Loading...
HomeMy WebLinkAbout2015 CON PA County of San Diego - Option to Purchase - Sweetwater and Bonita Center Road - Amendment #9NINTH AMENDMENT TO OPTION TO PURCHASE AGREEMENT This Ninth Amendment to Option to Purchase Agreement (Ninth Amendment) is made as of e' Lt , 23 , 2015, by and between the COUNTY OF SAN DIEGO, a political subdivision of the State of California (County) and the PARKING AUTHORITY OF THE CITY OF NATIONAL CITY, a public body corporate and politic created pursuant to the Parking Law of 1949 (Optionee) with reference to the following facts: RECITALS 1. Optionee owns a 15.08-acre parcel of land at the southwest corner of Sweetwater Road and Bonita Center Road in National City, California, identified as County Assessor's Parcel Number 564-471-11. 2. In 1978 Optionee conveyed to County an easement for open space and park purposes over this 15.08-acre parcel (the Easement). 3. Optionee wishes to purchase the Easement from County. 4. On April 3, 2007, County and Optionee entered into an Option to Purchase Agreement (Option Agreement) setting forth the terms of an option whereby Optionee could purchase the Easement from County. 5. On December 13, 2007, Optionee exercised its option to purchase the Easement, and on March 12, 2008, Optionee and County opened escrow pursuant to the terms of the Option Agreement. The escrow was subsequently cancelled in 2011. 6. Optionee was unable to meet the 90-day deadline for closing escrow and requested that the date for close of escrow be extended to December 31, 2008. 7. On July 2, 2008, the parties executed the First Amendment, which extended the deadline for close of escrow and the term of the Option Agreement to December 31, 2008. 8. Optionee was unable to meet the December 31, 2008 deadline. Therefore, on October 14, 2008, the parties executed the Second Amendment, which extended the deadline for close of escrow and the term of the Option Agreement to December 31, 2009. 9. Optionee was unable to meet the December 31, 2009 deadline and requested that the deadline for close of escrow and the term of the Option Agreement be extended for an additional year. Therefore, the parties executed the Third Amendment, which extended the deadline for close of escrow and the term of the Option Agreement to December 31, 2010. 10. Optionee was unable to meet the December 31, 2010 deadline and requested that the deadline for close of escrow and the term of the Option Agreement be extended for an additional year. Therefore, the parties executed the Fourth Amendment, which extended the deadline for close of escrow and the term of the Option Agreement to December 31, 2011. 11. Optionee was unable to meet the December 31, 2011 deadline and requested that the deadline for close of escrow and the term of the Option Agreement be extended for an additional year. Therefore, on March 6, 2012, the parties executed the Fifth Amendment, which extended the deadline for close of escrow and the term of the Option Agreement to December 31, 2012. 12. Optionee was unable to meet the December 31, 2012 deadline and requested that the deadline for close of escrow and the term of the Option Agreement be extended for an additional year. Therefore, on November 1, 2013, the parties executed the Sixth Amendment, which extended the deadline for close of escrow and the term of the Option Agreement to December 31, 2013. 13. Optionee was unable to meet the December 31, 2013 deadline and requested that the deadline for close of escrow and the term of the Option Agreement be extended for an additional year. Therefore, on December 3, 2014, the parties executed the Seventh Amendment, which extended the deadline for close of escrow and the term of the Option Agreement to December 31, 2014. 14. Optionee was unable to meet the December 31, 2014 deadline and requested that the deadline for close of escrow and the term of the Option Agreement be extended for an additional year. Therefore, on April 21, 2015, the parties executed the Eighth Amendment, which extended the deadline for close of escrow and the term of the Option Agreement to December 31, 2015. 15. Optionee is unable to meet the December 31, 2015 deadline and requests that the deadline for close of escrow and the term of the Option Agreement be extended for an additional year. 16. On October 21, 2014, the Board of Optionee approved an Exclusive Negotiating Agreement ("ENA") between Optionee and CarMax Auto Superstores California, LLC ("CarMax") to allow Optionee and CarMax to negotiate the potential sale to CarMax of approximately 9.5 acres of the Property as defined in the Option Agreement. 17. On August 18, 2015, the Board of Optionee approved an Option Agreement ("CarMax Option") between Optionee and CarMax to grant CarMax the right to purchase at least 9.5 acres for not less than $3,500,000 and additional compensation for each square foot in excess of 9.5 acres of the Property. 18. Pursuant to Section 9 of the CarMax Option, a condition precedent to the close of escrow under the CarMax Option between Optionee and CarMax is Optionee's completion of the purchase of the Easement from the County. AGREEMENT Now, therefore, the parties agree as follows: 1. Optionee shall pay County $1.00 as consideration for this Ninth Amendment. The payment shall be made as specified in paragraph 3B of the Option Agreement. 2. Paragraph 2 of the Option Agreement is amended to read as follows: County of San Diego and 2 9th Amendment to Option to Parking Authority of the City of National City Purchase Agreement "2. The term ("Term") of this Option shall be from the Effective Date through December 31, 2016." 3. Paragraph 9C(2) of the Option Agreement is amended to read as follows: "9 C (2) Close of Escrow; Closing Date. Escrow shall close either on or before December 31, 2016, or five business days after Optionee's notice to County and escrow company requesting to close escrow, whichever is sooner, ("Close of Escrow" or "Closing Date"). The terms "Close of Escrow" and/or "Closing Date" shall mean the date the deeds conveying title to the Easement and title to the Walkway Area are recorded in the Office of the County Recorder of the County of San Diego. 4. All other terms and conditions of the Option Agreement remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Ninth Amendment effective as of the date first written above. OPTIONEE By: RON MORRISON, Chairman LESLIE DEESE, Secretary Parking Authority of the City of Parking Authority of the City of National National City City COUNTY OF SAN DIEGO By: APRIL F. HEINZE, �'., Director Ot Department of G-,> ral Services County of San Diego and Approved as to form City Attorney By Cla !�a��' aci : Sil a City Attorney Approved as to form and legality County Counsel By: SHIRI HOFFMAN Senior Deputy County Counsel 3 9th Amendment to Option to Parking Authority of the City of National City Purchase Agreement "2. The term ("Term") of this Option shall be from the Effective Date through December 31, 2016." 3. Paragraph 9C(2) of the Option Agreement is amended to read as follows: "9 C (2) Close of Escrow; Closing Date. Escrow shall close either on or before December 31, 2016, or five business days after Optionee's notice to County and escrow company requesting to close escrow, whichever is sooner, ("Close of Escrow" or "Closing Date"). The terms "Close of Escrow" and/or "Closing Date" shall mean the date the deeds conveying title to the Easement and title to the Walkway Area are recorded in the Office of the County Recorder of the County of San Diego. 4. All other terms and conditions of the Option Agreement remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Ninth Amendment effective as of the date first written above. OPTIONEE Bv: ix it 1 L ' — RON C)RRISON, Chairman LESLIE DEESE, Secretary Parking Authority of the City of Parking Authority of the City of National National City City Approved as to form City ' ttorney By_ Clat C'' acittla Sil ti City Attorney COUNTY OF SAN DIEGO Approved as to form and legality County Counsel By: By: APRIL F. HEINZE, P.E., Director SHIRI H"MAN Department of General Services Senior Deputy County Counsel County of San Diego and 3 9'1' Amendment to Option to Parking Authority of the City of National City Purchase Agreement RESOLUTION NO. 2015 — 4 RESOLUTION OF THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE THE NINTH AMENDMENT TO THE OPTION TO PURCHASE AGREEMENT WITH THE COUNTY OF SAN DIEGO FOR THE PURCHASE OF AN OPEN -SPACE EASEMENT ON A 15.08 ACRE PARCEL OF LAND AT THE SOUTHWEST CORNER OF SWEETWATER ROAD AND BONITA CENTER ROAD THAT EXTENDS THE TERM OF SAID OPTION FOR ONE YEAR AND PAYS THE COUNTY OF SAN DIEGO $1.00 AS CONSIDERATION FOR THE EXTENSION WHEREAS, on March 20, 2007, the Parking Authority of the City of National City ("Parking Authority") entered into an Option to Purchase Agreement ("Option Agreement") with the County of San Diego to purchase an open -space easement attached to the 15.08-acre parcel of land located at the southwest corner of Sweetwater Road and Bonita Center Road (Parcel No. 564-471-11) to develop a commercial project; and WHEREAS, the Option Agreement has been subsequently amended in 2008, 2009, 2010, 2011, 2012, 2013, 2014, and 2015 each extending the term of the Option Agreement for one year; and WHEREAS, the Ninth Amendment to the Option Agreement extends the term of the Option Agreement for one year, to December 31, 2016, and in consideration for the amendment, the Parking Authority agrees to pay $1.00 to the County of San Diego. NOW, THEREFORE, BE IT RESOLVED, that the Parking Authority of the City of National City hereby authorizes the Chairman to execute the Ninth Amendment to the Option to Purchase Agreement by and between the Parking Authority of the City of National City and the County of San Diego to extend the term of the Option Agreement for one year, to December 31, 2016, and in consideration for the amendment, the Parking Authority agrees to pay $1.00 to the County of San Diego. The Ninth Amendment is on file in the office of the City Clerk. ATTEST: PASSED and ADOPTED this 15th day of December, 2015. Leslie Deese, Secretary orrison, Chai ` an ROVED AS TO FORM: ua Silva Legal Co I Passed and adopted by the Parking Authority of the City of National City, California, on December 15, 2015 by the following vote, to -wit: Ayes: Boardmembers Cano, Mendivil, Morrison, Rios, Sotelo-Solis. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Chairman, Parking Authority Secretary, Parking Authority By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2015-4 of the Parking Authority of the City of National City, California, passed and adopted on December 15, 2015. Secretary, Parking Authority By: Deputy CITY OF NATIONAL CITY, CALIFORNIA PARKING AUTHORITY AGENDA STATEMENT MEETING DATE: December 15, 2015 AGENDA ITEM NO. 1 ITEM TITLE: Resolution of the Parking Authority of the City of National City authorizing the Chairman to execute the Ninth Amendment to the Option to Purchase Agreement with the County of San Diego for the purchase of an Open -Space Easement on a 15.08 acre parcel of land at the southwest corner of Sweetwater Road and Bonita Center Road that extends the term of said Option for one year and pays the County of San Diego $1.00 as consideration for the extension. PREPARED BY: Carlos Aguirre DEPARTMENT: Community Development Mgr. APPROVE PHONE: 619 336-4391 Ho g, Grants, & Asset .•-me t EXPLANATION: The Parking Authority entered into an Option to Purchase Agreement ("Option Agreement") with the County of San Diego on March 20, 2007 that provided the Parking Authority the option to purchase the current Open -Space Easement attached to a 15.08-acre parcel of land at the southwest corner of Sweetwater Road and Bonita Center Road to develop a commercial project. The Option Agreement has been amended eight times since 2007 each extending the Option Agreement for another year. The Ninth Amendment to the Option to Purchase Agreement would extend the term of the Option Agreement to December 31, 2016. The County Board of Supervisors previously authorized one additional one (1) year extension through December 31, 2016. The Parking Authority will request an additional one year extension from the County of San Diego through December 31, 2017 early next year. FINANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Adoption of the Resolution. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: Attachment No.1: Ninth Amendment to the Option to Purchase Agreement (\iosoc,wc\O No. a0\5•`i Attachment No. 1 NINTH AMENDMENT TO OPTION TO PURCHASE AGREEMENT This Ninth Amendment to Option to Purchase Agreement (Ninth Amendment) is made as of , 2015, by and between the COUNTY OF SAN DIEGO, a political subdivision of the State of California (County) and the PARKING AUTHORITY OF THE CITY OF NATIONAL CITY, a public body corporate and politic created pursuant to the Parking Law of 1949 (Optionee) with reference to the following facts: RECITALS 1. Optionee owns a 15.08-acre parcel of land at the southwest corner of Sweetwater Road and Bonita Center Road in National City, California, identified as County Assessor's Parcel Number 564-471-11. 2. In 1978 Optionee conveyed to County an easement for open space and park purposes over this 15.08-acre parcel (the Easement). 3. Optionee wishes to purchase the Easement from County. 4. On April 3, 2007, County and Optionee entered into an Option to Purchase Agreement (Option Agreement) setting forth the terms of an option whereby Optionee could purchase the Easement from County. 5. On December 13, 2007, Optionee exercised its option to purchase the Easement, and on March 12, 2008, Optionee and County opened escrow pursuant to the terms of the Option Agreement. The escrow was subsequently cancelled in 2011. 6. Optionee was unable to meet the 90-day deadline for closing escrow and requested that the date for close of escrow be extended to December 31, 2008. 7. On July 2, 2008, the parties executed the First Amendment, which extended the deadline for close of escrow and the term of the Option Agreement to December 31, 2008. 8. Optionee was unable to meet the December 31, 2008 deadline. Therefore, on October 14, 2008, the parties executed the Second Amendment, which extended the deadline for close of escrow and the term of the Option Agreement to December 31, 2009. 9. Optionee was unable to meet the December 31, 2009 deadline and requested that the deadline for close of escrow and the term of the Option Agreement be extended for an additional year. Therefore, the parties executed the Third Amendment, which extended the deadline for close of escrow and the term of the Option Agreement to December 31, 2010. 10. Optionee was unable to meet the December 31, 2010 deadline and requested that the deadline for close of escrow and the term of the Option Agreement be extended for an additional year. Therefore, the parties executed the Fourth Amendment, which extended the deadline for close of escrow and the term of the Option Agreement to December 31, 2011. 1 Attachment No. 1 11. Optionee was unable to meet the December 31, 2011 deadline and requested that the deadline for close of escrow and the term of the Option Agreement be extended for an additional year. Therefore, on March 6, 2012, the parties executed the Fifth Amendment, which extended the deadline for close of escrow and the term of the Option Agreement to December 31, 2012. 12. Optionee was unable to meet the December 31, 2012 deadline and requested that the deadline for close of escrow and the term of the Option Agreement be extended for an additional year. Therefore, on November 1, 2013, the parties executed the Sixth Amendment, which extended the deadline for close of escrow and the term of the Option Agreement to December 31, 2013. 13. Optionee was unable to meet the December 31, 2013 deadline and requested that the deadline for close of escrow and the term of the Option Agreement be extended for an additional year. Therefore, on December 3, 2014, the parties executed the Seventh Amendment, which extended the deadline for close of escrow and the term of the Option Agreement to December 31, 2014. 14. Optionee was unable to meet the December 31, 2014 deadline and requested that the deadline for close of escrow and the term of the Option Agreement be extended for an additional year. Therefore, on April 21, 2015, the parties executed the Eighth Amendment, which extended the deadline for close of escrow and the term of the Option Agreement to December 31, 2015. 15. Optionee is unable to meet the December 31, 2015 deadline and requests that the deadline for close of escrow and the term of the Option Agreement be extended for an additional year. 16. On October 21, 2014, the Board of Optionee approved an Exclusive Negotiating Agreement ("ENA") between Optionee and CarMax Auto Superstores California, LLC ("CarMax") to allow Optionee and CarMax to negotiate the potential sale to CarMax of approximately 9.5 acres of the Property as defined in the Option Agreement. 17. On August 18, 2015, the Board of Optionee approved an Option Agreement ("CarMax Option") between Optionee and CarMax to grant CarMax the right to purchase at least 9.5 acres for not less than $3,500,000 and additional compensation for each square foot in excess of 9.5 acres of the Property. 18. Pursuant to Section 9 of the CarMax Option, a condition precedent to the close of escrow under the CarMax Option between Optionee and CarMax is Optionee's completion of the purchase of the Easement from the County. AGREEMENT Now, therefore, the parties agree as follows: 1. Optionee shall pay County $1.00 as consideration for this Ninth Amendment. The payment shall be made as specified in paragraph 3B of the Option Agreement. 2 Attachment No. 1 2. Paragraph 2 of the Option Agreement is amended to read as follows: "2. The term ("Term") of this Option shall be from the Effective Date through December 31, 2016." 3. Paragraph 9C(2) of the Option Agreement is amended to read as follows: "9 C (2) Close of Escrow; Closing Date. Escrow shall close either on or before December 31, 2016, or five business days after Optionee's notice to County and escrow company requesting to close escrow, whichever is sooner, ("Close of Escrow" or "Closing Date"). The terms "Close of Escrow" and/or "Closing Date" shall mean the date the deeds conveying title to the Easement and title to the Walkway Area are recorded in the Office of the County Recorder of the County of San Diego. 4. All other terms and conditions of the Option Agreement remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Ninth Amendment effective as of the date first written above. OPTIONEE By: RON MORRISON, Chairman Parking Authority of the City of National City By: LESLIE DEESE, Secretary Parking Authority of the City of National City Approved as to form City Attorney By Claudia Gacitua Silva City Attorney COUNTY OF SAN DIEGO By: APRIL F. HEINZE, P.E., Director Department of General Services Approved as to form and legality County Counsel By: SHIRI HOFFMAN Senior Deputy County Counsel 3 RESOLUTION NO. 2015 — RESOLUTION OF THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE THE NINTH AMENDMENT TO THE OPTION TO PURCHASE AGREEMENT WITH THE COUNTY OF SAN DIEGO FOR THE PURCHASE OF AN OPEN -SPACE EASEMENT ON A 15.08 ACRE PARCEL OF LAND AT THE SOUTHWEST CORNER OF SWEETWATER ROAD AND BONITA CENTER ROAD THAT EXTENDS THE TERM OF SAID OPTION FOR ONE YEAR AND PAYS THE COUNTY OF SAN DIEGO $1.00 AS CONSIDERATION FOR THE EXTENSION WHEREAS, on March 20, 2007, the Parking Authority of the City of National City ("Parking Authority") entered into an Option to Purchase Agreement ("Option Agreement") with the County of San Diego to purchase an open -space easement attached to the 15.08-acre parcel of land located at the southwest corner of Sweetwater Road and Bonita Center Road (Parcel No. 564-471-11) to develop a commercial project; and WHEREAS, the Option Agreement has been subsequently amended in 2008, 2009, 2010, 2011, 2012, 2013, 2014, and 2015 each extending the term of the Option Agreement for one year; and WHEREAS, the Ninth Amendment to the Option Agreement extends the term of the Option Agreement for one year, to December 31, 2016, and in consideration for the amendment, the Parking Authority agrees to pay $1.00 to the County of San Diego. NOW, THEREFORE, BE IT RESOLVED, that the Parking Authority of the City of National City hereby authorizes the Chairman to execute the Ninth Amendment to the Option to Purchase Agreement by and between the Parking Authority of the City of National City and the County of San Diego to extend the term of the Option Agreement for one year, to December 31, 2016, and in consideration for the amendment, the Parking Authority agrees to pay $1.00 to the County of San Diego. The Ninth Amendment is on file in the office of the City Clerk. PASSED and ADOPTED this 15th day of December, 2015. Ron Morrison, Chairman ATTEST: APPROVED AS TO FORM: Leslie Deese, Secretary Claudia Gacitua Silva 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 December 17, 2015 April F. Heinze Director, Department of General Services County of San Diego Dear Ms. Heinze: On December 15', 2015, Resolution No. 2015-4 was passed and adopted by the Parking Authority of the City of National City, authorizing execution of a Ninth Amendment to the Option to Purchase Agreement with the County of San Diego for purchase of an open -space easement on a 15.08 acre parcel of land at the southwest corner of Sweetwater Road and Bonita Center Road. We are forwarding a certified copy of the above Resolution and three partially executed original agreements. Please return two fully executed original agreement to us for our files. Michael R. Dalla, CMC City Clerk Enclosures ® Recycled Paper