HomeMy WebLinkAboutOrdinance No. 2249-2007SUBSTITUTE
Suggested by: City Manager
CITY OF KENAI
ORDINANCE NO. 2249-2007
AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING
ORDINANCE NUMBER 2194-2006 BY AMENDING THE PURCHASE AGREEMENT
AUTHORIZING THE SALE OF APPROXIMATELY 14.784 ACRES OF LAND DESCRIBED
AS LOT A, BARON PARK SUBDIVISION, 2006 REPEAT TO LOWE'S HOME
IMPROVEMENT WAREHOUSE, INC. (LOWE'S) BY ADDING A "PUT RIGHT" FOR ONE
YEAR AFTER THE CLOSE OF THE SALE WHEREBY AT LOWE'S OPTION THE CITY
OF KENAI WOULD REPURCHASE THE PROPERTY FOR THE PURCHASE PRICE BY
LOWE'S MINUS ANY REAL ESTATE COMMISSION PAID BY THE CITY OF KENAI.
WHEREAS, when it is found that encouragement of a new commercial enterprise
would be beneficial to the City of Kenai, KMC 21.15.170 allows the sale of City land to
be authorized by ordinance upon such terms as to price, conditions of conveyance and
other conditions of sale as may be set forth in the ordinance; and,
WHEREAS, on November 1, 2006 the Council enacted Ordinance No. 2194-2006 that
authorized the terms and conditions for the sale of property described as Lot A, Baron
Park Subdivision, 2006 Replat consisting of approximately 14.784 acres to Lowe's for
$1,650,000 for the construction of a home improvement warehouse; and,
WHEREAS, because of uncertainties in the costs of construction Lowe's has requested
a "Put" Right for a period of one year from the date of closing whereby at Lowe's option
the City of Kenai would repurchase the property from Lowe's for the sale price paid by
Lowe's minus any real estate commission paid by the City on the original sale of the
property; and,
WHEREAS, should Lowe's exercise the Put Right, any money or income earned on the
purchase money while in the Airport Land Sale Permanent Fund shall be retained by
the airport.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI,
ALASKA, that Ordinance Number 2194-2006 is amended to authorize the Purchase
and Sale Agreement include the Fifth Amendment to Purchase and Sale Agreement as
shown on Attachment "A."
PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 15th day of
August, 2007. ~ / I
PAT PORTER, MAYOR
Substitute Ordinance No. 2249-2007
Page 2 of 2
ATTEST:
Carol L. Freas, ity Clerk
Introduced: August 1, 2007
Adopted: August 15, 2007
Effective: September 15, 2007
FIFTH AMENDMENT TO PTJRCT3ASE ANll SALE AGREEMENT
THIS FIFTFI AMENDMENT TO PURCHASE AND SALE AGREEMENT (this
"Agreement') is entered into as of this day of , 2007, by and between THE
CITY OF KENAI, ("Seller" ahome-rule municipal corporation of Alaska ("Seller"), and
LOWE'S HIW, INC., a Washington corporation ("Buyer")(referred to in this Agreement
individually as a "Party" and collectively as the "Parties"}.
RECITALS
WHEREAS, the Seller and Buyer are parties to that a certain Purchase and Sale
Agreement dated December 1, 2006 (the "Purchase Agreement") with respect to certain
real property located in the City of Kenai, Alaska;
WHEREAS, Seller and Buyer entered into a First Amendment to Purchase
Agreement dated as of February 15, 2007 whereby certain deadlines set forth in the
Purchase Agreement were extended;
WHEREAS, Seller and Buyer entered into a Second Amendment to Purchase
Agreement dated as of April 2, 2007 whereby certain deadlines set forth in the Purchase
Agreement were extended;
WHEREAS, Seller and Buyer entered into a Third Amendment to Purchase
Agreement as of June 28, 2007 whereby certain deadlines set forth in the Purchase
Agreement were extended; and
WHEREAS, Seller and Buyer entered into a Fourth Amendment to Purchase
Agreement as of , 2007, whereby certain deadlines set forth in the Purchase
Agreement were extended; and
WHEREAS, the Parties desire to amend the Purchase Agreement to provide for a
"Put" right; and
NOW THEREFORE, for good and valuable consideration; the receipt and
sufficiency of which are hereby acknowledged, Buyer and Seller agree as follows:
"Put" Rieht. If Buyer elects to close this transaction, then, on or before
one (1) year after the Closing, Buyer may elect, in its sole discretion, to
give a written notice to Seller (the "Put Notice") of Buyer's election to
cause Seller to repurchase the Property by paying to Buyer a payment
equal to the Purchase Price minus any real estate sales fee or commission
paid by the Seller under Paragraph 12.1 of the Purchase and Sale
Agreement (the "Put"). In the event Buyer elects to exercise the Put, the
repurchase transaction shall close within ninety (90) days of the Put
Notice, and be conducted in the same manner set forth in the Section 11.5
of the Purchase Agreement. The Put shall automatically terminate in the
Lowe's Kenai Peninsula: City of Kenai Parcel
°'^^1nP' July 31, 2007
795236.3
ry TrygCHMCRIT va /g ve
event Buyer does not provide Seller with notice within the requisite time
requirements of its intention to exercise the Put. The provision of this
Section 1 shall survive Closing. This Agreement shall not be recorded;
however a "Memorandum of Put Right shall be recorded against the
Property at Closing in the form and contents set forth as Exhibit "A"
hereto.
2. Land Sale Proceeds. Proceeds from the sale of this property shall be
deposited in the Airport Land Sale Permanent Fund (the "Fund")
according to KIvIC 7.30.010 and invested in government securities
according to the criteria set forth in KMC 7.22.030 and shall remain in the
Fund until Buyer either exercises or waives the Put Right set forth herein.
Should the Put Right be exercised, the repurchase price as set forth in
Paragraph 1 of this amendment will be paid out of the Fund. Any interest
or income earned from the Purchase Price money while in the Fund is and
shall remain property of the City of Kenai.
3. Miscellaneous.
a. Confirmation of Purchase Agreement. The Parties hereby affirm
and agree to be bound by all of the terms of the Purchase
Agreement, as amended hereby.
b. Non-Impairment. Except as expressly provided herein, nothing in
this Agreement shall alter or affect any proviso, condition, or
covenant contained in the Purchase Agreement or affect or impair
any rights, powers, or remedies of the Parties thereunder, it being
the intent of the Parties that, except as amended hereby, all of the
terms, covenants and conditions of the Purchase Agreement shall
remain in full force and effect.
c. Entire Agreement. This Agreement constitutes the entire
agreement with respect to the subject matter hereof.
d. Governine Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Alaska.
e. Countemarts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument
£ Facsimile Transmissions. This Agreement shall be effective upon
confirmation of receipt of facsimile transmission.
g. Attorney's Fees. In the event a party commences legal
proceedings to enforce any terms of this Agreement, the prevailing
Lowe's Kenai Peninsula: Ciry of Kenai Parcel
Page 2 of 7 July 31, 2007
795236.3
Party shall have the right to recover reasonable attorney's fees and
costs from the other Party, including reasonable attorney's fees and
costs on appeal, to be fixed by the court in the same action.
IN WITNESS HEREOF, the Parties have executed this Agreement as of
the first date written above.
SELLER: CITY OF KENAT, ALASKA
a home-rule municipal corporation of
Alaska
By:
Name:
Title:
BUYER: LOWE'S:
Lowe's HIW, Inc.,
a Washington corporation
By:
Name:
Title:
Iowe's Kenai Peninsula: City of Kenai Parcel
Page 3 of 7 Suly 31, 2007
795236.3
NOT BINDING UNTIL EXECL~I'ED I3Y ALL PARTIES
EXHIBIT A
Form of Memorandum of Agreement
Recording Requested By
And When Recorded, Return To:
Paul M. Harnisuz
Jones Waldo Holbrook & McDonough
170 South Mani Street, Suite 1500
Salt T eke City, UT 84101-1644
MEMORANDUM OF AGREEMENT
THIS MEMORANDUM OF AGREEMENT (this "Memorandum") is made and
entered into as of the day of ___, 200_, by and between THE
CITY OF I~;NAI, ALASKA, ahome-rule municipal corporation oPAlaska ("Seller"),
and LOWE'S HIW, INC., a Washington corporation, ("Buyer") (individually, a "Party"
and. collectively, the "Parties').
WHI3REAS, Buyer and Seller have entered into that certain Purchase and Sale
Agreement of even date herewith (the "AgreemenP');
WI~IEREAS, the Agreement perfanls to the "Subject Property" located in the City
Kenai, Kenai Peninsula Borough, Alaska and more particularly described on Schedule I
attached hereto; and
WHEREAS, the Agreement provides for notice of its terms to be recorded against
the Subject Property in the official records of Kenai Peninsula Borough, Alaska;
NOW, THEREFORI~, the Parties hereby give notice as follows:
Section 11 of the Agreement provides to Seller certain rights to repurchase the
Subject Property, on terms and conditions more fully set forth in the
Agreement. The right to repurchase the Subject' Property shall terminate on
the date three (3) years and one (1) day after the date nn which Buyer acquires
fee title to the Subject Property unless the Completion Date has been extended
pursuant to Section 11.1 of the Purchase and Sale Agreement. Any extension
of the completion date under Sectiion 1 L I shall add the equivalent vnount of
time to the Termination Date of the Right of Repm•chase. Lipon expiration of
the temlination date, Seller will record at Buyer's request an appropriate
document aclrnowledg~ing termination of the Right of Repurchase.
Page 1 of4 Lowe's Kenai Peninsula: City of ICeuai P:~rcel
Augur[ 8, 2007
NOT BINDING UNTIL EXECUTED BY AL,L PARTIES
2. Section I of the Fifth Amendment of the Purchase and Sale Agreement
provides to the Buyer certain rights ("1'ut" Right) whereby The Buyer may
elect to have the Seller repurchase the properCy, on terms and conditions more
fully set forth in the amendment. The Put Right shall terminate one year after
the Closing Date on the property. The Put Right shall automatically terminate
in the event the Buyer does not exercise the Put Right. Upon expiration of the
Put Right, Buyer will record at Seller's expense an appropriate document
acknowiedgin~ termination of the Put Right.
Page 2 of 4 Lowe s Kenai Pentnsnla: City of Kenai Pxrcel
August 8, 2007
NOT BINDIIV~G UNTIL EXECU'T'ED I3Y ALL PARTIES
Signature Page for Seller:
IN WITNESS WHEREOI', the parties hereto have executed this Agreement under
seal as of the date first above written.
SELLER:
CITY OE KENAI, ALASKA
A home-rule municipal corporation of
Alaska
I3v:
STATE OP
I30ROIJGH OF
ss.
Name:
Title:
ON THIS day of , 200 ,before me, the
undersigned, a Notary Public in and 'for said Borough aad State, personally appev~ed
to me personally lmown to be the person described in
and who executed the foregoing insh~ument, who, being by me first sworn, stated that
he/she is the _ o'f , a
,and that he/she executed such instrument on behalf of said
corporation by authority of its board of directors, and said person acknowledged to me
that he/she executed such insti~tunent as the act and deed of said corporation.
IN WITNESS WFIEREOF, I have hereunto set my hand and affixed my official
seal the day and year last above written.
Notary Public
Printed Name:
IVIy Commission Expues:
Page 3 of 4 Lowe's Kenai Pennisula: City of Kenai Parcel
August 8, 2007
NOT BINDING UNTIL EXECUI'E)7 BY ALL PARTIES
Signatm•e Page for Buyer:
LOWE'S:
Lowe's HIW, Inc.,
A Washington corporation
By:
Name:
Title:
STATE OF _ ____ )
ss.
COUNTY OP )
ON THIS day of __ _ , 200_, before me, the
undersigned, a Notary Public in and for said County and State, personally appeared
to me personally Irnown to be the person described in
and who executed the foregoing instrument, who, being by me first sworn, stated that
he/she is the _ of LOWE'S HIW, INC., a Washington
corporation, and that he/she executed such instrument on behalf of said corporation by
authority of its board of dh~cctors, acid said person acknowledged to me that he/she
executed such instrument as the act end deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year last abovewritten.
Notary Public
Printed Name:
My Commissiw2 Expires:
Page4 of4 Lowe's Kenai Peninsula. City of Kenaf Parcel
Angus[ 8, 2007
SCHEDULEI
Legal Description
LOT A, BARON PARK, 2006 REPEAT, ACCORDING TO THE OFFICIAL PLAT
THEREOF, FILED UNDER PLAT NUMBER 2006-25, RECORDS OF KENAI
RECORDING DISTRICT, THIRD 7UllICIAL DISTRICT, STATE OF ALASKA
TAX FARCEL NUMBER: 043-360-44
Lgwe's Kenai Peninsula: City of Kenai Parcel
Page 7 of 7 July 31, 2007
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