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HomeMy WebLinkAboutOrdinance 15- 1906 Ratifying City Manager Signature on Amendment to the Purchase and Sale Agreement for the North Park Property N co.1► ORDINANCE NO. 1906 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, RATIFYING THE CITY MANAGER'S SIGNATURE ON AN AMENDMENT TO THE PURCHASE AND SALE AGREEMENT FOR THE SALE AND CONVEYANCE OF THE NORTH PARK PROPERTY. WHEREAS, the Bozeman City Commission finally adopted Ordinance 1885 on July 21, 2014 authorizing the sale of the North Park property; WHEREAS, on December 23, 2014 Micropolitan Ent., LLC and Powder River Comp., LLC (the "Buyer") advised the City of Bozeman that they seek City Commission approval of an Amendment to the existing purchase and sale agreement transferring ownership of the North Park property; WHEREAS, the Amendment includes, inter alia, an extension of the closing date on or before August 21, 2015, the one year anniversary of the effective date of Ordinance 1885 (August 21, 2014); and WHEREAS, the Amendment also includes a contingency that the Buyer successfully negotiate and secure a long term lease with the State of Montana for all or a portion of State Trust Land south of the common boundary line of the property and abutting State Trust Lands. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 Legislative Findings. The City Commission hereby adopts the following findings in support of the adoption of this Ordinance: 1. The Commission adopts the legislative findings made during adoption of Ordinance 1885 for purposes of adoption of this Ordinance; 2. Buyers are seeking an Amendment to the original Agreement to Sell and Purchase Real Estate for the purchase of the North Park Property. l 3. Included in the proposed Amendment is the Buyers request for an extension of the closing date from February 21, 2014 to on or before August 21, 2015; 4. Also included in the proposed Amendment is a contingency that the Buyer successfully negotiate and secure a long term lease with the State of Montana for all or a portion of State Trust Land south of the common boundary line of the property and abutting State Trust Lands; 5. On November 17, 2014,the City of Bozeman has obtained authorization of the Montana Board of Land Commissioners to purchase two easements for access to the North Park property through the State Trust Lands; and 6. For the purposes of the sale of the North Park property, the February 28, 2014 appraisal remains valid; the closing date as stated in the Amendment is on or before August 21, 2015, the one year anniversary of the effective date of Ordinance 1885 (August 21, 2014). Section 2 The Bozeman City Commission hereby ratifies the City Manager's signature on the attached Amendment to the Agreement to Sell and Purchase Real Estate (Exhibit A) and to take all other action necessary to effectuate the sale of the North Park property to purchaser Micropolitan Ent., LLC and Powder River Comp. LLC and/or their assigns. Section 3 Repealer All provisions of the ordinances of the City of Bozeman in conflict with the provisions of this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 4 Savings Provision This ordinance does not affect the rights and duties that matured, penalties that were incurred or proceedings that were begun before the effective date of this ordinance. All other provision of the Bozeman Municipal Code not amended by this Ordinance shall remain in full force and effect. Section 5 Severability That should any sentence, paragraph, subdivision, clause, phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect the validity of this ordinance as a whole, or any part or provision thereof, other than the part so decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman Municipal Code as a whole. 2 Section 6 Codification This Ordinance shall not be codified but shall be kept by the City Clerk and entered into a disposition list in numerical order with all other ordinances of the City. Section 7 Effective Date This ordinance shall be in full force and effect thirty (30) days after final adoption. PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the 2nd day of February,2015. J K. USS l or ATTEST:'V B S AC. _ LMEN,CMS City ClerK, FINALLY PASSED,ADOPTED AND APPROVED by the City Commission of the City of Bozeman, Montana on second reading at a regular session thereof held on the 23rd day of February, 2015. The effective date of this ordinance is March 23,2015. 3 M F Y AUSS ATTEST: r ' a ST lo—UIVMEN,CFTC Cit APPROVED AS TO FORM: �17—— GREG U LIVAN City Attorney 4 AMENDMENT TO AGREEMENT TO SELL AND PURCHASE .{i. This AMENDMENT("Amendment")is made this day of January, 2015,by and between the City of Bozeman("Seller")and Micropolitan Enterprises,LLC and Powder River Company,LLC and/or assigns (collectively, "Buyer") with respect to that certain Agreement to Sell and Purchase dated the 12m day of June, 2014 between the parties (the "Agreement"), which Agreement together with this Amendment is referred to herein as the"Buy-Sell Agreement," for the following described real property (the "Property") situated in Gallatin County, State of Montana, more particularly described as follows,to wit: Tracts I-A, 2-A, 3-A, 4-A of Certificate of Survey 2153, situate in the NW1/4 of Section 36, Township 1 South,Range 5 East,PMM,Gallatin County, City of Bozeman,Montana. A copy of the Agreement is attached to this Amendment and incorporated herein by this reference. The Parties agree as follows: 1. The Partics recognize and agree that this Amendment is contingent upon ratification by the Bozeman City Commission of the City Manager's approval of this Amendment by duly adopted ordinance of the Bozeman City Commission pursuant to the requirements of Section 2.11 of the Bozeman City Charter and Chpt. 2,Art. 6, Div. 5,BMC. Final ratification of this Amendment shall not be effective until thirty(30) days after final adoption of such ordinance ("Amendment Effective Date"). Should the Bozeman City Commission fail to ratify the City Manager's approval of this Amendment for whatever reason, this Amendment shall be terminated and have no force and effect, and the Agreement shall remain as the only writing for the sale and purchase of the Property, 2. Buyer and Seller acknowledge and agree that the Effective Date of the Agreement, established pursuant to Section 6.B)of the Agreement,is August 21,2014. 3_ The fast sentence of Section 15 (Closing) of the Agreement is deleted, and the following sentence is substituted in its place: "Closing of the purchase and sale of the property shall occur on or before August 21,2015." 4. Buyer and Seller desire to reestablish a date (the "Contingency Date") governing the expiration of all of contingency periods set forth in Section 6 of the Agreement, as amended by the provisions of this Amendment. The Contingency Date shall be the earlier of the following dates, (i) the date that is fifteen (15) days following a final determination by the Montana Board of Land Commissioners to authorize or reject Buyer's application for a long-term lease of the State Lands (defined below);or(ii)August 18,2015. 5. Buyer's obligation to complete the purchase of the Property on the Closing Date is, at its option, contingent on Buyer negotiating and securing a long-term lease with the State of Montana for all or a portion of the State Trust Lands located south of the common boundary line between the Property and the abutting State Trust Lands in Section 36, Township I South, Range 5 East, MPM, Gallatin County,Montana(the"State Lands")with terms satisfactory and acceptable to Buyer. If Buyer Amendment to Agreement to Sell and Purchase 1 is unable to secure a lease for the State Lands satisfactory and acceptable to Buyer by the Contingency Date, Buyer, in its sole discretion, may either (i) waive this contingency or (ii) give Seller written notice prior to the expiration of the Contingency Date (or any extension thereto) of Buyer's desire to terminate the Buy-Sell Agreement, and upon such notice this Buy-Sell Agreement shall terminate and Buyer shall be entitled to a refund of earnest money. Buyer shall submit a completed Letter of Intent for lease of the State Lands to the Montana Department of Natural Resources and Conservation no later than January 23, 2015, and Buyer shall thereafter pursue a lease agreement with the State of Montana with diligence. Buyer shall provide Seller a detailed monthly report on the first of each month, commencing February 1, 2015, as to the status of said lease agreement. The Letter of Intent submittal and report dates set forth in the previous sentence shall apply regardless of whether the Bozeman City Commission has ratified the City Manager's approval of this Amendment prior to such dates. Buyer's failure to comply with the requirements of this paragraph shall constitute Buyer's material breach of the Buy-Sell Agreement. 6. Section 6.A)of the Agreement sets forth terms for a period of time for Buyer to review relevant matters pertaining to the Property. The provisions of Section 6.A) are hereby affirmed in the entirety subject to the extension of the date upon which Buyer has to notify Seller of its termination of the Buy- Sell Agreement because it is dissatisfied with the Property by the Contingency Date(or any extension thereto). 7. Section 6.C) of the Agreement sets forth terms for a period of time during which Seiler shall secure and record easements for access and utilities to the Property across State Trust Lands abutting the Property.The provisions of Section 6.C)are hereby affirmed in the entirety subject to the extension of the date upon which.Buyer has to notify Seller of its termination of the Buy-Sell Agreement because of Seller's failure to secure the necessary access and utility easements satisfactory to Buyer's needs by the Contingency Date (or any extension thereto). 8. Section 6.E) of the Agreement sets forth terms for a period of time during which Buyer and Seller have to agree to terms for an MOU, as defined therein, regarding the TIF District, as defined therein,or a similar and agreeable tax increment district that is agreeable to the Buyer.The provisions of Section 6.E) are hereby affirmed in the entirety subject to the extension of the date upon which Buyer has to notify Seller of its termination of the Buy-Sell Agreement because the parties'failure to reach agreement on the MOU,by the Contingency Date(or any extension thereto). 9. Section 6.D) of the Agreement sets forth terms relating to the Approval of a Master Site Plan by the City of Bozeman for the Property. The first two paragraphs of Section 6.D) are hereby deleted in their entirety and replaced with the following: "The closing of this Agreement is contingent on Buyer obtaining approval to its satisfaction from the City of Bozeman of Buyer's application of a Master Site Plan for the Property on or before the Contingency Date. If the Master Site Plan is not obtained within the time period described above or the results and content of the Master Site Plan are not satisfactory to Buyer for any reason, Buyer, in its sole discretion, may either (i) waive this contingency or(ii)give Seller written notice prior to the Contingency Date(or any extension thereto)of Buyer's desire to terminate this Agreement and upon such notice this Buy-Sell Agreement shall Amendment to Agreement to Sell and Purchase 2 L-� terminate,and Buyer shall be entitled to a refund of its earnest money." The third paragraph of Section 6.D)shall be amended to read as follows: "Nothing herein shall be construed to restrict the City of Bozeman when acting in its regulatory capacity to impose reasonable conditions regarding improvements to or maintenance of public infrastructure on the Property as part of the Master Site Plan or any other development of the Property." 10. If the Buyer does not exercise its contingencies and provide notice to Seller of its desire to terminate the Purchase and Sale Agreement on or before 5:00 p.m. Mountain Time on the Contingency Date,the Good Faith Deposit(earnest money)required and made pursuant to Section 3 of the Agreement shall be nonrefundable and released to Seller by the Closing Agent, Buyer hereby authorizes the Closing Agent to release the Good Faith Deposit to Seller upon receipt of an affidavit of Seller declaring that Seller has not received from Buyer a notice of termination of the Buy-Sell Agreement on or before the Contingency Date. Should Buyer close on the Property,the Good Faith Deposit(whether or not released to Seller)will be applied to the purchase price at closing. 11. All other terms and conditions of the Agreement as incorporated herein and taken together with this Amendment and referred to as the Buy-Sell Agreement continue in full force and effect. Seller. CTT BO MAN � _ By: 1 Date: Chris A.Kukulski,City Manager Amendment to Agreement to Sell and Purchase 3 , Buyer: MICROPOLITAN WERPRISES,LLC By: L'�' l!f - Date: Clayton R.Schubert,Member POWDER RIVER COMPANY,LLC ` By: ZDate: Quin Williams,managing member Amendment to Agreement to Sell and Purchase 4