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HomeMy WebLinkAbout2019 CON PA CarMax Auto Superstores - Sweetwater and Plaza Bonita Center Way - Amendment #7SEVENTH AMENDMENT TO OPTION AGREEMENT This SEVENTH AMENDMENT TO OPTION AGREEMENT (this "Amendment") is entered into as of November 19, 2019, 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 Optionee are parties to that certain Option Agreement (CarMax, National City, California) dated as of August 18, 2015, as amended by that certain First Amendment to Option Agreement dated as of May 3, 2016, that certain Second Amendment to Option Agreement dated as of August 26, 2016, that certain Third Amendment to Option Agreement dated as of January 26, 2017, that certain Fourth Amendment to Option Agreement dated as of September 5, 2017, that certain Fifth Amendment to Option Agreement dated as of December 6, 2018 and that certain Sixth Amendment to Option Agreement dated as of February 19, 2019 (collectively, the "Original Agreement"), relating to certain real property in National City, California (the "Property"). B. Optionee has been in the process of obtaining all necessary Permits, Approvals, and the Tentative Parcel Map for its intended use. C. The parties desire to amend the Original Agreement as hereinafter provided to extend the Optionee's Permitting 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 Permitting Period. Section 8(a) of the Original Agreement is hereby amended by deleting the first sentence thereof and inserting the following in lieu thereof: "Optionee shall have until December 31, 2020 to obtain all necessary Permits, Approvals, and the Tentative Parcel Map." 2. Closing. Section 10 of the Original Agreement is hereby amended by deleting the first sentence thereof and inserting the following in lieu thereof: "Notwithstanding anything set forth in this Agreement to the contrary, Closing shall occur two (2) weeks after the expiration of the Permitting Period." 3. 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 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 HE CITY OF NATIONAL CITY By: A - jandra otelo- Approved as to Form: By: /ZA//'' i Ang ' . f : s-Jones olis, hairwoman Legal " s sel for the Parki _ - ority of the ity of National City OPTIONEE: CARMAX AUTO SUPERSTORES CALIFORNIA, LLC, a Virginia limited liability company By: K. Doug oyers, Vice President RESOLUTION NO. 2019 - 3 RESOLUTION OF THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRWOMAN TO EXECUTE THE SEVENTH AMENDMENT TO THE OPTION TO PURCHASE AGREEMENT BETWEEN THE CITY OF NATIONAL CITY AND CARMAX AUTO SUPERSTORES CALIFORNIA, LLC, A VIRGINIA LIMITED LIABILITY COMPANY, EXTENDING THE PERMITTING PERIOD FROM DECEMBER 4, 2019 TO DECEMBER 31, 2020, AND HAVING THE ESCROW CLOSING OCCUR TWO WEEKS AFTER THE EXPIRATION OF THE PERMITTING PERIOD WHEREAS, the Parking Authority of the City of National City (the "Authority") owns a 15.08-acre parcel located at the southwest corner of Sweetwater Road and Plaza Bonita Center Way (APN 564-471-11); and WHEREAS, the Authority entered into an Option to Purchase Agreement ("Original Agreement") with CarMax Auto Superstores California, LLC, ("CarMax") on August 18, 2015; and WHEREAS, CarMax intended to use part of the Property to build a CarMax Superstore ("Project"), provide for on -site mitigation, and create a remnant parcel to be used for future development by the Authority; and WHEREAS, the total purchase price in the Original Agreement was not to be less than $3,500,000 for 9.5 acres; and WHEREAS, on May 3, 2016, the Authority adopted Resolution No. 2016-1 entering into a First Amendment to the Option Agreement to extend the Feasibility Period through August 15, 2016, and WHEREAS, the Second Amendment to the Option Agreement was approved and executed in August 2016 to extend CarMax's Feasibility Period; and WHEREAS, on December 6, 2016, the Parking Authority adopted Resolution No. 2016-3 approving the Third Amendment to the Option Agreement amending the total purchase price to $1,500,000 for 7.7 acres, or $4.40 per square foot, contingent on a reduction of the sales price for the County of San Diego Open Space Easement, and allowing the size and dimension of the Property to be determined by CarMax based upon the total size needed for the CarMax Project; and WHEREAS, on September 5, 2017, the Parking Authority adopted Resolution No. 2017-2 approving the Fourth Amendment to the Option Agreement, which reduced the sales price to $1,500,000 for 7.63 acres, giving CarMax until September 14, 2018 to obtain all necessary permits, approvals, and the tentative parcel map, and CarMax would have the right to extend the Permitting Period by up to three (3) successive one (1) month periods, upon prior written notice to the Authority; and WHEREAS, on December 6, 2018, the City Manager executed the Fifth Amendment, as authorized by the Fourth Amendment, to extend the Permitting Period to February 25, 2019; and Resolution No. 2019 - 3 Page Two WHEREAS, the parties desire to enter into a Sixth Amendment to the Option Agreement to extend the Permitting Period from February 25, 2019 to December 4, 2019 with the close of escrow occurring two (2) weeks after the expiration of the Permitting Period, or December 28, 2019; and WHEREAS, the parties desire to enter into a Seventh Amendment to the Option Agreement to extend the Permitting Period from December 4, 2019 to December 31, 2020 with the close of escrow occurring two (2) weeks after the expiration of the Permitting Period, or January 14, 2021. NOW, THEREFORE, BE IT RESOLVED that the Parking Authority of the City of National City approves and authorizing the Chairwoman to execute a Seventh Amendment to the Option to Purchase Agreement between the Parking Authority of the City of National City and CarMax Auto Superstores California, LLC, a Virginia limited liability company, extending the permitting period from December 4, 2019 to December 31, 2020, and having the Escrow closing occur two weeks after the expiration of the permitting period or January 14, 2021. The Seventh Amendment to the Option Agreement is on file in the Office of the City Clerk. PASSED and ADOPTED this 19th day of Novemb- , 2019.l'PAv'A°:" Aral. `a/ Alejandra So elo-Solis, Chairwoman ATTEST: Brad aulston, - retary APPROVED AS TO FORM: i ngi ' T":r Jo -s Le%: Counsel Passed and adopted by the Parking Authority of the City of National City, California, on November 19, 2019 by the following vote, to -wit: Ayes: Boardmembers Cano, Morrison, Quintero, Rios, Sotelo-Solis. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: ALEJANDRA SOTELO-SOLIS By: Chairwoman, Parking Authority BRAD RAULSTON Secretary, Parking Authority Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2019-3 of the Parking Authority of the City of National City, California, passed and adopted on November 19, 2019 By: ary, Parking Authority Deputy CITY OF NATIONAL CITY, CALIFORNIA PARKING AUTHORITY AGENDA STATEMENT MEETING DATE: November 19, 2019 AGENDA ITEM NO. 1 ITEM TITLE: Resolution of the Parking Authority of the City of National City approving and authorizing the Chairwoman to execute a Seventh Amendment to the Option to Purchase Agreement between the Parking Authority and CarMax Auto Superstores California, LLC, a Virginia limited liability company, extending the permitting period from December 4, 2019 to December 31, 2020, and having the Escrow closing occur two weeks after the expiration of the permitting period. PREPARED BY: Gregory Rose, Property Agent PHONE: (619) 336-4266 DEPARTMENT: Housing Authority APPROVED BY: EXPLANATION: The Parking Authority of the City of National City ("Authority") owns a 15.08-acre parcel located at the southwest corner of Sweetwater Road and Plaza Bonita Center Way. The Authority entered into an Option to Purchase Agreement ("Original Agreement") with CarMax Auto Superstores California, LLC, ("CarMax") on August 18, 2015. CarMax intended to use part of the Property to build a CarMax Superstore, provide for on -site mitigation. CarMax is currently working with the Water Quality Control Board to obtain their approval, but it will probably take most of 2020 to get their approval. All other regulatory agency approvals have been obtained. The Seventh Amendment would extend the permitting period from December 4, 2019 until December 31, 2020 giving CarMax time to obtain all necessary Permits, Approvals, and the Tentative Parcel Map. Closing shall occur two (2) weeks after the expiration of the Permitting Period. FINANCIAL STATEMENT: ACCOUNT NO. N/A APPROVED: APPROVED: Finance MIS ENVIRONMENTAL REVIEW: A Seventh Amendment to the Option Agreement 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 propert only upon the City certifying compliance with CEQA. ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the Resolution. BOARD / COMMISSION RECOMMENDATION: Not Applicable ATTACHMENTS: 1: Seventh Amendment to the Option Agreement 2: Resolution PAS rasa/ 1 hQ . co/l- 3 Attachment No. 1 SEVENTH AMENDMENT TO OPTION AGREEMENT This SEVENTH AMENDMENT TO OPTION AGREEMENT (this "Amendment") is entered into as of November 19, 2019, 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 Optionee are parties to that certain Option Agreement (CarMax, National City, California) dated as of August 18, 2015, as amended by that certain First Amendment to Option Agreement dated as of May 3, 2016, that certain Second Amendment to Option Agreement dated as of August 26, 2016, that certain Third Amendment to Option Agreement dated as of January 26, 2017, that certain Fourth Amendment to Option Agreement dated as of September 5, 2017, that certain Fifth Amendment to Option Agreement dated as of December 6, 2018 and that certain Sixth Amendment to Option Agreement dated as of February 19, 2019 (co11ectively, the "Original Agreement"), relating to certain real property in National City, California (the "Property"). B. Optionee has been in the process of obtaining all necessary Permits, Approvals, and the Tentative Parcel Map for its intended use. C. The parties desire to amend the Original Agreement as hereinafter provided to extend the Optionee's Permitting 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 Permitting Period. Section 8(a) of the Original Agreement is hereby amended by deleting the first sentence thereof and inserting the following in lieu thereof: "Optionee shall have until December 31, 2020 to obtain all necessary Permits, Approvals, and the Tentative Parcel Map." 2. Closing. Section 10 of the Original Agreement is hereby amended by deleting the first sentence thereof and inserting the following in lieu thereof: "Notwithstanding anything set forth in this Agreement to the contrary, Closing shall occur two (2) weeks after the expiration of the Permitting Period." 3. 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 Attachment No. 1 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 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: Alejandro. Sotelo-Solis, Chairwoman Approved as to Form: By: Angil P. Morris -Jones 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. Doug oyers, Vice President 1 RESOLUTION NO. 2019 — RESOLUTION OF THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRWOMAN TO EXECUTE THE SEVENTH AMENDMENT TO THE OPTION TO PURCHASE AGREEMENT BETWEEN THE CITY OF NATIONAL CITY AND CARMAX AUTO SUPERSTORES CALIFORNIA, LLC, A VIRGINIA LIMITED LIABILITY COMPANY, EXTENDING THE PERMITTING PERIOD FROM DECEMBER 4, 2019 TO DECEMBER 31, 2020, AND HAVING THE ESCROW CLOSING OCCUR TWO WEEKS AFTER THE EXPIRATION OF THE PERMITTING PERIOD WHEREAS, the Parking Authority of the City of National City (the "Authority") owns a 15.08-acre parcel located at the southwest corner of Sweetwater Road and Plaza Bonita Center Way (APN 564-471-11); and WHEREAS, the Authority entered into an Option to Purchase Agreement ("Original Agreement") with CarMax Auto Superstores California, LLC, ("CarMax") on August 18, 2015; and WHEREAS, CarMax intended to use part of the Property to build a CarMax Superstore ("Project"), provide for on -site mitigation, and create a remnant parcel to be used for future development by the Authority; and WHEREAS, the total purchase price in the Original Agreement was not to be less than $3,500,000 for 9.5 acres; and WHEREAS, on May 3, 2016, the Authority adopted Resolution No. 2016-1 entering into a First Amendment to the Option Agreement to extend the Feasibility Period through August 15, 2016, and WHEREAS, the Second Amendment to the Option Agreement was approved and executed in August 2016 to extend CarMax's Feasibility Period; and WHEREAS, on December 6, 2016, the Parking Authority adopted Resolution No. 2016-3 approving the Third Amendment to the Option Agreement amending the total purchase price to $1,500,000 for 7.7 acres, or $4.40 per square foot, contingent on a reduction of the sales price for the County of San Diego Open Space Easement, and allowing the size and dimension of the Property to be determined by CarMax based upon the total size needed for the CarMax Project; and WHEREAS, on September 5, 2017, the Parking Authority adopted Resolution No. 2017-2 approving the Fourth Amendment to the Option Agreement, which reduced the sales price to $1,500,000 for 7.63 acres, giving CarMax until September 14, 2018 to obtain all necessary permits, approvals, and the tentative parcel map, and CarMax would have the right to extend the Permitting Period by up to three (3) successive one (1) month periods, upon prior written notice to the Authority; and WHEREAS, on December 6, 2018, the City Manager executed the Fifth Amendment, as authorized by the Fourth Amendment, to extend the Permitting Period to February 25, 2019; and Resolution No. 2019 - Page Two WHEREAS, the parties desire to enter into a Sixth Amendment to the Option Agreement to extend the Permitting Period from February 25, 2019 to December 4, 2019 with the close of escrow occurring two (2) weeks after the expiration of the Permitting Period, or December 28, 2019; and WHEREAS, the parties desire to enter into a Seventh Amendment to the Option Agreement to extend the Permitting Period from December 4, 2019 to December 31, 2020 with the close of escrow occurring two (2) weeks after the expiration of the Permitting Period, or January 14, 2021. NOW, THEREFORE, BE IT RESOLVED that the Parking Authority of the City of National City approves and authorizing the Chairwoman to execute a Seventh Amendment to the Option to Purchase Agreement between the Parking Authority of the City of National City and CarMax Auto Superstores California, LLC, a Virginia limited liability company, extending the permitting period from December 4, 2019 to December 31, 2020, and having the Escrow closing occur two weeks after the expiration of the permitting period or January 14, 2021. The Seventh Amendment to the Option Agreement is on file in the Office of the City Clerk. PASSED and ADOPTED this 19th day of November, 2019. Alejandra Sotelo-Solis, Chairwoman ATTEST: Brad Raulston, Secretary APPROVED AS TO FORM: Angil P. Morris -Jones Legal Counsel 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 December 2, 2019 K. Douglass Moyers Vice President CarMax Auto Superstores 12800 Tuckahoe Creek Parkway Richmond, VA 23238-1115 Dear K. Douglass, On November 19th, 2019, Resolution No. 2019-3 was passed and adopted by the Parking Authority of the City of National City, authorizing execution of the Seventh Amendment to the Option to Purchase Agreement with CarMax Auto Superstores. We are forwarding a fully executed original Agreement for your records. Michael R. Dalla, CMC City Clerk Enclosure