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HomeMy WebLinkAbout2016 CON PA County of San Diego - Option to Purchase - Sweetwater Road and Bonita Center Road - Amendment #10TENTH AMENDMENT TO OPTION TO PURCHASE AGREEMENT This Tenth Amendment to Option to Purchase Agreement (Tenth Amendment) is made as of December 6, 2016, 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-acreparcel ofland at the southwest comer 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-acreparcel (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, theparties 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 ofthe 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 ofthe Option Agreement be extended for an additional year. Therefore, on December 8, 2009, theparties 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, on January 1, 2001, 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 ofthe 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. 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. 16. 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. 17. 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. 18. Optionee was unable to meet the December 31, 2015 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 28, 2015, the parties executed the Ninth Amendment, which extended the deadline for close of escrow and the term of the Option Agreement to December 31, 2016. 19. Optionee is unable to meet the December 31, 2016 deadline and requests that the deadline for close of escrow and the term of the Option Agreement be extended for an additional year. Between County of San Diego and 2 Tenth Amendment to Option to Putchase Parking Authority of the City of National City Agreement (December 6, 2016) ♦ AGREEMENT Now, therefore, the parties agree as follows: 1. Optionee shall pay County $1.00 as consideration for this Tenth Amendment. The payment shall be made as specified in paragraph 3B of the Option Agreement. Paragraph 2 of the Option Agreement is amended to read as follows: 2. The term ("Tenn") of this Option shall be from the Effective Date through December 31, 2017. 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, 2017, 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 Tenth Amendment effective as of the date first written above. OPTIONEE: PARKING AUTHORITY OF THE CITF NATIONAL CITY By: MORRISOl1; �'hainnan Parking Authority of the City of National City COUNTY OF SAN DIEGO By: MARMEDVED, P.E., CEM, Director Department of General Services Between County of San Diego and Parking Authority of the City of National City LESLIE DEESE, Secretary Parking Authority of the City of National City Approved as to form and legality: By: age2AL George . Eiser, III Interim City Attorney Approved as to form and legality: By: KRISTEN LAYCHU Senior Deputy County Counsel Tenth Amendment to Option to Purchase Agreement (December 6. 2016) RESOLUTION NO. 2016 — 2 RESOLUTION OF THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE THE TENTH 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 Tenth Amendment to the Option Agreement extends the term of the Option Agreement for one year, to December 31, 2017, 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 Tenth 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, 2017, and in consideration for the amendment, the Parking Authority agrees to pay $1.00 to the County of San Diego. The Tenth Amendment is on file in the office of the City Clerk. PASSED and ADOPTED this 6th day of December, 2 Ron Morrison, hairman ATTEST: Leslie Deese, Secretary APPROVED AS TO FORM: George Eiser Interim Legal Counsel Passed and adopted by the Parking Authority of the City of National City, California, on December 6, 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. 2016-2 of the Parking Authority of the City of National City, California, passed and adopted on December 6, 2016. Secretary, Parking Authority By: Deputy CITY OF NATIONAL CITY, CALIFORNIA PARKING AUTHORITY AGENDA STATEMENT tia6 -3 -I MEETING DATE: December 6, 2016 AGENDA ITEM NO. 1 ITEM TITLE: Resolution of the Parking Authority of the City of National City authorizing the Chairman to execute the Tenth 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 Housing & Economic Development Mgr. PHONE: 619 336-4391 DEPARTMENT: APPROVED B Housing & Economic D velonment Y. 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 nine times since 2007 each extending the Option Agreement for another year. The Tenth Amendment to the Option to Purchase Agreement would extend the term of the Option Agreement to December 31, 2017. The County Board of Supervisors previously authorized one additional one (1) year extension through December 31, 2017. 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: Tenth Amendment to the Option to Purchase Agreement RE50\A-m01l ND• rd0\6 Attachment No. 1 TENTH AMENDMENT TO OPTION TO PURCHASE AGREEMENT This Tenth Amendment to Option to Purchase Agreement (Tenth Amendment) is made as of , 2016, 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. 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. 16. 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. 17. 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. 18. Optionee was unable to meet the December 31, 2015 deadline and requested that the deadline for the close of escrow and the term of the Option Agreement be extended for an additional year. Therefore, on December 28, 2015, the partied executed the Ninth Amendment, which extended the deadline for close of escrow and the term of the Option Agreement to December 31, 2016. 19. Optionee is unable to meet the December 31, 2016 deadline and requests that the deadline for close of escrow and the term of the Option Agreement be extended for an additional year. 2 Attachment No. 1 AGREEMENT Now, therefore, the parties agree as follows: 1. Optionee shall pay County $1.00 as consideration for this Tenth 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: "2. The term ("Term") of this Option shall be from the Effective Date through December 31, 2017." 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, 2017, 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 Tenth 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 George Eiser Interim City Attorney 3 Attachment No. 1 COUNTY OF SAN DIEGO By: Marko Medved, P.E., CEM, Director Department of General Services Approved as to form and legality County Counsel By: KRISTEN LAYCHUS Deputy County Counsel 4 RESOLUTION NO. 2016 — RESOLUTION OF THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE THE TENTH 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 Tenth Amendment to the Option Agreement extends the term of the Option Agreement for one year, to December 31, 2017, 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 Tenth 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, 2017, and in consideration for the amendment, the Parking Authority agrees to pay $1.00 to the County of San Diego. The Tenth Amendment is on file in the office of the City Clerk. PASSED and ADOPTED this 6th day of December, 2016. ATTEST: Leslie Deese, Secretary APPROVED AS TO FORM: George Eiser Interim Legal Counsel Ron Morrison, Chairman RESOLUTION NO. 2016 — 2 RESOLUTION OF THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE THE TENTH 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 SWEETVVATER 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 Tenth Amendment to the Option Agreement extends the term of the Option Agreement for one year, to December 31, 2017, 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 Tenth 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, 2017, and in consideration for the amendment, the Parking Authority agrees to pay $1.00 to the County of San Diego. The Tenth Amendment is on file in the office of the City Clerk. PASSED and ADOPTED this 6th day of December, 21 6. ATTEST: Leslie Deese, Secretary APPROVED AS TO FORM: George Eiser Interim Legal Counsel Ron Morrison, hairman Passed and adopted by the Parking Authority of the City of National City, California, on December 6, 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 LESLIE DEESE Secretary, Parking Authority By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2016-2 of the Parking Authority of the City of National City, California, passed and adopted on December 6, 2016. By: Secretary, Parking Authority Deputy CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950-4397 619-336-4228 Michael R. Dalla, CMC - City Clerk COUNTY OF SAN DIEGO Tenth Amendment to the Option to Purchase Agreement Sweetwater Road and Bonita Center Road Greg Rose (Housing & Economic Development) Forwarded Original Copy of Fully Executed Agreement to the County of San Diego.