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HomeMy WebLinkAbout2007 CON CDC Marina Gateway / Sycuan - 8th Amendment DDAEIGIITII AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT THIS EIGHTH AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT (this "Amendment") is entered into as of September 18, 2007, by and between the COMMUNITY DEVELOPMENT COMMISSION OF TIIE CITY OF NATIONAL CITY, a public body, corporate and politic (the "CDC") and MARINA GATEWAY DEVELOPMENT COMPANY, LLC, a California limited liability company (the "Developer") (CDC and Developer are sometimes referred to herein as the "Parties") and amends that certain Disposition and Development Agreement dated May 18, 2004, previously entered into by the Parties (the "Original DDA") as previously amended by that certain First Amendment to Disposition and Development Agreement dated February, 2005 (the "First Amendment"), that certain Second Amendment to Disposition and Development Agreement dated February 2006 (the "Second Amendment"), that certain Third Amendment to Disposition and Development Agreement dated June 29, 2006 (the "Third Amendment"), that certain Fourth Amendment to Disposition and Development Agreement dated (erroneously) March 31, 2007 (the "Fourth Amendment"), that certain Fifth Amendment to Disposition and Development Agreement dated March 31, 2007 (the "Fifth Amendment"), that certain Sixth Amendment to Disposition and Development Agreement dated June 19, 2007 (the "Sixth Amendment"), and that certain Seventh Amendment to Disposition and Development Agreement dated July 26, 2007 (the "Seventh Amendment"), (collectively, the Original DDA, First Amendment, Second Amendment, 'Third Amendment, Fourth Amendment, Fifth Amendment, Sixth Arnendment, and Seventh Amendment are referred to herein as the "DDA"), with reference to the following: RECITALS A. On May 18, 2004, the CDC and the Developer entered into a Disposition and Development Agreement (the "DDA"), with the intention that the CDC would convey to the Developer an approximately 6.32 acre portion of the National City Redevelopment Project, located at the southeast portion of Bay Marina Drive and Harrison Avenue, in order for said property to be redeveloped. B. The Parties have subsequently determined that it would be in their best interests to convey a portion of the 6.32 acres, and for the CDC to retain ownership of the remaining portion of the 6.32 acres, while granting the Developer an easement over the property . retained by the CDC. C. The Parties desire to amend the DDA to reflect the above facts. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree to amend the DDA as follows: 1. Section 1 of the Recitals is amended to read as follows: 1. In furtherance of the objectives of the California Community Redevelopment Law, the CDC desires to redevelop a certain approximately 6.32 acre portion of the National City Redevelopment Project (the "Redevelopment Project') located at the southeast corner of Bay Marina Drive and Harrison Avenue (the "Site", more fully described below) in the C.'ity of National City (the "City"). The CDC currently owns the Site, which was previously developed with urban uses. In entering into this Agreement, the Parties desire to set forth their respective rights and duties with respect to the following real property: a. The "Redevelopment Site ", sometimes herein referred to as the "Site ", as described in the attached Exhibit "A", and as shown on the attached Exhibit "A-1 ", which are incorporated herein by reference. b. The "Conveyed Property ". as described in the attached Exhibit "B ", and as shown on the attached Exhibit "B-1 ", which are incorporated herein by reference. c. The "Easement ", as described in the attached Exhibit "C", and as shown in the attached Exhibit "C-1 ", which are incorporated herein by reference. 2. Section 6 of the Recitals is amended to read as follows: 6. The CDC's acquisition of the Site and disposition of the Conveyed Property to the Developer, and the Developer's acquisition of the Conveyed Property and construction and completion of the Improvements pursuant to the terms of this Agreement, are in the vital and best interest of the City and the health, safety, morals and welfare of its residents, and in accord with the public purposes and provisions of applicable state and local laws and requirements under which the redevelopment of the Redevelopment Project has been undertaken. 3. The definition of "Closing" on page 3 of the Agreement is amended to read as follows: "Closing" means the Close of Escrow for the Conveyance of the Conveyed Property from the CDC to the Developer, as set forth in Section 202 hereof.' 4. The definition of "Conveyance" on page 3 of the Agreement is amended to read as follows: "Conveyance" means the conveyance of the Conveyed Property by the CDC 10 the Developer on the Closing Date. 2 Eighth Amendment to DDA City of National City/ Marina Gateway 5. The definition of "Grant Deed" on page 4 of the Agreement is amended to read as follows: "Grant Deed" means the grant deed fur the conveyance of the Conveyed Property from the CDC to the Developer, in the form of Attachment No. 3 hereto, which is incorporated herein by reference. (i. The definition of "Conveyed Propertyis added to Section 100 of the Agreement, to read as follows: "Conveyed Property" means the property described in the attached Exhibit "B ", and shown on the attached Exhibit "B-1 ", which property shall be conveyed by the CDC to the Developer on the Closing Date. 7. The definition of "Purchase Price" is amended in Section 100 of the Agreement, to read as follows: "Purchase Price" means the price to be paid by the Developer to the CDC in consideration for the Conveyance of fee title to the Conveyed Property, as set forth in Section 201 hereof. 8. The definition of "Easement" is added to Section 100 of the Agreement, to read as follows: "Easement" means an easement over CDC -owned property. Said Easement is described in the attached Exhibit "C" and shown on the attached Exhibit "C-1 ", which the CDC agrees to grant to the Developer in order to allow the Developer to comply with its Coastal Development Permit and Planned Development Permit, and with the Harbor District Special Area Plan, and to allow the Developer to exclusively use all development rights and entitlements upon the terms set forth in this Agreement. Section 201.1 of the Agreement is amended to read as follows: 201.1 The CDC agrees to sell the Conveyed Property to the Developer in accordance with and subject to all of the terms of this Agreement, for the all-inclusive purchase price of $10 per gross square foot, for a total purchase price of $ 2,241 320 (the 'P chase Price"). 10. Section 201.2 of the Agreement is amended to read as follows: Title to the Conveyed Property shall be deeded to Developer. Developer may create a new tentative map for the Site, by lot line adjustments, to delineate "pads" for the hotel, restaurant and commercial building (the 3 Eighth Amendment to DDA City of National City' Marina (iatcway "Parcelization "). CDC shall reasonably cooperate with and assist the Developer to accomplish the Parcelization within 9 months of the Closing Date. 11. Section 201.3 is added to the Agreement to read as follows: 201.3 Within ten (10) business days of the Close of Escrow, the CDC shall grant to the Developer the Easement that is defined in Section 100 herein. The Grant of Easement shall be in the form of Exhibit "D ", incorporated herein by reference. Said transaction shall occur outside of Escrow. 12. Section 202.1 of the Agreement is amended to read as follows: 202.1 Costs of Escrow. CDC shall pay the premium for a standard coverage Title Policy as set forth in Section 204 hereof and the documentary transfer taxes, if any, due with respect to the conveyance of the Conveyed Property. The Developer and CDC shall each pay one-half of all other usual fees, charges, and costs that arise from Escrow (the "Escrow Costs"). 13. The first sentence of Section 202.6 of the Agreement is amended to read as follows: 202.6 Closing Procedure. Escrow Agent shall close Escrow for the Conveyed Property as follows: 14. Section 203 (b) of the Agreement is amended to read as follows: (b) The lien of any non -delinquent property taxes and assessments (to be prorated at close of Escrow). Developer/STDC shall have sixty (60) days from the date of its latest receipt of the Report, the Documents and the Survey to give written notice to CDC and Escrow Holder of Developer's/STDC's approval or disapproval of any of such Exceptions. If Developer/STDC notifies CDC of its disapproval of any Exceptions in the Report, CDC shall have the right, but not the obligation, to remove any disapproved Exceptions within thirty (30) days after receiving written notice of Developer's/STDC's disapproval or provide assurances satisfactory to Developer/STDC in Developer's/STDC's sole and absolute discretion that such Exception(s) will be removed on or before the Closing. If CDC cannot or does not elect to remove any of the disapproved Exceptions within that period, Developer/STDC shall have thirty (30) days after the expiration of such thirty (30) day period to either give the CDC written notice that Developer/STDC elects to proceed with the purchase of the Conveyed Property subject to the disapproved Exceptions or to give the CDC written notice that the Developer/STDC elects to terminate this Agreement. The Exceptions to title approved by Developer/STDC as provided herein shall hereinafter be referred to as the "Condition of Title. " Developer/SIDC shall have the right to approve or 4 Eighth Amendment to DDA City of National City/ Marina Gateway disapprove in its sole and absolute discretion any further Exceptions reported by the Title Company after Developer/ST DC has approved the Condition of Title for the Site (which are not created by Developer/STDC). CDC shall not voluntarily create any new exceptions to title following the date of this Agreement, without Developer's/STDC:'s consent, said consent not to he unreasonably withheld. 15. Section 204 of the Agreement is amended to read as follows: 204. Title Insurance. Concurrently with recordation of the Grant Deed conveying title to the Conveyed Property, there shall be issued to Developer ALTA policies of title. insurance (the "Title Policies'), together with such endorsements as are reasonably requested by the Developer, issued by the Title Company insuring that the title to the Conveyed Property is vested in Developer in the condition required by Section 203 of this Agreement. The Title Company shall provide the CDC with a copy of the Title Policies. The Title Policies shall be for the amount of the Purchase Price. The CDC agrees to remove on or before the Closing any deeds of'trust or other monetary liens against the Conveyed Property. The shared Escrow Costs shall include the cost of any surveys necessary to issue ALTA Extended Coverage Title Insurance Policies and that portion of the premium for the Title Policies equal to the added cost ofALTA Extended Coverage above the cost ofALTA Standard Coverage Owner's Policies of Title Insurance in the amount of the Purchase Price. 16. The first sentence of Section 205.1 of the Agreement is amended to read as follows: 205.1 CDC's Conditions of Closing. CDC's obligation to proceed with the Closing of the sale of the Conveyed Property is subject to the fulfillment of waiver by CDC of each and all of the conditions precedent (a) through (na), inclusive, described below ("CDC's Conditions Precedent"), which are solely fir the benefit of C/.)C, and which shall be fulfilled or waived by the time periods provided for herein: 17. The first sentence of Section 205.2 of the Agreement is amended to read as follows: 205.2 Developer's Conditions of Closing. Developer's obligation to proceed with the purchase of the Conveyed Property is subject to the fulfillment or waiver by Developer ofeach and all of the conditions precedent (a) through (1), inclusive, described below ("Developer's Conditions Precedent"), which are solely for the bene/it of Developer, and which shall be fidfilled or waived by the time periods provided for herein: 18. Section 205.2(d) of the Agreement is amended to read as follows: Title Policy. The Title Company shall, upon payment of Title Company's regularly scheduled premium, have agreed to provide to the Title Policies to 5 Eighth Amendment to DDA City of National City/ Marina Gateway Developer for the Conveyed Property upon the Close of Escrow, in accordance with Section 204 hereof. 19. Section 206.2(a) of the Agreement is amended to read as follows: (a) Authority. Developer is a limited liability company formed in and in good standing under the laws of the State of California, and is qualified to do business within the State of California. Developer has the full right, power and lawful authority to purchase and accept the conveyance of the Conveyed Property and undertake all obligations as provided herein and the execution, ,performance and delivery of this Agreement by Developer and any necessary third parties. 20. Section 208.5 of the Agreement is amended to read as follows: 208.5 Warranties as to Site. T o the extent authorized by contract or law, the CDC shall assign to the Developer all warranties and guaranties with respect to the environmental condition of the Conveyed Property, if any, that the CDC may have received from prior owners of the Site. 21. Section 209 of the Agreement is amended to read as follows: 209. "As Is" Sale. DEVELOPER ACKNOWLEDGES THAT SUBJECT TO 7HE EXPRESS REPRESENTATIONS, WARRANTIES AND COVENANTS OF CDC UNDER THIS AGREEMENT, DEVELOPER IS PURCHASING THE CONVEYED PROPERTY "AS IS" IN RELIANCE SOLELY ON: (A) DEVELOPER'S OWN INSPECTIONS OF TIIE SITE; (B) DE VELOPER 'S INDEPENDENT' VERIFICATION OF THE TRUTH UTH OF ANY DOCUMENTS MADE AVAILABLE TO DEVELOPER; ANI) (C) THE OPINIONS AND AI)VICE CONCERNING THE SITE OF CONSULTANTS ENGAGED BY DEVELOPER. DEVELOPER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR TIIE REPRESENTATIONS, WARRANTIES AND COVENANTS OF CDC EXPRESSLY SET FORTH IN THIS AGREEMENT, CDC IS NO7' MAKING ANY OTHER WARRANTIES OR REPRESENTATIONS EXPRESS OR IMPLIED OF ANY KIND OR CHARACTER WITH RESPECT TO THE SITE, INCLUDING WITHOUT LIMITATION: (i) THE QUALITY NATURE, ADEQUACY, ANT) PHYSICAL CONDITION OF TIIE SITE„ (ii) THE QUALITY, NATURE, ADEQUACY, AND PHYSICAL CONDITION OF SOILS', GEOLOGY AND ANY GROUNDWATER RELATING TO TIIE SITE, (iii) THE EXISTENCE, QUALITY, NATURE, ADEQUACY AND PIYSICAL CONDITION OF UTILITIES' SERVING THE SITE, (iv) THE SITE'S USE, HABITABILITY, MERCHANTABILITY, OR FITNESS, SUITABILITY, VALUE OR Eighth Amendment to DDA City of National Cityi Marina Gateway ADEQUACY OF THE SITE FOR ANY PARTICULAR PURPOSE, (v) THE COMPLIANCE OF THE SITE WITH ANY APPLICABLE CODES, LAWS, REGULATIONS, STATUTES, ORDINANCES, COVENANTS, CONDITIONS AND RESTRICTIONS OF ANY GOVERNMENTAL OR QUASI -GOVERNMENTAL ENTITY OR OF ANY OTHER PERSON OR ENTITY, (vi) THE PRESENCE OF ANY HAZARDOUS MATERIALS ON. UNDER OR ABOUT THE SITE OR THE ADJOINING OR NEIGHBORING SITE (vii) THE CONDITION OF TITLE TO THE SITE, AND (viii) THE ECONOMICS OF THE OPERATION OF THE SITE AS A HOTEL OR ANY OTHER USE. DEVELOPER WARRANTS AND REPRESENTS THAT IT HAS NOT RELIED AND WILL NOT RELY ON, EITHER DIRECTLY OR INDIRECTLY, ANY WARRANTY OR REPRESENTATION OF CDC OR ITS AGENTS NOT EXPLICITLY SET FORTH IN THIS AGREEMENT. 22. Section 403 of the Agreement is amended to read as follows: 403. Maintenance and Regulatory Compliance Covenants. The Developer and STDC shall maintain the Redevelopment Site and all improvements thereon, including all landscaping and erosion control, in a commercially reasonable manner. The Developer agrees not to further excavate any portion of the Site except as is set forth on the Site Plan Drawings. As between the Developer and the CDC, the Developer shall he responsible for compliance with all orders and directives of any State, local, or federal agency pertaining to the Site, including, but not limited to, the California Department of Toxic Substance Control, the County of San Diego Department of Environmental Ilealth, and the Regional Water Quality Control Board. 23. Section 503 of the Agreement is amended to read as follows: 503. Termination by the Developer Prior to the Conveyance. In the event that prior to the Conveyance the Developer is not in default under this Agreement and (a) the CDC does not tender title to the Conveyed Property pursuant to the Grant Deeds in the manner and condition and by the date provided in this Agreement, or (b) one or more of the Developer's Conditions Precedent to the Closing is not fulfilled on or before the time set forth in the Schedule of Performance and such failure is not due to a default by the Developer, or (c) any default of the CDC prior to the Closing is not cured within the time set forth in Section 501 hereof after written demand by the Developer, or (d) the Developer timely disapproves the environmental condition of the Site pursuant to Section 208 hereof then this Agreement may, at the option of the Developer, be terminated by written Notice thereof to the CDC (the "Notice of Termination'). From the date of the written Notice of Termination of this Agreement by the Developer to the CDC and thereafter this Agreement shall be deemed terminated, and there shall be 7 Eighth Amendment to DDA City of National City/ Marina Gateway no further rights or obligations between the parties with respect to the Site by virtue of or with respect to this Agreement. 24. With the foregoing exceptions, each and every provision of the Disposition and Development Agreement datcd May 18, 2004, as amended, shall remain in full force and effect. 25. Each person executing this Amendment represents and warrants that they have the authority to bind the party for which they are signing. 26. All capitalized terms in this Amendment shall have the same meaning as set forth in the DDA unless otherwise defined herein. 27. This Amendment may be executed in one or more counterparts. Facsimile copies of this executed Amendment shall be treated the same as "wet ink" originals. IN WITNESS WHEREOF, the Parties have executed this Amendment to be effective as of the date first set forth above. ATTEST: APPROVED AS TO FORM: i� 7D George H.Eiser, III Legal Counsel CDC: COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public body, corporate air.} politic By: on Morrison, Chairman 8 Eighth Amendment to nnA City of National City/ Marina Gateway By: MRW oup, �ct Nevada corpora • , a rE'/�� �1 ; ember By: Its: ?f�-�'Stbc70T STDC: SYCUAN TRIBAL DEVELOPMENT CORPORATION, a Tribally chartered corporation By: Its: 9 Eighth Amendment to ODA City of National City/ Marina Gateway By: MRW Group, Inc., a Nevada corporation, Managing Member By: Its: STDC: SYCIJAN TRIBAL DEVELOPMENT CORPORATION, a Tribally chartered corporation By: Its: 9 APPRO DD BY LEGAL DRAIITMENT,„ Eighth Amendment to DDA City of National City/ Marino Gateway -r Amendment to ODA Exhibit A Iff15' 1472'16"C.1 rei 7 /17-0E: 44'05----, Rz47:5,73' EXIIII3IT A-1 wrz. ;45'011.: 40.31' 1r432WW If 9-F ;6' E-Ciftel 3 MARI/v. POD` tiV5OT t07. N7,9- 42 69.79, 's LJJLS MAP Ls NOT TO ScA.1,,E.: AND SHOULD BE USED AS AN INTtRPRIETATT.ON AID ONIY 1. 44, 8T11 Amendment to DDA Exhibit B 27: • ;-* :1 • 66, 7.1 .F.5" .• Niko, AT•t• ' '^. 81714 Amendment to DDA Exhibit C 4 r EXI-1113H C-1 ,-;;,..-- 11,t. ,5 t.,1'c OAY 4-'141,0e,'W ---.---,_ ; 40-31' et4A, . i ,, /1:N17'43'291 N-P --/- r, IN4 .' •3 \ i % 0 4 e)cr • .5,0* .7;0' -.5,1•E: , ',.,:•':, ' i -• J . 40 . 6 03 ' I 79,‘4, et, 3 1.7:81.34' N72'16101EAP. ' PARCEL 3 11.63' \.. .../ --- PARCEL ; • az20" R.-449.73' L:riS1.08' ?417* 43591V -- Par 16'0 rE PARCEL 2 6,••' ; PARCEL 4 IDES WO' ISNoT tiCALE; SUM ID BE USED AS ;1/41?1, INTERPRETAVON MI) ONLY 1 4 t RESOLUTION NO. 2007 — 225 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE AN EIGHTH AMENDMENT TO THE DISPOSITION AND DEVELOPMENT AGREEMENT WITH MARINA GATEWAY DEVELOPMENT COMPANY, LLC, AND TO EXECUTE A GRANT OF EASEMENT OVER CDC -OWNED LAND FOR THE BENEFIT OF MARINA GATEWAY DEVELOPMENT COMPANY, LLC, TO FACILITATE THE MARINA GATEWAY REDEVELOPMENT PROJECT WHEREAS, on May 18, 2004, the Community Development Commission of the City of National City ("CDC") and Marina Gateway Development Company, LLC ("Developer") entered into a Disposition and Development Agreement (the "DDA"), with the intention that the CDC would convey to the Developer an approximately 6.32 acre portion of the National City Redevelopment Project, located at the southeast portion of Bay Marina Drive and Harrison Avenue, in order for said property to be redeveloped; and WHEREAS, the Parties have subsequently determined that it would be in their best interests to convey a portion of the 6.32 acres (the "Conveyed Property"), and for the CDC to retain ownership of the remaining portion of the 6.32 acres, while granting the Developer an easement over the property retained by the CDC, in order to allow the Developer to comply with its Coastal Development Permit and Planned Development Permit, and with the Harbor District Special Area Plan; and WHEREAS, the Parties desire to amend the DDA to reflect the above facts. NOW, THEREFORE, BE IT RESOLVED, that the Community Development Commission of the City of National City hereby authorizes the Chairman to execute an Eighth Amendment to the Disposition and Development Agreement entered into on May 18, 2004, with Marina Gateway Development Company, LLC. BE IT FURTHER RESOLVED, that the Chairman is hereby authorized to execute a Grant of Easement over CDC -owned land for the benefit of Marina Gateway Development Company, LLC, to facilitate the Marine Gateway Redevelopment Project, provided that said Grant of Easement shall not be delivered to the Developer until close of escrow for the Conveyed Property. ATTEST: PASSED and ADOPTED this 18th day of Septem. -r - I07. 7�Z on Morrison, Chairmen APPROVED AS TO FORM: Q,,,� 'ston, Secretary George H. Eiser, III Legal Counsel Passed and adopted by the Community Development Commission of the City of National City, California, on September 18, 2007, by the following vote, to -wit: Ayes: Commissioners Morrison, Natividad, Parra, Ungab. Nays: None. Absent: Commissioner Zarate. Abstain: None. AUTHENTICATED BY: RON MORRISON Chairman, Community Development Commission Secretary, C evelopment Commission By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2007-225 of the Community Development Commission of the City of National City, Califomia, passed and adopted on September 18, 2007. Secretary, Community Development Commission By: Deputy caoon-3a City of National City, California COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT 13 MEETING DATE August 21, 2007 AGENDA ITEM NO. ITEM TITLE RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE AN EIGHTH AMENDMENT TO THE DISPOSITION AND DEVELOPMENT AGREEMENT WITH MARINA GATEWAY DEVELOPMENT COMPANY, LLC, AND TO EXECUTE A GRANT OF EASEMENT OVER CDC -OWNED LAND FOR THE BENEFIT OF MARINA GATEWAY DEVELOPMENT COMPANY, LLC, TO FACILITATE THE MARINA GATEWAY REDEVELOPMENT PROJECT PREPARED BY George H. Eiser, Ill 'j l DEPARTMENT City Attorney (Ext. 4221) EXPLANATION Please see attached memorandum. Environmental Review I 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 O 9 a • Proposed Resolution • Eighth Amendment to Disposition and Development Agreement • Grant of Easement A-200 (9/99) City of National City Office of the City Clerk 1243 National City Blvd. National City, CA 91950-4397 619-336-4228 619-336-4229 fax MARINA GATEWAY / SYCUAN 8TH Amendment to DDA Colby Young (CDC) has provided the contractor a fully executed original contract.