SECOND AMENDMENT
TO PURCHASE AND SALE OF REAL ESTATE BETWEEN THE CITY OF LAWRENCE, KANSAS AND THE NORTH MASS REDEVELOPMENT, LLC
THIS SECOND AMENDMENT (hereinafter the "Second Amendment") is made and entered into as of the _____day of ________, 201_, by and between the City of Lawrence, Kansas, a municipal corporation, acting by and through Thomas M. Markus, in his capacity as City Manager (“Seller”) and the North Mass Redevelopment, L.L.C. (“Purchaser”), a Kansas limited liability company.
W I T N E S S E T H:
WHEREAS, a Purchase and Sale of Real Estate Agreement has been entered into by and between Seller and Purchaser as of the 28th day of October 2008 and amended by First Amendment on the 28th day of March 2013 (hereinafter referred to as the "Amended Purchase Agreement"), which Amended Purchase Agreement relates to a number of separate parcels of real property identified on Exhibit A attached to the Amended Purchase Agreement and made a part hereof (hereinafter referred to collectively as the “Property”); and
WHEREAS, Seller and Purchaser entered into the Purchase Agreement contemplating the sale and purchase of the Property;
WHEREAS, Purchaser has made progress on developing the Property and in recognition of Purchaser’s progress and the difficulty of developing the Property, Seller wishes to extend Purchaser’s due diligence period for an additional 24 months to and through April 27, 2019, as set forth below in the body of this Second Amendment;
WHEREAS, the Parties agree that the Purchase Price for the Property shall be determined by a new real estate appraisal to ensure the Purchase Price reflects the real estate market conditions existing at or near the time of the closing on the property, if a closing occurs.
NOW, THEREFORE, in consideration of the foregoing and of the terms, covenants, conditions and agreements set forth herein, as well as in consideration of the sum of Ten and
00/100 ($10.00) Dollars and other good and valuable consideration, in hand paid by each party to the other, the receipt and sufficiency of which hereby are acknowledged, it is understood and agreed as follows:
1. The recitals set forth above constitute a material part of this Second Amendment and hereby are incorporated herein by this reference as if set forth at length herein.
2. Paragraph 3 of the Purchase Agreement shall be amended to read as follows:
Consideration: The purchase price for the Property (“Purchase Price”) shall be determined by an appraiser selected by the Seller pursuant to Seller’s regular bidding procedures. Said appraisal shall be performed not more than 75 days before the date of the closing (as estimated in good faith by the Parties.) The cost of the appraisal shall be borne by the Seller. The appraiser shall appraise the number of square feet contained in the Property as determined by the boundary survey referenced above in paragraph 2, excluding any consideration for the square footage for the land included in public street right-of-ways. Purchaser shall pay Seller the Purchase Price as determined by the second appraisal in immediately available funds at the time of closing. The parties agree that if any of the Property acquired by Seller to construct the levee was acquired through use of federal funds and the terms of the agreement between Seller and the federal government required that the funds be reimbursed if the Property is sold, then Seller and not Purchaser shall be responsible for such reimbursement and no adjustment shall be made to the Purchase Price unless the amount required to be reimbursed by the federal government for the Property is greater than the Purchase Price, in which event, upon written notification together with appropriate documentation (“Reimbursement Notice”), from Seller to Purchaser, Purchaser shall within thirty (30) days of receipt of Seller’s Reimbursement Notice elect to either increase the Purchase Price to include the difference between the original Purchase Price and the amount of the reimbursement for the Property required by the federal government so that the Purchase Price is equal to the amount of the reimbursement or terminate this Amended Purchase Agreement by written notice to Seller. Seller agrees to use due diligence and commercially reasonable efforts to determine what amount, if any, is required to be reimbursed by the federal government and to provide this information to Purchaser within sixty (60) days (or if not possible to determine within sixty (60) days, a reasonable time thereafter provided Seller is exercising reasonable efforts and due diligence in obtaining the required information) of execution of this Agreement.
3. Paragraph 6 of the Purchase Agreement, as amended by the First Amendment is amended as follows:
Paragraph 2 of the First Amendment amending Paragraph 6 of the Purchase Agreement is deleted in its entirety.
4. Paragraph 6 of the Purchase Agreement is further amended as follows:
Purchaser’s Right to Extend Feasibility Period. In the event any of the contingencies, set forth in Section 5 above have not been satisfied by Purchaser by April 27, 2019, the Feasibility Period shall end. If by April 27, 2019, Purchaser and Seller shall have not closed on the Property for any reason, the Amended Purchase Agreement shall immediately terminate, and Seller shall forfeit any and all deposit(s) it paid under the Purchase and Sale Agreement, and any amendments thereto. Each party shall thereupon be released from further obligation under the Amended Purchase Agreement.
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5. In the event of any conflict between the terms, covenants, conditions and agreements of the Purchase Agreement and the terms, covenants, conditions and agreements of this Amendment, the terms, covenants, conditions and agreements of this Second Amendment shall govern. However, except as modified herein, the terms, covenants, conditions and agreements of the Purchase Agreement hereby are ratified and confirmed and hereby are incorporated herein by this reference as if set forth in detail at length herein.
6. This Amendment shall bind and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, successor trustees and assigns. This Amendment and the Purchase Agreement may be amended only in writing.
IN WITNESS WHEREOF, the parties have executed this Amendment to be effective as of the day and year first above written.
SELLER:
CITY OF LAWRENCE, a municipal corporation
By: Name: Thomas M. Markus
Title: City Manager
STATE OF KANSAS )
)SS COUNTY OF DOUGLAS )
On this __ day of ____________ 201_, before me, the undersigned, a Notary Public in and for the said County and State, personally appeared Thomas M. Markus known to me to be the City Manager of the City of Lawrence, Kansas, the municipal corporation that executed the within Instrument, and known to me to be the person who executed the within Instrument, on behalf of the corporation herein named, and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its board of directors.
WITNESS my hand and official seal the day and year in this certificate first above written.
Notary Public
My commission expires:
PURCHASER:
NORTH MASS REDEVELOPMENT, LLC
By: _
Name: Jon Davis
Title: Co-Manager
By: Name: Christian Ablah
Title: Co-Manager
STATE OF KANSAS )
)SS COUNTY OF DOUGLAS )
On this __ day of ____________ 201_, before me, the undersigned, a Notary Public in and for the said County and State, personally appeared Jon Davis known to me to be the Co- Manager of North Mass Redevelopment, LLC, that executed the within Instrument, known to me to be the person who executed the within Instrument, on behalf of the limited liability company herein named, acting as co-manager of the limited liability company, and acknowledged to me that such limited liability company executed the within Instrument pursuant to its operating agreement of its members.
WITNESS my hand and official seal the day and year in this certificate first above written.
Notary Public
My commission expires: