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Home My WebLink About08- Second Amendment to Buy/Sell Agreement Between City and City Center Commerce, LLC Purchase of Retail Condo Space in City GarageMEMORANDUM To: Chris Kukulski From: Bob Planalp Date: December 12, 2008 Subject: City Center Commerce, LLC Purchase Of Retail Condo Space in City Garage I had a meeting with the owner of City Center Commerce, LLC on December 11, 2008 to review the decision earlier that morning of the Parking Commission. Attached to this memo are three sets of "Second Amendment to Buy/Sell Agreement" hand delivered to me at the meeting. The purchaser informed me that Amendments 1-7 were accepted by the Parking Commission. I have read this amendment and it does not discuss the request of an increase in parking spaces from 28 to 56. It is my recommendation you may sign the Second Amendment to Buy/Sell Agreement. There are three copies of the amendment attached to this memo. The purchaser explained to me the Parking Commission essentially allowed an additional 10 parking spaces would be added to the contract. The Parking Commission apparently did not want to amend the contract but will inform the planning staff that 10 additional spaces will be attributed to the retail condo units in the garage. The purchaser did explain the delay in closing and possession cost him at a minimum of $65,000. He did not at this point seem agitated about the loss. He was hopeful the doubling of the parking spaces would allow him to recapture that loss. I explained to him the addition of 10 parking spaces is an appreciable accomplishment. After you and Chris Pope have signed the amendment, please deliver the originals to Mr. Caldwell for his execution. J. Robert Planalp pc: Anna Rosenberry SECOND AMENDMENT TO BUY/SELL AGREEMENT This document amends the Agreement to Sell and Purchase between the CITY OF BOZEMAN, Seller and CITY CENTER COMMERCE, LLC, Buyer dated the 16th day of November, 2007, and the First Amendment to the Buy Sell Agreement dated the~day of '[~~eMh eC 2008, all of which concerns the following described property: Retail Units R-1, R-2, R3, R-4A, R-5, R-6 and R-7, including the right to use the convnon and limited common elements adjacent to each unit, to be located at 1/2 block site with Parcel C, COS C-1-F (Lots 13-24, Block F Original Plat ofBozeman) in the City of Bozeman, Montana as described in RFP enlarged retail plans provided in RFP deadline date of July 13, 2007 and as preliminarily described on Exhibit A (the "Real Property"). At such time as a Preliminary Title Commitment of the Real Property is completed pursuant to Section 5, the legal description set forth on the title commitment shall be attached to this Agreement as Exhibit A-1 in lieu of Exhibit A; For good and valuable consideration the receipt of which is hereby acknowledged, the parties hereto agree to the following Amendment. All terms and conditions of the Agreement to Sell and Purchase and the First Amendment shall remain unchanged and are hereby fully incorporated by reference except as amended by the following terms and conditions: The first sentence of the first paragraph of Section 5, page 3, which currently reads: "The closing date for this transaction shall be on or before forty-five (45) business days following Substantial Completion (defined below), of the Retail Units on the Real Property, unless hereinafter extended by mutual agreement of the parties and evidenced in writing; provided, however, Buyer shall be entitled to close on the Retail Units either (i) all on the same closing date, as determined by Buyer, or (ii) close on the individual Retail Units on different closing dates, as determined by Buyer, throughout the forty-five (45) business days following Substantial Completion of the Retail Units on the Real Property (the "Closing Period")." Shall be amended to state as follows: "The closing date for this transaction shall be on or before April 15, 2009 or forty- five (45) business days following Substantial Completion (defined below), of the Retail Units on the Real Property, whichever is later, unless hereinafter extended by mutual agreement of the parties and evidenced in writing; provided, however, Buyer shall be entitled to close on the Retail Units either (i) all on the same closing date, as determined by Buyer, or (ii) close on the individual Retail Units on different closing dates, as determined by Buyer, throughout the forty-five (45) business days following Substantial Completion of the Retail Units on the Real Property on or before April 15, 2009, whichever is later, (the "Closing Period")." Second Amendment to Buy/Sell Agreement The last sentence in the first paragraph of Section 5, page 3, as amended by the first Amendment to the Buy Sell Agreement currently reads: "Substantial Completion shall occur on later than the 15~' day of October, 2008, subject to any change orders as set in #19 herein." Shall be amended to state as follows: "Substantial Completion shall be defined as it is defined in AIA document 201- 1997 §9.8.1, which is to say the stage in the progress of the Worlc (as defined in by the contract documents between the City of Bozeman and Martel attached as Exhibit C) when the Work or designated portion thereof is sufficiently complete in accordance with the contract documents between the City of Bozeman and Martel (See Exhibit C, attached hereto) so that the Buyer may occupy or utilize the Work for its intended use. Substantial completion shall be evidenced by a signed Certificate of Substantial Completion. In addition to the completion of the Work as defined in AIA document 201-1997 9.8.1, all required occupancy permits, inspections by the City of Bozeman Building Department and any required improvements agreements are needed to satisfy conditions of the final site plan (file number Z- 05006 dated 7-23-2007). A signed temporary occupancy permit is required before the date of Substantial Completion is established." The first sentence of Section 10, page 5, which currently reads: "During the thirty (30) business days following Substantial Completion of the Retail Units located on the Real Property, buyer will be entitled to enter the Retail Units, to complete due diligence on the Retail Units (the "Due Diligence Period")." Shall be amended to state as follows: "Starting February 10, 2009 or thirty (30) business days following Substantial Completion of the Retail Units located on the Real Property, whichever occurs later, Buyer will be entitled to enter the Retail Units, to complete Due Diligence on the Retail Units (the "Due Diligence Period")." 4. The last sentence in Section 10, page 5, which currently reads: "The Release Date for the inspection contingency on the Retail Units shall be thirty (30) business days from the date of Substantial Completion." Shall be amended to state as follows: Second Amendment to Buy/Sell Agreement "The Release Date for the inspection contingencies on the Retail Units shall be thirty (30) business days from March 25, 2009 or thirty (30) business days following Substantial Completion of the Retail Units, whichever occurs later." Section 15(e), which currently reads: "(e) Buyer's inspection and Due Diligence of the Retail Units. Release date 30 days after Substantial Completion." Shall be amended to state as follows: "(e) Buyer's inspection and Due Diligence of the Retail Units. Release date March 25, 2009 or thirty (30) business days following Substantial Completion, whichever occurs later;" 6. Section 15(h), which currently reads: " Buyer's attorney advises Buyer to proceed with this transaction because there are not legal issues adversely affecting this transaction, the Retail Units or Retail Unit R-4-A, if applicable;" Shall be amended to state as follows: "Buyer's attorney advises Buyer to proceed with this transaction because there are not legal issues adversely affecting this transaction, the Retail Units or Retail Unit R-4-A. Release date March 25, 2009 or thirty (30) business days following Substantial Completion, whichever occurs later." Section 15(i), which currently reads: "Buyer's review and approval that the Retail Units are built substantially as set forth in Exhibits B and C except mutually agreed changes or those changes deemed necessary by Seller pursuant to Paragraph 19 below." Shall be amended to state as follows: "Buyer's review and approval that the Retail Units are built substantially as set forth in Exhibits B and C except as mutually agreed or those changes deemed necessary by Seller pursuant to Paragraph 19 below. Release date March 25, 2009 or thirty (30) business days following Substantial Completion, whichever occurs later." Second Amendment to Buy/Sell Agreement CITY OF BOZEMAN, MONTANA By: Date: 12 -12 -d ~ Chris Kukulski Its: City Manager CITY CENTER COMMERCE, LLC By; Date Brian Caldwell Its: Managing Member BOZEMAN PARKING COMMISSION By: U~ 12-(Z•Og Date: l ~' ~ f ~ ' d Chris Pope Its: Chairperson Second Amendment to Buy/Sell Agreement