Loading...
HomeMy WebLinkAbout2016 CON PA CarMax Auto Superstores - Option to Purchase - Sweetwater and Bonita Center Way - Amendment #1FIRST AMENDMENT TO OPTION AGREEMENT This FIRST AMENDMENT TO OPTION AGREEMENT (this "Amendment") is entered into as of May 3 , 2016, by and between THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY, a public body corporate and politic (the "Authority") and CARMAX AUTO SUPERSTORES CALIFORNIA, LLC, a Virginia limited liability company (the "Optionee"). RECITALS A. The Authority and the Optionee are parties to that certain Option Agreement (CarMax, National City, California) dated as of August 18, 2015 (the "Original Agreement"), relating to certain real property in National City, California (the "Property"). B. Optionee has been in the process of reviewing the feasibility of the Property for its intended use. C. The parties desire to amend the Original Agreement as hereinafter provided to extend the Optionee's Feasibility Period. D. Capitalized terms not otherwise defined in this Amendment shall have the meanings set forth in the Original Agreement. The Original Agreement, as modified by this Amendment, shall be referred to herein as the "Agreement." NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Extension of Time. (a) Feasibility Period. Section 7(a) of the Agreement is hereby amended by deleting the first sentence thereof and inserting the following in lieu thereof: "Commencing on the Effective Date, the Optionee shall have until August 15, 2016 in which to conduct the Due Diligence Studies." (b) Delegation to City Manager or Designee. Section 7(g) of the Agreement is hereby amended by deleting the third sentence thereof and inserting the following in lieu thereof: "The City Manager, or designee, shall have the authority to approve modifications to any and all deadlines or timeframes for performance referenced in the Option Agreement, including without limitation, any of the timeframes set forth in this Section 7 and/or the Schedule of Performance, on behalf of the Authority." 2. General. Except as expressly amended hereby, the terms and conditions of the Original Agreement shall remain unmodified and in full force and effect. This Amendment may be executed in counterparts, all of which evidence only one agreement, binding on all parties, even though they are not signatories to the same counterpart. If any term, covenant or condition of this Amendment or its application to any person or circumstances shall be held to be invalid or -1- unenforceable, the remainder of this Amendment and the application of such term or provision to other persons or circumstances shall not be affected, and each term hereof shall be valid and enforceable to the fullest extent permitted by law. The terms of this Amendment are binding upon and shall inure to the benefit of the parties and their respective legal representatives, successors and permitted assigns. This Amendment shall be governed by the laws of the State of California. IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written. AUTHORITY: PARKING AUTHORITY OF THE CITY OF NATIONAL CITY B Ron Morrison, Chairman Approved as to Form; By: Clailva Legal Counsel of the City of Na OPTIONEE: Parking Authority al City CARMAX AUTO SUPERSTORES CALIFORNIA, LLC, a Virginia limited liability company By: K. Doug oyers, Vice President itj1/4 -2- RESOLUTION NO. 2016 — RESOLUTION OF THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE THE FIRST AMENDMENT TO THE OPTION AGREEMENT WITH CARMAX AUTO SUPERSTORES CALIFORNIA, LLC, A VIRGINIA LIMITED LIABILITY COMPANY EXTENDING THE FEASIBILITY PERIOD THROUGH AUGUST 15, 2016, AND AUTHORIZING THE CITY MANAGER OR DESIGNEE TO MODIFY DEADLINES OR TIMEFRAMES FOR PERFORMANCE CONTAINED IN THE OPTION AGREEMENT WHEREAS, the Parking Authority and CarMax are parties to an Option Agreement dated August 18, 2015; and WHEREAS, CarMax has been in the process of reviewing the feasibility of the property for its intended use; and WHEREAS, the current feasibility period is set to expire on May 14, 2016; and WHEREAS, CarMax desires to enter into a First Amendment the Option Agreement to extend the feasibility period through August 15, 2016 to allow CarMax to finish their due diligence on the property; and WHEREAS, the First Amendment would also delegate to the City Manager or Designee the authority to approve modifications to any and all deadlines or timeframes for performance referenced in the Option Agreement. NOW, THEREFORE, BE IT RESOLVED, that the Parking Authority of the City of National City hereby authorizes the Chairman to execute the First Amendment to the Option Agreement with CarMax Auto Superstores California, LLC, a Virginia limited liability company, extending the Feasibility Period through August 15, 2016. BE IT FURTHER RESOLVED the City Council hereby authorizes the City Manager or designee to modify deadlines or timeframes for performance contained in the Option Agreement. PASSED and ADOPTED this 3rd day of May, 2016. ATTEST: Leslie Deese, Secretary Morrison, Chairman PROVED S TO FORM: dia Ga t itua Legal C. un el Passed and adopted by the Parking Authority of the City of National City, California, on May 3, 2016 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. 2016-1 of the Parking Authority of the City of National City, California, passed and adopted on May 3, 2016. Secretary, Parking Authority By: Deputy CITY OF NATIONAL CITY, CALIFORNIA PARKING AUTHORITY AGENDA STATEMENT '- O6-3-‘0 MEETING DATE: May 3, 2016 AGENDA ITEM NO1 ITEM TITLE: Resolution of the Parking Authority of the City of National City authorizing the Chairman to execute the First Amendment to the Option Agreement with CarMax Auto Superstores California, LLC, a Virginia limited liability company, extending the Feasibility Period through August 15, 2016, and authorizing the City Manager or designee the authority to approve modifications to any and all deadlines or timeframes for performance referenced in the Option Agreement. PREPARED BY: Gregory Rose, Property Agent PHONE: (619) 336-4266 EXPLANATION: Housing, Grants, & Asset DEPARTMENT: M dgeynent APPROVED BY The Parking Authority and CarMax are parties to an option agreement dated as of August 18, 2015. CarMax has been in the process of reviewing the feasibility of the property for its intended use. The current feasibility period is set to expire on May 14, 2016. CarMax desires to amend the original agreement in order to provide an extension to the feasibility period thru August 15, 2016 to allow CarMax to finish their due diligence on the property. The amendment would also delegate to the City Manager or Designee the authority to approve modifications to any and all deadlines or timeframes for performance referenced in the Option Agreement. FINANCIAL STATEMENT: ACCOUNT NO, N/A APPROVED: APPROVED: Finance MIS The Parking Authority will receive no less than $3,500,000 and use part of the proceeds to purchase an open space easement encumbering the subject parcel from the County of San Diego for $3,000,000. ENVIRONMENTAL REVIEW: This action is not considered a project as defined by the California Environmental Quality Act (CEQA), and is therefore not subject to CEQA. The Optionee may exercise the option to purchase the property only upon the City certifying com liance with CEQA. ORDINANCE: INTRODUCTION: 1 FINAL ADOPTION: r STAFF RECOMMENDATION: Adoption of the Resolution BOARD / COMMISSION RECOMMENDATION: Not Applicable ATTACHMENTS: Attachment No. 1 First Amendment to the Option Agreement FtEs0Lu-%%0‘.1 No• aorta Attachment #1 FIRST AMENDMENT TO OPTION AGREEMENT This FIRST AMENDMENT TO OPTION AGREEMENT (this "Amendment") is entered into as of , 2016, by and between THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY, a public body corporate and politic (the "Authority") and CARMAX AUTO SUPERSTORES CALIFORNIA, LLC, a Virginia limited liability company (the "Optionee"). RECITALS A. The Authority and the Optionee are parties to that certain Option Agreement (CarMax, National City, California) dated as of August 18, 2015 (the "Original Agreement"), relating to certain real property in National City, California (the "Property"). B. Optionee has been in the process of reviewing the feasibility of the Property for its intended use. C. The parties desire to amend the Original Agreement as hereinafter provided to extend the Optionee's Feasibility Period. D. Capitalized terms not otherwise defined in this Amendment shall have the meanings set forth in the Original Agreement. The Original Agreement, as modified by this Amendment, shall be referred to herein as the "Agreement." NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Extension of Time. (a) Feasibility Period. Section 7(a) of the Agreement is hereby amended by deleting the first sentence thereof and inserting the following in lieu thereof: "Commencing on the Effective Date, the Optionee shall have until August 15, 2016 in which to conduct the Due Diligence Studies." (b) Delegation to City Manager or Designee. Section 7(g) of the Agreement is hereby amended by deleting the third sentence thereof and inserting the following in lieu thereof: "The City Manager, or designee, shall have the authority to approve modifications to any and all deadlines or timeframes for performance referenced in the Option Agreement, including without limitation, any of the timeframes set forth in this Section 7 and/or the Schedule of Performance, on behalf of the Authority." 2. General. Except as expressly amended hereby, the terms and conditions of the Original Agreement shall remain unmodified and in full force and effect. This Amendment may be executed in counterparts, all of which evidence only one agreement, binding on all parties, even though they are not signatories to the same counterpart. If any term, covenant or condition of this Amendment or its application to any person or circumstances shall be held to be invalid or -1- Attachment #1 unenforceable, the remainder of this Amendment and the application of such term or provision to other persons or circumstances shall not be affected, and each term hereof shall be valid and enforceable to the fullest extent permitted by law. The terms of this Amendment are binding upon and shall inure to the benefit of the parties and their respective legal representatives, successors and permitted assigns. This Amendment shall be governed by the laws of the State of California. IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written. AUTHORITY: PARKING AUTHORITY OF THE CITY OF NATIONAL CITY By: Ron Morrison, Chairman Approved as to Form: By: Claudia Silva Legal Counsel for the Parking Authority of the City of National City OPTIONEE: CARMAX AUTO SUPERSTORES CALIFORNIA, LLC, a Virginia limited liability company By: K. Douglass Moyers, Vice President -2- RESOLUTION NO. 2016 — RESOLUTION OF THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE THE FIRST AMENDMENT TO THE OPTION AGREEMENT WITH CARMAX AUTO SUPERSTORES CALIFORNIA, LLC, A VIRGINIA LIMITED LIABILITY COMPANY EXTENDING THE FEASIBILITY PERIOD THROUGH AUGUST 15, 2016, AND AUTHORIZING THE CITY MANAGER OR DESIGNEE TO MODIFY DEADLINES OR TIMEFRAMES FOR PERFORMANCE CONTAINED IN THE OPTION AGREEMENT WHEREAS, the Parking Authority and CarMax are parties to an Option Agreement dated August 18, 2015; and WHEREAS, CarMax has been in the process of reviewing the feasibility of the property for its intended use; and WHEREAS, the current feasibility period is set to expire on May 14, 2016; and WHEREAS, CarMax desires to enter into a First Amendment the Option Agreement to extend the feasibility period through August 15, 2016 to allow CarMax to finish their due diligence on the property; and WHEREAS, the First Amendment would also delegate to the City Manager or Designee the authority to approve modifications to any and all deadlines or timeframes for performance referenced in the Option Agreement. NOW, THEREFORE, BE IT RESOLVED, that the Parking Authority of the City of National City hereby authorizes the Chairman to execute the First Amendment to the Option Agreement with CarMax Auto Superstores California, LLC, a Virginia limited liability company, extending the Feasibility Period through August 15, 2016. BE IT FURTHER RESOLVED the City Council hereby authorizes the City Manager or designee to modify deadlines or timeframes for performance contained in the Option Agreement. PASSED and ADOPTED this 3rd day of May, 2016. 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 Blvd., National City, California 91950-4397 619-336-4228 phone / 619-336-4229 fax Michael R. Dalla, CMC - City Clerk May 4, 2016 Mr. Matt Lamishaw Kennerly, Lamishaw & Rossi 707 Wilshire Blvd., Suite 1400 Los Angeles, CA 90017 Dear Mr. Lamishaw, On May 3rd, 2016, Resolution No. 2016-1 was passed and adopted by the Parking Authority of the City of National City, authorizing execution of Amendment #1 to an Option Agreement with CarMax Auto Superstores California, LLC. We are enclosing for your records a certified copy of the above Resolution and a fully executed original Amendment. Michael R. Dalla, CMC City Clerk Enclosures