEREOF, the CDC and Developer have executed this Amendment as of the Effective Date first set forth above. Attested: 3 SDCA_292939.2 CDC: Community Development Commission of the City of National City, a public body, corporate d politic By: on Morrison Chainnan DEVELOPER: Constellation Property Group (A Avenue) LP, a Delaware limited partnership By: Constellation Property Management, Inc., a De aware corporation Its: GI • I Partner 9 ,it By: Eugen archese Presid EXHIBIT A RECORDING REQUESTED BY, ) MAIL TAX STATEMENTS TO, ) AND WHEN RECORDED MAIL TO: ) Constellation Property Group (A Avenue) LP ) 1133 Columbia Street, Suite 101 San Diego, CA 92101 ) Attn. Mr. Wayne Hann ) ) ) GRANT DEED In accordance with Section 11932 of the California Revenue and Taxation Code, Grantor has declared the amount of the transfer tax that is due by a separate statement that is not being recorded with this Grant Deed. For valuable consideration, receipt of which is hereby acknowledged, CONSTELLATION PROPERTY GROUP (NATCITY 12TH) LP, a Delaware limited partnership ("Grantor"), hereby grants to CONSTELLATION PROPERTY GROUP (A AVENUE) LP, a Delaware limited partnership ("Grantee"), the real property hereinafter referred to as the "Site," described in Exhibit A attached hereto and incorporated herein, subject to the existing easements, restrictions and covenants of record described there. This Grant Deed is subject to: (a) non -delinquent real and personal property taxes assessments and bonds for the current fiscal year; (b) the lien of supplemental taxes, if any, assessed pursuant to Chapter 3.5 of the California Revenue and Taxation Code; and (c) all covenants, conditions, restrictions, easements, liens, encumbrances, claims, rights and other matters recorded as a matter of public record, including that certain Grant Deed entered into by and between Grantor, as grantee, and the Community Development Commission of the City of National City, a public body, corporate and politic, as grantor, and recorded on October 26, 2005, as Document No. 2005-0930606, in the County Recorder's Office of the County of San Diego, California. The Grantee herein covenants by and for itself and its successors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sub lessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land. [Signature Page Follows] A-1 SDCA_292939.2 IN WITNESS WHEREOF, Grantor and Grantee have executed this Grant Deed this day of , 2007. GRANTOR: CONSTELLATION PROPERTY GROUP (NATCITY 12r") LP, a Delaware limited liability partnership By: Constellation Property Management, Inc., a Delaw. ' Corporation, its General Partner e By: Eug ne � ar e, Pr dent GRANTEE: CONSTELLATION PROPERTY GROUP (A AVENUE) LP, a Delaware limited liability partnership By: Constellat' •n Property Management, Inc., a Delaw. = Corporat' + , ; s General Partner A-2 SDCA_292939.2 By: Eugene .' . hese, resident EXHIBIT A TO GRANT DEED LEGAL DESCRIPTION OF SITE PARCEL 2 OF PARCEL MAP NO. 10377, IN THE CITY OF NATIONAL CITY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 27, 1980 AS FILE NO. 80-275023 OF THE OFFICIAL RECORDS. APN: 556-554-16 A-3 SDCA_292939.2 RESOLUTION NO. 2007 — 41 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE AMENDMENT NO. 3 TO THE DISPOSITION AND DEVELOPMENT AGREEMENT WITH CONSTELLATION PROPERTY GROUP (A AVENUE) LP WHEREAS, Constellation Property Group (A Avenue) LP, entered into a Disposition and Development Agreement ("DDA") dated August 30. 2005, pursuant to which A Avenue agreed to develop a real estate project in National City known as "Centro". Pursuant to the DDA, A Avenue further agreed to build office space and four parking spaces for the CDC in the Centro project, and a trolley transit center; and WHEREAS, Constellation Property Group (Nat City 12th) is an affiliate of A Avenue and the developer of the Revolution 2 project located adjacent to Centro; and WHEREAS, on October 21, 2005, A Avenue and Nat City 12th entered into an Assignment and Assumption Agreement pursuant to which A Avenue assigned all of its rights under the DDA to Nat City 12th, and Nat City 12th agreed to assume the obligations under the DDA; and WHEREAS, in connection with the October 21, 2005 assignment, the CDC and Nat City 12th entered into Amendment No. 1 to the DDA on October 25, 2005, pursuant to which Nat City 12th agreed to construct the office space and trolley transit center; and WHEREAS, on or about October 17, 2006, A Avenue and Nat City 12th entered into an Assignment and Assumption Agreement pursuant to which Nat City 12th assigned back to A Avenue the rights and obligations under the DDA; and WHEREAS, on or about October 17, 2006, the CDC agreed to enter into Amendment No. 2 to the DDA, pursuant to which A Avenue's obligation to provide office space to the CDC would be replaced with an obligation to provide a residential condominium unit in the Centro project; and WHEREAS, Amendment No. 2 to the DDA provided that the Grant Deed conveying the project site from Constellation Property Group (Nat City 12th) LP to Constellation Property Group (A Avenue) LP be recorded by February 28, 2007; the developer has now requested that this date be extended to April 30, 2007; and WHEREAS, it has been proposed that the DDA be amended to authorize the Executive Director, in his sole discretion, to grant future extensions of time to the Developer to comply with the Developer's obligations under the DDA. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City hereby authorizes the Chairman to execute Amendment No. 3 to the Disposition and Development Agreement with Constellation Property Group (A Avenue) LP. Said Amendment Agreement is on file in the office of the City Clerk. "" Signature Page to Follow """ • Resolution No. 2007 — 41 March 6, 2007 Page 2 PASSED and ADOPTED this 6th day of March, 2007. ATTEST: rad Secretary APPROVED AS TO FORM: r) George H. Eiser, III Legal Counsel Ron Morrison, Chairman Passed and adopted by the Community Development Commission of the City of National City, California, on March 6, 2007, by the following vote, to -wit: Ayes: Commissioners Morrison, Natividad, Parra, Ungab. Nays: None. Absent: Zarate. Abstain: None. AUTHENTICATED BY: RON MORRISON Chairman, Community D- elopment Commission /`• Secretary, Co opment Commission By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2007-41 of the Community Development Commission of the City of National City, Califomia, passed and adopted on March 6, 2007. Secretary, Community Development Commission By: Deputy c 0, o City of National City, California COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT MEETING DATE March 6, 2007 AGENDA ITEM NO. 18 ITEM TITLE RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY APPROVING AMENDMENT NO. 3 TO THE DISPOSITION AND DEVELOPMENT AGREEMENT WITH CONSTELLATION PROPERTY GROUP ("A" AVENUE) LP PREPARED BY George H. Eiser, III n‘ DEPARTMENT City Attorney (ext. 4421) EXPLANATION Please see attached memorandum. Environmental Review N/A Financial Statement N/A Approved By: Finance Director Account No. STAFF RECOMMENDATION Adopt resolution. BOARD / COMMISSION RECOMMENDATION N/A ATTACHMENTS ( Listed Below) Resolution No. o o " Memorandum Resolution Amendment No. 3 to Disposition and Development Agreement A-200 (9/99) AMENDMENT NO. 3 TO DISPOSITION AND DEVELOPMENT AGREEMENT This Amendment No. 3 to Disposition and Development Agreement (this "Amendment") is made and entered into as of March 6, 2007 (the "Effective Date"), by and between the Community Development Commission of the City of National City, a public body, corporate and politic (the "CDC") and Constellation Property Group (A Avenue) LP, a Delaware limited partnership, as successor in interest to Constellation Property Group (NatCity 12th) LP, a Delaware limited partnership (the "Developer"). Recitals A. The CDC and Developer entered into that certain Disposition and Development Agreement dated August 30, 2005 (the "Original DDA"). B. On October 21, 2005, Developer and Constellation Property Group (NatCity 12`h) LP, a Delaware limited partnership (the "Original Assignee"), entered into that certain Assignment and Assumption Agreement (the "Original Assignment"), pursuant to which Developer assigned all of its right, title and interest in and to the Original DDA to Original Assignee. C. In connection with the Original Assignment, Original Assignee and CDC entered into that certain Amendment No. 1 to Disposition and Development Agreement dated as of October 25, 2005 ("Amendment No. 1" and, together with the Original DDA, the "DDA"), pursuant to which the Original Assignee agreed to construct office space and a trolley transit center in accordance with the terms and conditions of Amendment No. 1. D. On or about October 17, 2006, Original Assignee and Developer entered into that certain Assignment and Assumption Agreement (the "Re -Assignment"), pursuant to which Original Assignee assigned all of its right, title and interest in and to the DDA back to Developer, and Developer assumed all of the Original Assignee's duties, obligations and liabilities under the DDA (the "Obligations"). E. On or about October 17, 2006, the CDC and Developer entered into Amendment No. 2 to the DDA to replace the obligation of Developer to provide the office space with the obligation to provide a residential condominium in the Project developed on the Site. F. As part of Amendment No. 2 to the DDA, the CDC consented to the Original Assignee transferring all of its rights, title and interest in the Site and the Project back to the Developer. SDCA 292939.2 G. As part of Amendment No. 2 to the DDA, Developer agreed to cause the Grant Deed, substantially in the form of Exhibit "A" to be recorded with the County Recorder no later than February 28, 2007. H. Developer has found its necessary to extend the time in which the aforementioned Grant Deed, in which the Original Assignee transfers the Site to Developer, to April 30, 2007, and the CDC is willing to consent to such extension. I. The parties wish to further amend the DDA to authorize the CDC's Executive Director, in his discretion, to grant extensions of time to Developer to comply with Developer's obligations under the DDA. NOW, THEREFORE, in consideration of the mutual covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the CDC and Developer agree as follows: Agreement 1. Grant Deed. Developer agrees to cause that certain Grant Deed, substantially in the form of Exhibit A attached hereto, to be recorded with the County Recorder of the County of San Diego, California, no later than April 30, 2007. 2. Consent. The CDC hereby consents to the recordation of the aforementioned Grant Deed no later than April 30, 2007. 3. Time Extensions. The Executive Director of the CDC may, in his sole discretion, grant extensions of time to Developer to comply with Developer's obligation under the DDA. 4. Miscellaneous. Except to the extent expressly modified by this Amendment, the DDA remains in full force and effect. To the extent of any inconsistency between this Amendment and the DDA, the terms and conditions of this Amendment shall control. This Amendment may be executed in multiple counterparts, all of which, taken together, shall constitute one and the same document. 2 SDCA_292939.2 IN WITNESS WHEREOF, the CDC and Developer have executed this Amendment as of the Effective Date first set forth above. Attested: CDC: Community Development Commission of the City of National City, a public body, corporate and politic By: Brad Raulston Ron Morrison CDC Secretary Chairman 3 SDCA_292939.2 DEVELOPER: Constellation Property Group (A Avenue) LP, a Delaware limited partnership By: Constellation Property Management, Inc., a Delaware corporation Its: General Partner By: Eugene Marchese President EXHIBIT A RECORDING REQUESTED BY, MAIL TAX STATEMENTS TO, AND WHEN RECORDED MAIL TO: Constellation Property Group (A Avenue) LP 1133 Columbia Street, Suite 101 San Diego, CA 92101 Attn. Mr. Wayne Hann GRANT DEED In accordance with Section 11932 of the California Revenue and Taxation Code, Grantor has declared the amount of the transfer tax that is due by a separate statement that is not being recorded with this Grant Deed. For valuable consideration, receipt of which is hereby acknowledged, CONSTELLATION PROPERTY GROUP (NATCITY 12TH) LP, a Delaware limited partnership ("Grantor"), hereby grants to CONSTELLATION PROPERTY GROUP (A AVENUE) LP, a Delaware limited partnership ("Grantee"), the real property hereinafter referred to as the "Site," described in Exhibit A attached hereto and incorporated herein, subject to the existing easements, restrictions and covenants of record described there. This Grant Deed is subject to: (a) non -delinquent real and personal property taxes assessments and bonds for the current fiscal year; (b) the lien of supplemental taxes, if any, assessed pursuant to Chapter 3.5 of the California Revenue and Taxation Code; and (c) all covenants, conditions, restrictions, easements, liens, encumbrances, claims, rights and other matters recorded as a matter of public record, including that certain Grant Deed entered into by and between Grantor, as grantee, and the Community Development Commission of the City of National City, a public body, corporate and politic, as grantor, and recorded on October 26, 2005, as Document No. 2005-0930606, in the County Recorder's Office of the County of San Diego, California. The Grantee herein covenants by and for itself and its successors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sub lessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land. [Signature Page Follows] A-1 SDCA_292939.2 IN WITNESS WHEREOF, Grantor and Grantee have executed this Grant Deed this day of , 2007. SOCA_292939.2 GRANTOR: CONSTELLATION PROPERTY GROUP (NATCITY 12T") LP, a Delaware limited liability partnership By: Constellation Property Management, Inc., a Delaware Corporation, its General Partner By: Eugene Marchese, President GRANTEE: CONSTELLATION PROPERTY GROUP (A AVENUE) LP, a Delaware limited liability partnership By: Constellation Property Management, Inc., a Delaware Corporation, its General Partner A-2 By: Eugene Marchese, President EXHIBIT A TO GRANT DEED LEGAL DESCRIPTION OF SITE PARCEL 2 OF PARCEL MAP NO. 10377, IN THE CITY OF NATIONAL CITY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 27, 1980 AS FILE NO. 80-275023 OF THE OFFICIAL RECORDS. APN: 556-554-16 A-3 SDCA_292939.2 City of National City Office of the City Attorney 1243 National City Boulevard, National City, CA 91950-4301 George H. Eiser, III • City Attorney (619) 336-4220 Fax: (619) 336-4327 TDD: (619) 336-1615 TO: CDC Chairman and Board Members DATE: February 28, 2007 FROM: Legal Counsel SUBJECT: Amendment No. 3 to DDA with Constellation Property Group The CDC entered into a Disposition and Development Agreement (DDA) with Constellation Property Group on August 30, 2005. Constellation Property Group (A Avenue) LP was the entity developing the Centro condominium project, and Constellation Property Group (Nat City 12th) LP was the entity developing the Revolution 2 condominium Project. The DDA required the Developer to construct and pay for a Trolley Transit Center,. to be conveyed to the CDC, and to convey office space to the CDC. On October 25, 2005, the Community Development Commission approved Amendment No. 1 to the DDA, which assigned the obligation to construct a trolley transit and convey office space to the CDC from the A Avenue entity to the Nat City 12th entity. On October 17, 2006, the CDC approved Amendment No. 2 to the DDA, by which it consented to the assignment of the obligation back to the A Avenue entity from the Nat City 12th entity. Amendment No. 2 also replaced the obligation of the developer to convey office space, and instead require a residential condominium unit to be conveyed to the CDC. Amendment No. 2 provided that the Grant Deed conveying the project site from Constellation Property Group (Nat City 12th) LP to Constellation Property Group (A Avenue) LP be recorded by February 28, 2007. The developer has requested that the date be extended to April 30, 2007. The proposed resolution would approve Amendment No. 3 to the DDA to extend the recordation date of the Grant Deed, as requested by the Developer. The resolution would also amend the DDA to authorize the Executive Director, in his sole discretion, to grant future extensions of time to the Developer to comply with the Developer's obligations under the DDA. GEORGE Fl. EISER, III Legal Counsel GHE/gmo Recycled Paper RESOLUTION NO. 2007 — 41 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE AMENDMENT NO. 3 TO THE DISPOSITION AND DEVELOPMENT AGREEMENT WITH CONSTELLATION PROPERTY GROUP (A AVENUE) LP WHEREAS, Constellation Property Group (A Avenue) LP, entered into a Disposition and Development Agreement ("DDA") dated August 30, 2005, pursuant to which A Avenue agreed to develop a real estate project in National City known as "Centro". Pursuant to the DDA, A Avenue further agreed to build office space and four parking spaces for the CDC in the Centro project, and a trolley transit center; and WHEREAS, Constellation Property Group (Nat City 12th) is an affiliate of A Avenue and the developer of the Revolution 2 project located adjacent to Centro; and WHEREAS, on October 21, 2005, A Avenue and Nat City 12th entered into an Assignment and Assumption Agreement pursuant to which A Avenue assigned all of its rights under the DDA to Nat City 12th, and Nat City 12th agreed to assume the obligations under the DDA; and WHEREAS, in connection with the October 21, 2005 assignment, the CDC and Nat City 12th entered into Amendment No. 1 to the DDA on October 25, 2005, pursuant to which Nat City 12th agreed to construct the office space and trolley transit center; and WHEREAS, on or about October 17, 2006, A Avenue and Nat City 12th entered into an Assignment and Assumption Agreement pursuant to which Nat City 12th assigned back to A Avenue the rights and obligations under the DDA; and WHEREAS, on or about October 17, 2006, the CDC agreed to enter into Amendment No. 2 to the DDA, pursuant to which A Avenue's obligation to provide office space to the CDC would be replaced with an obligation to provide a residential condominium unit in the Centro project; and WHEREAS, Amendment No. 2 to the DDA provided that the Grant Deed conveying the project site from Constellation Property Group (Nat City 12th) LP to Constellation Property Group (A Avenue) LP be recorded by February 28, 2007; the developer has now requested that this date be extended to April 30, 2007; and WHEREAS, it has been proposed that the DDA be amended to authorize the Executive Director, in his sole discretion, to grant future extensions of time to the Developer to comply with the Developer's obligations under the DDA. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City hereby authorizes the Chairman to execute Amendment No. 3 to the Disposition and Development Agreement with Constellation Property Group (A Avenue) LP. Said Amendment Agreement is on file in the office of the City Clerk. "' Signature Page to Follow "" Resolution No. 2007 — 41 March 6, 2007 Page 2 PASSED and ADOPTED this 6th day of March, 2007. Ron Morrison, Chairman ATTEST: Brad Raulston, Secretary APPROVED AS TO FORM: George H. Eiser, III Legal Counsel City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Della, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 March 22, 2007 Mr. Eugene Marchese President Constellation Property Group 1133 Columbia Street, Suite 101 San Diego, CA 92101 Dear Mr. Marchese, On March 6, 2007, Resolution No. 2007-41 was passed and adopted by the Community Development Commission of the City of National City, authorizing execution of Amendment No. 3 to the Disposition and Development Agreement with Constellation Property Group (A Avenue) LP. We are forwarding a certified copy of the above Resolution and two partially executed original agreements. Please return one fully executed original agreement to us for our files. Michael R. Dalla, CMC City Clerk Enclosure ® Recycled Paper