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Home My WebLink About2007 CON PA Costco Wholesale Corp. - 4th AmendmentFOURTH AMENDMENT TO AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT AND AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS (National City, CA) This Amendment, effective as of March 20 , 2007 is made by and among the PARKING AUTHORITY OF NATIONAL CITY, a public body, corporate and politic ("Seller"), and COSTCO WHOLESALE CORPORATION, a Washington corporation ("Buyer"). Recitals A. On or about January 21, 2003, Seller and Diamond Development LLC ("Diamond") entered into a Disposition and Development Agreement and Agreement of Purchase and Sale and Escrow Instructions ("DDA"). On or about August 5, 2003, Seller and Diamond Development LLC ("Diamond") entered into an Amended and Restated Disposition and Development Agreement and Agreement of Purchase and Sale and Escrow Instructions ("DDA") which was amended by a First Amendment effective as of October 10, 2003 ("First Amendment") to provide for the purchase and sale of the Property. B. On or about August 6, 2004, (i) Diamond assigned to Buyer, and Buyer assumed from Diamond, all of Diamond's rights, title and interest in and to the Agreement and the First Amendment; and (ii) the Agreement was amended by a Second Amendment between Seller and Buyer ("Second Amendment"). On or about January 10, 2005 the Agreement was further amended by a Third Amendment between Seller and Buyer (the "Third Amendment"). The DDA, the First Amendment, the Second Amendment and the Third Amendment are collectively referred to herein as the "Agreement." Undefined terms used herein shall have the meanings set forth in the Agreement. C. In an effort to complete all the necessary Federal, State, and local entitlement and permit requirements prior to closing, Buyer has requested, and Seller has agreed to, an extension of the Closing Date to December 13, 2008, in accordance with the terms and conditions set forth below. Agreement NOW, THEREFORE, in consideration of the covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Recitals. The foregoing recitals are true and correct and are incorporated herein by this reference. 1576083.3 71825-00144 2. Walkway Area. The "Property" to be conveyed by Seller to Buyer on the Closing Date shall exclude that area designated on Exhibit "A" hereto as the "Proposed Walkway Area." 3. Closing Date. Section 1.5 on page 2 of the Purchase Agreement is amended and restated in its entirety to read as follows: 1.5 Closing Date. The term "Closing Date" shall mean the earlier to occur of: (a) Friday, December 31, 2008 (the "Closing Deadline"), or (b) the date that is thirty (30) days after Buyer obtains final, non -appealable Development Approvals; provided, however, that if the acquisition of the open space easement held by the County of San Diego ("County") pursuant to the Option Agreement between the Seller and the County is delayed, then the parties shall extend the Closing Date to such later date as is reasonably required for the closing of the acquisition of the open space easement to occur concurrently with the Closing hereunder so that the proceeds from Buyer may be used to acquire such open space easement from the County. Notwithstanding any provision of this Agreement to the contrary, in the event that Buyer is prepared to close this transaction pursuant to the terms of this Agreement, and Seller has not deposited all documents set forth in Section 2.4 below with Title Company necessary for Closing to timely occur, then Buyer, in its sole and absolute discretion, and in addition to all other rights and remedies it may have, may, from time to time, notify Seller that Buyer extends the Closing Date to such date or dates as Buyer may elect to provide Seller with the additional time necessary for Seller to deposit the documents set forth in Section 2.4 below and Buyer may defer deposit of the balance of the Purchase Price pending Seller's performance. Seller's failure to fully perform by such extended Closing Date(s) shall constitute a default by Seller under this Agreement. 4. No Other Modifications; Amendment Controls. Except as modified by this Fourth Amendment, the terms and conditions of the Purchase Agreement remain unchanged and in full force and effect. In the event of a conflict in the terms and conditions of the Agreement and this Fourth Amendment, the terms and conditions of this Fourth Amendment shall control. All references to the Agreement in any document shall be deemed to mean the Agreement as herein modified. 5. Facsimile Signature; Counterparts. This Amendment may be executed and delivered by facsimile signature, and in more than one counterpart, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. [REST OF PAGE INTENTIONALLY LEFT BLANK SIGNATURES APPEAR ON THE FOLLOWING PAGE.] 1576083.3 71825-00144 2 IN WITNESS WHEREOF, this Amendment is executed by the parties, intending to be legally bound, as of the date first written above. SELLER: PARKING AUTHORITY OF NATIONAL CITY, ay blic body, corporate and politic B APPROVED AS TO FORM: George Eiser, Agency Counsel on orrison, Chair BUYER: COSTCO WHOLESALE CORPORATION, a Washington corpor do 1" "y. Name: Title: V.P./Abht. Seuetery 1576083.3 71825-00144 3 EXHIBIT "A" NATIONAL CITY PARCEL LEGAL DESCRIPTION PAGE 1 OF 3 THE LAND DESCRIBED HEREIN IS A PORTION OF LOT 14 OF THE NATIONAL CITY TRACT OF THE PLAZA BONITA SHOPPING CENTER, ACCORDING TO MAP THEREOF NO. 10337 FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER FEBRUARY 24, 1982, LOCATED IN THE CITY OF NATIONAL CITY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWESTERLY MOST CORNER OF SAID LOT 14, THENCE ALONG THE GENERAL WESTERLY BOUNDARY THEREOF NORTH 1648'07" WEST 2.46 FEET TO THE BEGINNING OF A NON -TANGENT CURVE, CONCAVE SOUTHERLY, HAVING A RADIUS OF 1085.00 FEET, A LINE RADIAL TO SAID POINT BEARS NORTH 00'13'26" EAST; THENCE LEAVING SAID WESTERLY BOUNDARY, EASTERLY ALONG SAID CURVE 267.27 FEET THROUGH A CENTRAL ANGLE OF 14'06'49"; THENCE SOUTH 75939'45" EAST 27.25 FEET TO THE BEGINNING OF A CURVE, CONCAVE SOUTHERLY, HAVING A RADIUS OF 760.17 FEET; THENCE EASTERLY ALONG SAID CURVE 45.05 FEET THROUGH A CENTRAL ANGLE OF 3'23'44" TO THE BEGINNING OF A NON -TANGENT CURVE, CONCAVE SOUTHERLY, HAVING A RADIUS OF 675.00 FEET, A LINE RADIAL TO SAID POINT BEARS NORTH 1124'49" EAST; THENCE EASTERLY ALONG SAID CURVE 141.91 FEET THROUGH A CENTRAL ANGLE OF 12'02'46" TO A POINT OF NON -TANGENCY, A RADIAL LINE TO SAID POINT BEARS NORTH 23'27'35" EAST; THENCE NORTH 69'50'11" EAST 56.68 FEET TO THE GENERAL NORTHEASTERLY BOUNDARY OF SAID LOT 14 AND THE GENERAL SOUTHWESTERLY RIGHT-OF-WAY OF PLAZA BONITA ROAD, 98.00 FEET WIDE, SAID POINT BEING THE BEGINNING OF A NON - TANGENT CURVE, CONCAVE NORTHEASTERLY, HAVING A RADIUS OF 419.13 FEET, A LINE RADIAL TO SAID POINT BEARS SOUTH 63'30'11" WEST; THENCE SOUTHEASTERLY ALONG SAID CURVE 104.50 FEET THROUGH A CENTRAL ANGLE OF 14'17'05"; THENCE SOUTH 40'46'54" EAST 339.82 FEET; THENCE NORTH 45'24'52" WEST 109.80 FEET TO THE BEGINNING OF A CURVE, CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 1205.00 FEET; THENCE NORTHWESTERLY ALONG SAID CURVE 814.87 FEET THROUGH A CENTRAL ANGLE OF 38'44'45" TO A POINT OF NON -TANGENCY, A RADIAL LINE TO SAID POINT BEARS NORTH 05'50'23" EAST, SAID POINT BEING THE POINT OF BEGINNING. CONTAINS 26,103 SQUARE FEET OR 0.5992 ACRES OF LAND, MORE OR LESS. EXHIBIT "A" NATIONAL CITY PARCEL LEGAL DESCRIPTION PAGE 2 OF 3 SUBJECT TO ALL EASEMENTS, COVENANTS AND AGREEMENTS OF RECORD. AS SHOWN ON SHEET 3, ATTACHED HERETO, AND BY THIS REFERENCE MADE A PART HEREOF. DATED THIS /3DAY OF , 2007. A D ORRY, ONALD ROY CORRY, L.S. 7846 EXP. 12/31/08 w F s> -00 \ ��4�`S'A8>, EXHIBIT 'A' NATIONAL CITY PARCEL PLAT 1 ');, , ,�Q�� cj° / 1 szs 0 y �/, / \ �n6> Q? �p & \ es `�7�1 \ v pp 4•A b ,43 • o) • `/ 47 ?'s'./ ,y N °?ro "' , i / p7p Ai:// ' SCALE: 1"= 100' 0 2 ' 50' 100' 200' GRAPHIC SCALE \IN LVETABE LINE BEARING DISTANCE L1 S75'39'45"E 27.25' L2 N69'50'11"E 56.68' CIREVALE CURVE DELTA RADIUS LENGTH C1 3'23'44" 760.17' 45.05' C2 14'17'05" 419.13' 104.50' m w 0 cri ti cO I I - CO 98' PAGE 3 OF 3 i IFUSCOE ENGINEERING—SAN DIEGO INC. 6390 GREENWICH DR. STE. 170 SAN DIEGO, CA 92122 3, M:\PROJECTS\2156\61C\LOT SPLIT LEGALS\NATIONAL CITY PARCEL.OWG (03-13-07 9: RESOLUTION NO. 2007 — 4 RESOLUTION OF THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE THE FOURTH AMENDMENT TO THE AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT AND AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS WITH THE COSTCO WHOLESALE CORPORATION WHEREAS, in January 2003, the Parking Authority of the City of National City ("Parking Authority") entered into a Disposition and Development Agreement and Agreement of Purchase and Escrow Instructions ("Original Purchase Agreement") with Diamond Development LLC ("Diamond") to acquire a 15.08-acre parcel (APN 564-471-110) located just northwest of the Plaza Bonita Shopping Center at Sweetwater Road and Plaza Bonita Road; and WHEREAS, in August 2003, the Parking Authority and Diamond entered into an Amended and Restated Disposition and Development Agreement and Agreement of Purchase and Sale and Escrow Instructions ("Agreement"), which was amended in October 2003, to provide for the purchase and sale of the subject parcel; and WHEREAS, in August 2004, a second amendment to the Agreement was approved, which authorized Diamond to assign to the Costco Wholesale Corporation ("Costco") all of Diamond's rights, title, and interest to the subject parcel; and WHEREAS, Costco proposed for the subject parcel the construction of a 150,354- square foot warehouse and sales area, including a tire sales/installation center, a food service/concession area, a fueling station, and over 700 surface parking spaces; and WHEREAS, on January 10, 2006, the Parking Authority approved a third amendment to the Agreement that allowed for an extension of the Agreement's Closing Date to December 13, 2007; and WHEREAS, in an effort to complete all the necessary federal, State, and local entitlement and permit requirements prior to closing, Costco requests another extension of the Agreement's Closing Date to December 13, 2008 and the Parking Authority is willing to grant such extension. NOW, THEREFORE, BE IT RESOLVED that the Parking Authority of the City of National City hereby authorizes the Chairman to execute the Fourth Amendment to the Amended and Restated Disposition and Development Agreement and Agreement of Purchase and Sale and Escrow Instructions with the Costco Wholesale Corporation. Said Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 20th day of Marc on Morrison, Chairm APPROVED AS TO FORM: George H. Eiser, III Legal Counsel Passed and adopted by the Parking Authority of the City of National City, California, on March 20, 2007, by the following vote, to -wit: Ayes: Boardmembers Morrison, Natividad, Parra, Ungab, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Chairman, Parking Auth Authority By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2007-4 of the Parking Authority of the City of National City, California, passed and adopted on March 20, 2007. Secretary, Parking Authority By: Deputy o6-?)-� City of National City, California PARKING AUTHORITY AGENDA STATEMENT MEETING DATE March 20, 2007 AGENDA ITEM NO. 1 iEM TITLE RESOLUTION OF THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE THE FOURTH AMENDMENT TO THE AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT AND AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS WITH THE COSTCO WHOLESALE CORPORATION PREPARED BY Claudia Gacitua Silver 7 DEPARTMENT City Attorney (Ext. 4222) EXPLANATION The Parking Authority entered into a Disposition and Development Agreement and Agreement of Purchase and Escrow Instructions ("Original Purchase Agreement") with Diamond Development LLC ("Diamond") in January 2003, to acquire a 15.08-acre parcel located just northwest of the Plaza Bonita Shopping Center at Sweetwater Road and Plaza Bonita Road. In August 2003, the Parking Authority and Diamond entered into an Amended and Restated Disposition and Development Agreement and Agreement of Purchase and Sale and Escrow Instructions ("Agreement"), which was amended in October 2003, to provide for the purchase and sale of the subject parcel, and amended again in August 2004, authorizing Diamond to assign to the Costco Wholesale Corporation ("Costco") all of Diamond's rights, title, and interest to the subject parcel. Costco proposed the construction of a 150,354-square foot warehouse and sales area, including a tire sales/installation center, a food service/concession area, a fueling station, and over 700 surface parking spaces for the subject parcel, which created the need for a third amendment to the Agreement on January 10, 2006, providing for an extension of the Agreement's Closing Date to December 13, 2007. Costco now requests another extension of the Closing Date to December 13, 2008, to complete all the necessary federal, State, and �I entitlement and permit requirements prior to closing. _) 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. a 0 0 r\• y • Fourth Amendment to the Amended and Restated Disposition and Development Agreement and Agreement of Purchase and Sale and Escrow Instructions • Resolution A-200 (9/99) 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 27, 2007 Mr. Peter Clement Redevelopment Manager Costco Wholesale Corporation 500 North State College Blvd., Suite 1080 Orange, CA 92868 Dear Mr. Clement, On March 20, 2007, Resolution No. 2007-4 was passed and adopted by the Parking Authority of National City, authorizing execution of Fourth Amendment to the Amended and Restated Disposition and Development Agreement and Agreement of Purchase and Sale and Escrow Instructions with Costco Wholesale Corporation. We are enclosing for your records a certified copy of the above Resolution and a fully executed original amendment. Sincerely, a Michael R. Dal , CMC City Clerk Enclosures cc: Parking Authority ® Recycled Paper