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Offer | Reistad
THE FIREHOUSE BOZEMAN, MT
CONFIDENTIAL & PROPRIETARY 2021 PAGE 1
The
Firehouse
November 08, 2021
The Firehouse:
An Opportunity
for Affordable
Home Ownership
THE FIREHOUSE BOZEMAN, MT
CONFIDENTIAL & PROPRIETARY 2021 PAGE 2
pg 4. Letter of Intentpg 4. Letter of Intent
pg 5. pg 5. Architectural Concept SketchesArchitectural Concept Sketches
pg 7. pg 7. Team BiosTeam Bios
pg 9. pg 9. Home Ownership Pro Forma OptionHome Ownership Pro Forma Option
pg 11. pg 11. Acquisitions & ReferencesAcquisitions & References
INDEX
THE FIREHOUSE BOZEMAN, MT
CONFIDENTIAL & PROPRIETARY 2021 PAGE 3
Letter
of Intent
THE FIREHOUSE BOZEMAN, MT
CONFIDENTIAL & PROPRIETARY 2021 PAGE 4
CITY OF BOZEMAN COMMISSION,
Thank you for the opportunity to propose on the redevelopment at Fire Station 1 at Rouse and Mendenhall in
Downtown Bozeman.
We recognize the magnitude and potential of the given location in this city, and what it can do for the
development of the area - most specifically bordering a bustling downtown community, a residential
community, and the elementary school community right at it’s doorstep.
What our team wants to do with the redevelopment opportunity is what the city needs the most — create
aordable housing ownership opportunities. Our plan is not to create rentable, below market rate housing.
Our plan is to give the workforce in the community (the teachers, librarians, small business owners and so on)
the opportunity to own in the heart of the city they work so hard to remain in.
We are a team of locals, Hawthorne parents, creatives, designer, thinkers, innovators and doers. We
have created a financial plan with minimal, if any, financial return to design and build a mixed use building
that will not only provide housing with an emphasis on 1 and 2 bedroom units, but also allow for a
thoughtful commercial tenant selection that will work in tandem with the school, residential and downtown
neighborhoods.
In order to achieve this need for the city, we realize that we may be oering a lower dollar amount for this
property. And we will ask for your teamwork in helping us reach the finish line in this development — we are
willing to give our time and investments into this dire city need — and we hope that the city is willing to do
the same.
Many oers will come your way that maximize the return on this wonderful investment opportunity, and we
realize that this type of financial contribution to the city will be tempting. We ask you to sincerely consider if
more above market rate housing in this prime location, built by developers who are not invested in this city, is
what is best for the healthy growth of Bozeman.
Thank you very much for your time, and we look forward to the opportunity to create a civic minded project
with you.
Regards,
Cory Reistad and Allison Bryan
THE FIREHOUSE BOZEMAN, MT
CONFIDENTIAL & PROPRIETARY 2021 PAGE 5
ARCHITECTURAL CONCEPT SKETCHES
VIEW FROM HAWTHORNE ELEMENTARY
THE FIREHOUSE BOZEMAN, MT
CONFIDENTIAL & PROPRIETARY 2021 PAGE 6
The
Team
THE FIREHOUSE BOZEMAN, MT
CONFIDENTIAL & PROPRIETARY 2021 PAGE 7
CORY REISTAD, ENTREPRENEUR AND
OWNER OF SAV, A FAST PACED DY
NAMIC SYSTEMS INTEGRATION FIRM,
BEGAN HIS CAREER IN THE FIELD
AS A TECHNICIAN OWNER IN 1999,
CORY HAS SINCE BUILT A TEAM OF
UNIQUE, CREATIVE AND CRAFTY IN
DIVIDUALS OVER THE YEARS WHO
NOT ONLY EXEMPLIFY TECHNIQUE
AND DESIGN, THEY UNDERSTAND
THE IMPORTANCE OF UNYIELDING
CLIENT SERVICE.
THE RESULT IS A 60+ MEMBER TEAM
AND GROWING SPREAD THROUGH
OUT BOZEMAN & BIG SKY, MT AS
WELL AS JACKSON, WY.
IN ADDITION, CORY HAS CREATED
A REAL ESTATE INVESTMENT AF
FILIATE AND IS CREDITED WITH DE
VELOPMENT PROJECTS TO INCLUDE
BLOCK 106, THE TREELINE COFFEE
BUILDING, AND VARIOUS REAL ES
TATE ACQUISITIONS IN SPANISH
PEAKS MOUNTAIN CLUB, MOON
LIGHT BASIN AND THE GREATER BIG
SKY AREA. A TRUE NATIVE TO BOZ
EMAN, CORY IS KEENLY INTEREST
SED IN THE FUTURE PRESERVATION
OF THE BOZEMAN COMMUNITY AS A
PLACE FOR THOSE WHO LIVE, WORK
AND PLAY.
ALLISON IS THE FOUNDER AND CRE
ATIVE DIRECTOR OF OPEN STUDIO
COLLECTIVE, A WOMAN OWNED
DESIGN STUDIO OPERATING OUT
OF BOZEMAN, MONTANA. SHE IS A
MULTI DISCIPLINARY DESIGNER WITH
A BACKGROUND IN BOTH GRAPH
IC DESIGN AND ARCHITECTURE.
WITH OVER 20 YEARS OF DESIGN
EXPERIENCE, HER WORK INCLUDES
INTERNATIONAL AWARD WINNING
ARCHITECTURE AND GRAPHIC DE
SIGN INCLUDING SEVERAL YEARS
WORKING IN GLOBAL RETAIL DESIGN
AT NIKE AND AS CREATIVE DIRECTOR
AT CLB ARCHITECTS.
SHE FOUNDED OPEN STUDIO COL
LECTIVE WITH THE IDEA OF KEEPING
AN OPEN MIND WITHIN THE DESIGN
PROCESS: MEDIUMS, TYPOLOGIES,
AND COLLABORATIONS WITH CLI
ENTS AND PARTNERS. ALLISON EN
JOYS WORKING AT ALL SCALES,
WITH AN EMPHASIS ON COMMUNITY
AND WELLNESS BASED PROJECTS..
ALLISON IS HAS BEEN WORKING ON
PROJECTS IN THE ROCKY MOUNTAIN
WEST SINCE 2007, IS A LICENSED AR
CHITECT IN OREGON AND MONTANA,
AND IS ALSO A LEED ACCREDITED
PROFESSIONAL. SHE CURRENTLY
SITS ON THE DESIGN REVIEW BOARD
FOR THE CITY OF BOZEMAN.
MINARIK ARCHITECTURE IS COMMIT
TED TO PROJECTS THAT FORM BOTH
A RESPONSE AND RELATIONSHIP
WITH THEIR SURROUNDINGS. WE UN
DERSTAND THE RESPONSIBILITY OF
ADDING OR ALTERING SPACE WITH
IN A LANDSCAPE AND HOW THAT
CHANGE WILL IMPACT THE NARRA
TIVE OF A PLACE FOR FUTURE GEN
ERATIONS.
WE STRIVE TO MINIMIZE UNNECES
SARY AND OFTEN COSTLY ARCHI
TECTURAL LANGUAGE INFLUENCED
BY TRENDS IN ORDER TO MAXIMIZE
LONG TERM SPATIAL VITALITY AND
CREATE BUILDINGS THAT, IN 100
YEARS, RETAIN THEIR INTEGRITY
AND ELEVATE THE DESIGN CONVER
SATION FOR PROJECTS THAT FOL
LOW.
OUR PROCESS VALUES COMMUNICA
TION, ATTENTION TO CRAFT, DESIGN
INNOVATION, TECHNICAL CURIOSI
TY, AND UNDERSTANDS THE RIGOR
NECESSARY TO TAKE A PROJECT
FROM CONCEPT THROUGH CON
STRUCTION.
CORY REISTAD OPEN STUDIO COLLECTIVE MINARIK ARCHITECTURE
ALLISON BRYANDEVELOPER/CREATIVECORY REISTADDEVELOPER MINARIK ARCHITECTUREARCHITECT
THE FIREHOUSE BOZEMAN, MT
CONFIDENTIAL & PROPRIETARY 2021 PAGE 8
Potential
Pro Forma
THE FIREHOUSE BOZEMAN, MT
CONFIDENTIAL & PROPRIETARY 2021 PAGE 90000001
The Firehouse - Affordable Home Ownership - Potential pro forma
Lot Size (Acres)0.450
SF 19,602
Lot Acquisition $2,100,000
PP/SF $107.13
Build Out 18 months
Description # of Units
Units 57 Home Ownership
Cost to Build $225 per square foot
Size 815 (combo of 1+2 bedrooms)
Unit SF 46,550
Load Factor 8,215
Total Res SF 54,765
Cost per unit $216,177.63
Cost for Condos $12,322,125.00
Commercial Various
Cost to Build Shell $200
Size Various
Total SF 5,000
Cost for Commercial $1,000,000.00
Total Cost of Commercial w/o fit out $1,000,000.00
Amenities Various
Cost to Build $200
Size Various
Total SF 4,000
Cost for Amenities $800,000.00
Total Cost of Amenities $800,000.00
Parking 33
Cost to Build $105
Size 8,000
Total SF 8,000
Cost $840,000.00
Rent or Sell Rent
Total Cost of Parking $840,000.00
Soft Costs
Development Fees (8%)$1,196,960
Architectural Fees (5%)$750,000.00
Consultant Fees (geotechnical, civil, landscape, envelope, lighting, code)$150,000.00
Permit Fees $50,000.00
Total Soft Costs $2,146,960
Total Hard Cost of Building $14,962,125.00
Total Hard Cost of Building with Sale Price $17,062,125.00
Total Hard Cost of Building with Sale Price + Soft Costs $19,209,085.00
Total SF
Total Residential SF 54,765
Total Commercial SF 5,000
Total Amenities SF 4,000
Total Parking SF 8,000
Total 71,765
Cost Per Square Foot Total*$208.49
*Assuming we can get grants/incentives for demo of existing infrastructure and decommissioning of the well.
*Assumption of city waving impact fees.
THE FIREHOUSE BOZEMAN, MT
CONFIDENTIAL & PROPRIETARY 2021 PAGE 10
Acquisitions & References
THE FIREHOUSE BOZEMAN, MT
CONFIDENTIAL & PROPRIETARY 2021 PAGE 11
620 East CottonwoodBozeman, MT$10,500,000 Retail Sales Price
Russ Nelson - First Security BankSenior Commercial LenderDirect: 406-548-6938russ.nelson@ourbank.com
302 N Grand Bozeman, MT$6,400,000 Retail Sales Price
Russ Nelson - First Security BankSenior Commercial LenderDirect: 406-548-6938russ.nelson@ourbank.com
ACQUISITION & REFERENCES
BLOCK 106
NORTH 3RD DUPLEXES
THE FIREHOUSE BOZEMAN, MT
CONFIDENTIAL & PROPRIETARY 2021 PAGE 12
Thank
you.
Page 1 of 19
PURCHASE AND SALE AGREEMENT
This “Agreement” is made and entered into by and between:
“Buyer” “Seller”
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City of Bozeman
(each a “Party” and collectively the “Parties”).
“Buyer’s Agent”: “Seller’s Agent”:
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Ryan Springer
Sterling CRE Advisors Bozeman
Ryan.Springer@sterlingcreadvisors.com
406-579-5586
(each an “Agent” and collectively the “Agents”).
The following terms shall have the following meanings for purposes of this Agreement:
“Real Property”: 34 N Rouse Avenue, Bozeman MT 59715
Legal Description: Lots 15, 16, 17, 18, and 19 in Block F of
Rouse's First Addition, City of Bozeman, Gallatin County,
MT. EXCEPTING Therefrom the portion transferred to
Montana Department of Transportation for Highway Right
of Way, further described in the Bargain and Sale Deed
recorded as Document 2527031 on 10/07/2015 with the
Gallatin County Clerk and Recorder. To Be verified during
escrow.
“Purchase Price”
“Closing Date” Closing to occur within 15 days of the City of Bozeman
vacating premises.
“Escrow Agent” 7DPP\5HGIHUQ,0RQWDQD7LWOHWUHGIHUQ#PRQWDQDWLWOHFRP
“Escrow Method” Wire7UDQVIHU
“Earnest Money”
“Due Diligence Deadline” GD\VIURPGDWHRIDFFHSWHGRIIHU
“Offer Expiration Deadline” Offer will remain open (valid) until the COB approves
disapproves/offer unless rescinded in writing by Buyer prior to
City Commission approval.
Authentisign ID: 1F2D44E1-1094-EC11-A507-501AC5E43BFD
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ARTICLE 1—Purchase & Sale
1.1 Purchase. The Seller agrees to sell and the Buyer agrees to buy, on the terms and
conditions set forth in this Agreement and Schedule 1.1, all of the Seller’s right, title, and
interest in the Real Property, including all rights, improvements and fixtures located on
the Real Property and all rights, privileges, easements, and rights of way appurtenant to
the Real Property (collectively, the “Property”) excepting the Seller’s interests in water
rights 41H 61642-00 and 41H 61643-00 and excepting the existing fire pole. If Seller has
not accepted this offer by the Offer Expiration Deadline, such offer shall be deemed to
have been automatically withdrawn as of the Offer Expiration Deadline.
1.2 Good Faith Deposit: Notwithstanding that this Agreement must be ratified by the
Bozeman City Commission, no later than two (2) days after the City Manager’s signature
on this Agreement Buyer will cause the Earnest Money to be deposited with the Escrow
Agent.
1.3 Due Diligence. Buyer recognizes it has had opportunity to conduct due diligence during
the time period the Property was listed for sale. Nevertheless, Buyer shall have until the
Due Diligence Deadline to conduct inspections or reviews customary in the sale of
commercial real estate in Montana of the Real Property including the inspections and
evaluations listed on Schedule 1.2. During this period, Seller will make reasonable
accommodations for Buyer, or Buyer’s agents, to enter and inspect and evaluate the
Property. Buyer may terminate this Agreement, at Buyer’s sole and absolute discretion,
if the Property is not satisfactory and if Buyer provides notice to Seller before the
expiration of the Due Diligence Deadline. If Buyer so terminates, Buyer shall provide
Seller any reports or information relating to due diligence that were prepared by Buyer or
Buyer’s Agent.
1.4 Seller’s Deliveries. Prior to Seller’s Due Diligence Delivery Deadline, Seller shall
provide to Buyer legible copies of all material documents or contracts affecting the
Property in Seller’s possession or which are reasonably accessible to Seller.
1.5 Title. By the Seller’s Due Diligence Delivery Deadline, Seller shall deliver to the Buyer
a commitment for a standard ALTA owner’s title insurance policy issued by the Closing
Authentisign ID: 1F2D44E1-1094-EC11-A507-501AC5E43BFD
Page 3 of 19
Agent (the “Preliminary Title Commitment”) in an amount equal to the Purchase Price
commitment to insurance merchantable title to the Real Property. Buyer shall have
twenty (20) business days from the delivery of the Preliminary Title Commitment to
object to the title of the Property (a “Buyer Objection”). If Buyer so objects, Seller shall
have thirty (30) days—and the Closing Date shall be automatically extended by thirty
(30) days—to address such Buyer Objection to the satisfaction of Buyer, in Buyer’s sole
and absolute discretion.
1.6 Seller’s Title Delivery. At the closing the Seller shall convey good and marketable fee
simple title to the Real Property to the Buyer by warranty deed, free and clear of all liens,
encumbrances, easements, rights of way, restrictions, reservations, conditions, burdens,
and other defects in title (the “Warranty Deed”), except as follows (the “Exceptions”):
a.Easements, rights of way, restrictions, reservations, conditions, and burdens of
record;
b. Easements, rights of way, and encroachments which are apparent on inspection of
the Real Property or which would be disclosed by a survey of the Real Property;
c.Laws, ordinances, and regulations relating to zoning, land use, environmental
protection, and building;
d. Reservations made in patents or in acts authorizing the issuance of patents;
e.Taxes and assessments which are not yet due and payable;
f. All other conditions of title disclosed by the Preliminary Title Commitment, and
which did not receive a Buyer Objection; and
1.7 City Not Bound in Its Regulatory/Utility Authority. Buyer recognizes the City enters
this Agreements as a landowner and not in its regulatory role regarding any land use,
zoning, building inspection, subdivision, or any other circumstance where the Buyer may
need to receive regulatory approvals from the City prior to conducting any activity on the
Property after Closing. In addition, Buyer recognizes the City is a provider of certain utility
services including but not limited to water, sewer, and stormwater. As such, Buyer agrees
that noting herein binds the City to make certain regulatory approvals should the Property
be redeveloped, reused, demolished, or in any capacity wherein the City may have
regulatory or utility authority after Closing.
ARTICLE 2—Conditions to Performance
2.1 Conditions To Buyer’s Performance. The Buyer will have the right to terminate
this Agreement, and shall not be obligated to complete the purchase of the Property or to perform
Authentisign ID: 1F2D44E1-1094-EC11-A507-501AC5E43BFD
Page 4 of 19
the Buyer’s other obligations under this Agreement, unless all of the following conditions have
been satisfied or waived:
a.The Seller’s title to the Property meets the requirements set forth in this Agreement;
b. On the Closing Date the Seller executes and delivers to the Closing Agent all of the
documents which this Agreement, or the Closing Agent, requires the Seller to
execute and deliver;
c.All of the warranties and representations of Seller contained in this Agreement shall
have been true and correct when made, and shall be true and correct in all material
respects on and as of the Closing Date with the same force and effect as though
such warranties and representations had been made on and as of the Closing Date;
d. Seller shall have maintained the Property until the Closing in its condition as of the
date of Buyer’s signature hereunder, ordinary wear and tear excepted;
e.Seller delivers possession of the Property to Buyer on the Closing Date;
f. All mortgages, judgments, and liens shall be paid or satisfied by the Seller at or
prior to closing unless otherwise provided herein; and
g. No additional encumbrances, restrictions, easements or other adverse title
conditions have been placed against the title to the Property other than those
identified in the Preliminary Title Commitment.
2.2 Buyer’s Right To Rescind. The Buyer may rescind this Agreement without any
further obligation or liability hereunder before the Due Diligence Deadline or the deadline for a
Buyer Objection. In the event of the Buyer’s failure to timely reject any defect or deficiency in
writing by such deadline, Buyer will be deemed to have waived such contingency and to have
accepted the Property and Personal Property subject to any existing conditions or defects.
2.3 Conditions to Seller’s performance. The Seller will have the right to terminate this
Agreement, and shall not be required to convey the Property to the Buyer or to perform the other
obligations of the Seller under this Agreement, unless all of the following conditions have been
satisfied or waived:
a.On the Closing Date the Buyer executes and delivers to the Closing Agent all
of the documents which this Agreement, or the Closing Agent, requires the
Buyer to execute and deliver including the Purchase Price [NOTE: if offer
includes the provision of affordable housing on the Property this clause must
be amended to reflect how and when the housing will be
provided].
$))25'$%/(+2867,1*352326$/$77$&+('
On the Closing Date the Buyer executes and delivers to the Closing Agent all of
the documents which this Agreement, or the Closing Agent, requires the Buyer to
execute and deliver.
Authentisign ID: 1F2D44E1-1094-EC11-A507-501AC5E43BFD
Page 5 of 19
b.All of the warranties and representations of Buyer contained in this Agreement
shall have been true and correct when made, and shall be true and correct in all
material respects on and as of the Closing Date with the same force and effect
as though such warranties and representations had been made on and as of the
Closing Date.
c.In addition, the Buyer recognizes and agrees the sale of the Property shall be
contingent upon the Seller’s compliance with Chapter 2, Article 6, Division 5,
Bozeman Municipal Code, and the ratification of this Agreement by duly
adopted ordinance of the Bozeman City Commission pursuant to the
requirements of the Section 2.11 of the Bozeman City Charter. Final ratification
of this Agreement shall not be effective until 30 (thirty) days after final adoption
of such ordinance. Should the Bozeman City Commission fail to ratify the City
Manager’s signature on this Agreement this transaction shall be terminated
automatically without any further action of the Seller required and the Earnest
Money returned to Buyer.
2.4 Remedies—Liquidated Damages. THE PARTIES ACKNOWLEDGE THAT
THEY HAVE DISCUSSED THE TYPE AND MAGNITUDE OF DAMAGES THAT
EACH COULD SUFFER IF THIS AGREEMENT TERMINATES BECAUSE OF
THE OTHER PARTY'S BREACH OR DEFAULT HEREUNDER.
FURTHERMORE, EACH ACKNOWLEDGES THAT IT HAS NEGOTIATED THIS
TOPIC IN GOOD FAITH WITH THE OTHER AND HAS CONCLUDED THAT IT
IS EXTREMELY DIFFICULT AND IMPRACTICAL TO AFFIX A DOLLAR
AMOUNT TO DAMAGES FOR BREACH OR DEFAULT AND THEREFORE
HAVE AGREED TO THE FOLLOWING REMEDIES:
a. Seller’s Remedies in the Event of Buyer’s Beach of Default. THE
PARTIES AGREE THAT SELLER'S SOLE REMEDY, AT LAW OR IN
EQUITY, IN THE EVENT OF A DEFAULT OR BREACH BY BUYER,
IS FOR SELLER TO KEEP THE EARNEST MONEY DEPOSIT AND
ALL INTEREST EARNED THEREON. THEREAFTER THIS
AGREEMENT SHALL TERMINATE AND SELLER SHALL HAVE NO
FURTHER RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT
EXCEPT FOR THOSE THAT ARE EXPRESSLY STATED TO
SURVIVE THE TERMINATION THEREOF.
b.Buyer's Remedies in the Event of Seller's Breach or Default. THE
PARTIES AGREE THAT BUYER'S SOLE REMEDY, AT LAW OR IN
EQUITY, IN THE EVENT OF A DEFAULT OR BREACH BY SELLER
UNDER THIS AGREEMENT, IS FOR BUYER TO HAVE RETURNED
Authentisign ID: 1F2D44E1-1094-EC11-A507-501AC5E43BFD
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TO IT THE EARNEST MONEY DEPOSIT AND ALL INTEREST
EARNED THEREON AS LIQUIDATED DAMAGES (NOT AS A
PENALTY.
Article 3—Closing
3.1 Escrow. The Earnest Money shall be deposited by the respective Agent with the
Escrow Agent within two (2) business days of the Offer Expiration Deadline according to the
Escrow Method.
3.2 Taxes and Assessments. Seller and Buyer shall prorate taxes, as well as pre-paid
rents, if any, as of the Closing Date, unless otherwise specified on Schedule 3.2. The prior year’s
taxes should be used for proration in the event that the current year taxes are not available, and
shall not be adjusted based on any subsequent change in assessed value. All non-perpetual Special
Improvement Districts or Association Special Assessments will be paid off at Closing by Seller,
unless specified otherwise pursuant to Schedule 3.2.
3.3 Closing Date. Buyer recognizes the Property currently serves as the City’s Fire
Station 1. Buyer also recognizes the City is currently constructing the Bozeman Public Safety
Center (BPSC) with an estimated completion date of July 1,2022. Buyer enters into this
Agreement recognizing the Buyer may not take ownership of the Property until such time as the
City completes construction of the BPSC and Fire Station 1 has relocated to the BPSC. As such,
Buyer recognizes the Closing Date is subject to change by the City if the BPSC is not completed.
Buyer agrees the City may unilaterally extend the Closing Date to a date reasonably necessary to
allow the City to complete construction of the BPSC and move Fire Station 1 to the BPSC. The
City must take all reasonable steps necessary to complete the construction of the BPSC and move
Fire Station 1. The Buyer may request updates from the City on the status of the BPSC construction
and relocation of Fire Station 1.
Recognizing the above, the Parties anticipate closing this transaction on the Closing Date. In
addition to the City’s authority to extend the Closing Date for issues related to the BPSC and
relocation of Fire Station 1, either Party may extend the Closing Date by ten (10) business days,
by prior notice, unless such extension would cause adverse tax consequences to other Party (i.e. in
the case of an exchange pursuant to 26 USC § 1031) and the other Party has provided notice of
such implications by the Due Diligence Deadline.
3.4 Closing Costs. Buyer and Seller shall equally split all costs related to conducting
the closing and the fee of the Closing Agent. Seller shall pay the cost for a standard 2006 ALTA
® Owner’s Policy for Title Insurance, with any enhancements in such coverage to be paid by
Buyer.
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3.5 Allocation of the Purchase Price: Buyer and Seller shall report the Purchase Price
to applicable tax authorities in accordance with the allocation attached as Schedule 3.5, if provided.
3.6 Seller Documents to be Delivered at Closing. On the Closing Date, the Seller
shall deliver to Buyer:
a.The Warranty Deed with a realty transfer certificate recognizing the Seller reserves
unto itself water rights listed herein;
b. A title insurance policy in the amount of the Purchase Price of the Real Property to
insure the Buyer’s title to the Real Property;
3.7 Buyer Closing Deliveries. On the Closing Date, the Buyer shall deliver to the
Escrow Agent the Purchase Price in immediately available funds.
3.8 Purchase Price Adjustment. The Earnest Money and any accrued interest shall
be applied to the Purchase Price.
Article 4—Representations and Warranties
4.1 Representations and Warranties of Seller. The Seller hereby warrants, represents, and
covenants that all of the following warranties and representations are true and correct as
of the date of Seller’s signature hereunder. For purposes of this section “knowledge”
shall mean the due and reasonable inquiry of Seller.
a.Authority of Seller. Seller is the owner of the Property and/or has the full right,
power and authority to sell, convey, and transfer the Property to Buyer as
provided herein, and to perform Seller’s obligations hereunder. The execution,
delivery, and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary organizational action on the part of Seller. Notwithstanding the above,
the Buyer recognizes and agrees the sale of the Property will be subject to and
contingent upon fulfillment of provisions of Section 2.3.
b.Compliance. Except as disclosed to Buyer, by the Seller Delivery Deadline,
Seller has no knowledge of any aspect or condition of the Property which violates
applicable laws, rules, regulations, codes or covenants, conditions or restriction,
or of improvements or alterations made to the Property without a permit where
one was required, or of any unfulfilled order or directive of any applicable
governmental agency or casualty insurance company requiring any investigation,
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remediation, repair, maintenance, or improvement to be performed on the
Property.
c.Possessory Rights. Except as disclosed to Buyer by the Seller Delivery
Deadline, Seller has no knowledge of anyone having any rights in the Property
adverse to the Seller.
d.Liens. There are no unsatisfied mechanics’ or materialmens’ lien rights
concerning the Property, and none of the personal property to be conveyed to
Buyer under this Agreement, are subject to any lien or encumbrance affecting
such, except as disclosed in writing to Buyer.
e.Actions, Suits, or Proceedings. Seller, and no agent of Seller, has any
knowledge of any actions, suits, or proceedings which are pending or threatened
before any commission, board, bureau, agency, arbitrator, court, or tribunal that
would affect the Property or Seller’s ability to convey the Property to Buyer
hereunder.
f.Bankruptcy. Seller, nor any equity owner of Seller, is the subject of a
bankruptcy, insolvency, conservatorship, or probate proceeding.
g.Conflicts. Except as disclosed to Buyer by the Seller Delivery Deadline, no other
person has any right or option to acquire any portion of the Property and the
execution, delivery and performance of this Agreement by Owner and the
consummation by it of the transactions contemplated hereby will (i) not violate
any provision of its organizational documents or any applicable law, rule,
regulation, order or comparable requirement; or (ii) require notice to or the
consent, authorization, approval or order of any person, except for notices that
have been given and consents that have been obtained.
h.Access and disputes. Except as disclosed to Buyer by the Seller Delivery
Deadline, the Seller has legal and physical access to the Property which is
adequate for the current use of the Property, and the Seller, and no agent of Seller,
knows of any dispute or disagreement which could threaten access to the
Property.
i.Adverse Change. Except as disclosed to Buyer by the Seller Delivery Deadline,
the Seller has no information or knowledge of any action by adjacent landowners,
or natural or artificial conditions on the Property or adjacent property, which
could have a material adverse effect upon the Property or its value. There is no
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significant adverse fact or condition relating to the Property which has not been
specifically disclosed in writing by the Seller to the Buyer.
j.Incomplete Inaccurate or Misleading Information. The Seller doesn’t know of
any materially incomplete, inaccurate, or misleading information in the
documents, lists, and reports furnished to the Buyer under this Agreement.
k.Hazardous Substances on the Property. Except as disclosed to Buyer by the
Seller Delivery Deadline, that with respect to the period during which the Seller
owned or occupied the Property, and to the knowledge of the Seller with respect
to the time before the Seller owned or occupied the Property, no hazardous
substances have been manufactured, processed, treated, handled, stored, installed,
recycled, disposed, or released, intentionally or unintentionally, on the Property,
and there have been no activities or events on the Property which could subject
the Seller, the Buyer, or any subsequent owner of the Property to damages,
penalties, injunctive relief, or cleanup or response costs under any environmental
law or common law theory of liability. To the knowledge of Seller, no hazardous
substances have been manufactured, processed, treated, handled, stored, installed,
recycled, disposed, or released, intentionally or unintentionally, on land which is
adjacent to the Property. Except as disclosed by the Seller prior to the Seller
Delivery Deadline, for the purposes of this paragraph, “Hazardous Substances”
shall mean any and all substances, materials, chemicals, or wastes that now or
hereafter are classified or considered to be hazardous or toxic under any
Environmental Law, or that are or become regulated by any governmental
authority because of toxicity, infectiousness, radioactivity, explosiveness,
ignitability, corrosiveness, or reactivity under any environmental law applicable
to the Property, and shall also include: (a) gasoline, diesel fuel, and any other
petroleum hydrocarbons; (b) asbestos and asbestos containing materials, in any
form, whether friable or non-friable; (c) polychlorinated biphenyls; (d) radon gas;
and (e) flammable liquids and explosives.
l.Broker. Except for the Seller’s Broker, no broker, finder, or investment banker is
entitled to any brokerage, finder’s, or other fee or commission in connection with
the transactions contemplated by this Agreement based upon arrangements made
by or on behalf of Seller.
m.Statutory Disclosures. Except for the disclosures provided on Schedule 4.1(n),
no other disclosures are required by Seller.
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4.2 Representation and Warranties of Buyer. The Buyer hereby warrants, represents, and
covenants that all of the following warranties and representations are true and correct as
of the date of Buyer’s signature hereunder. For purposes of this section “knowledge”
shall mean the due and reasonable inquiry of Buyer.
a.Authority of Buyer. Buyer has the full right, power and authority to purchase
and acquire the Property from Seller as provided herein, and to perform Buyer’s
obligations hereunder. The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by all necessary organizational action on the part
of Seller.
b.Broker. Except for Buyer’s Broker, no broker, finder, or investment banker is
entitled to any brokerage, finder’s, or other fee or commission in connection with
the transactions contemplated by this Agreement based upon arrangements made
by or on behalf of Buyer.
c.Due Diligence. Except as expressly set forth in this Agreement to the contrary,
Buyer is purchasing the Property in its existing condition "AS IS, WHERE-IS,
AND WITH ALL FAULTS” with respect to all facts, circumstances, conditions
and defects, and, Seller has no obligation to determine or correct any such facts,
circumstances, conditions or defects or to compensate Buyer for same. Seller has
specifically bargained for the assumption by Buyer of all responsibility to
investigate the Property, and of all risk of adverse conditions and has structured
the Purchase Price and other terms of this Agreement in consideration thereof.
Buyer has undertaken all such investigations of the Property as Buyer deems
necessary or appropriate under the circumstances as to the status of the Property
and based upon same, Buyer is and will be relying strictly and solely upon such
inspections and examinations and the advice and counsel of its own consultants,
agents, legal counsel and officers. Buyer is and will be fully satisfied that the
Purchase Price is fair and adequate consideration for the Property and, by reason
of all the foregoing, Buyer assumes the full risk of any loss or damage (subject to
Section 5.3 below) occasioned by any fact, circumstance, condition or defect
pertaining to the Property.
d.No Warranty or Other Representation. Except as expressly set forth in this
Agreement to the contrary, Seller hereby disclaims all warranties of any kind or
nature whatsoever INCLUDING, WITHOUT LIMITATION, WARRANTIES
OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES,
whether expressed or implied including, without limitation warranties with
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respect to the Property. Except as is expressly set forth in this Agreement to the
contrary, Buyer acknowledges that it is not relying upon any representation of any
kind or nature made by Seller, or Seller's Agent, or any of their respective direct
or indirect officers, directors, employees or agents (collectively, the "Seller
Related Parties") with respect to the Property, and that, in fact, except as
expressly set forth in this Agreement to the contrary, no such representations were
made. To the extent required to be operative, the disclaimers and warranties
contained herein are "conspicuous" disclaimers for purposes of any applicable
law, rule, regulation or order.
Article 5—Additional Provisions
5.1 Assignment. This Agreement may NOT be assigned by the Buyer without the prior written
consent of the Seller. Any other assignment or purported assignment of the Agreement
shall be null and void.
5.2 1031 Exchange. In connection with any 1031 exchange or exchanges, the Buyer may
assign its respective rights under this Agreement to a qualified intermediary or exchange
accommodation titleholder, as required by IRS Regulations. No such assignment will
modify or release any of the obligations of either the Buyer or the Seller under this
Agreement. Notwithstanding any such assignment or assignments, the Seller will convey
the Property directly to the Buyer. The Parties each agree to cooperate in any exchange
performed by the other party provided that they incur no additional liability, cost, or
expense as a result of the cooperation, but neither Party will be obligated to acquire or
convey any other property as part of the other Party’s 1031 exchange.
5.3 Risk of Loss. All loss or damage to the Property shall be retained by Seller until the
Closing.
5.4 Entire Agreement. This Agreement, together with any other documents incorporated
herein by reference and all related exhibits and schedules, constitute the sole and entire
agreement of the Parties to this Agreement with respect to the subject matter contained
herein and therein, and supersedes all prior and contemporaneous understandings,
agreements, representations, and warranties, both written and oral, with respect to such
subject matter.
5.5 Amendment and Modification. This Agreement may only be amended, modified, or
supplemented by an agreement in writing signed by each Party hereto.
5.6 Waiver. No waiver by any party of any of the provisions hereof shall be effective unless
explicitly set forth in writing and signed by the party so waiving. No waiver by any party
shall operate or be construed as a waiver in respect of any failure, breach, or default not
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expressly identified by such written waiver, whether of a similar or different character, and
whether occurring before or after that waiver. No failure to exercise, or delay in exercising,
any right, remedy, power, or privilege arising from this Agreement shall operate or be
construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power, or privilege hereunder preclude any other or further exercise thereof or the exercise
of any other right, remedy, power, or privilege.
5.7 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto
and their respective successors and permitted assigns, and nothing herein, express or
implied, is intended to or shall confer upon any other person or entity any legal or equitable
right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
5.8 Governing Law & Forum. All matters arising out of or relating to this Agreement shall
be governed by and construed in accordance with the laws of the State of Montana without
giving effect to any choice or conflict of law provision or rule (whether of the State of
Montana or any other jurisdiction).
5.9 Submission to Jurisdiction. The Parties hereby agree that any suit, action, or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in connection
with this Agreement or the transactions contemplated hereby, whether in contract, tort or
otherwise, shall be brought in the United States District Court for the District of Montana
or district court for the State of Montana, so long as one of such courts shall have subject-
matter jurisdiction over such suit, action, or proceeding. Each of the Parties hereby
irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the
fullest extent permitted by law, any objection that it may now or hereafter have to the laying
of the venue of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding that is brought in any such court has been brought in an inconvenient
form. Service of process, summons, notice or other document by certified mail to the
address set forth in Section 5.19 shall be effective service of process for any suit, action,
or other proceeding brought in any such court.
5.10 Attorneys’ Fees. In the event that any party institutes any suit, action, or proceeding,
including arbitration, against the other Party to enforce the covenants contained in this
Agreement (or obtain any other remedy in respect of any breach of this Agreement) or
arising out of or relating to this Agreement, the prevailing party in the suit, action or other
proceeding shall be entitled to receive, in addition to all other damages to which it may be
entitled, the costs incurred by such party in conducting the suit, action, or proceeding,
including reasonable attorneys’ fees and expenses and court costs. This includes, subject
to any limits under applicable law, attorneys’ fees for bankruptcy proceedings (including
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efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services.
5.11 Further Assurances. Each of the Parties hereto shall, and shall cause their respective
affiliates to, execute and deliver such additional documents, instruments, conveyances, and
assurances and take such further actions as may be required to carry out the provisions
hereof and give effect to the transactions contemplated hereby.
5.12 Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall be deemed to be one and the same
agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means
of Electronic Transmission shall be deemed to have the same legal effect as delivery of an
original signed copy of this Agreement (e.g. DocuSign). The Parties have consented to
execute this Agreement electronically in conformance with the Montana Uniform
Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA.
5.13 Time of the Essence. Time shall be of the essence in this Agreement.
5.14 Remedies. Seller’s sole and exclusive remedy is monetary damages against Buyer. Buyer
may either require Seller to specifically perform, or recover monetary damages against
Seller as provided for in Section 2.4.
5.15 Severability. If any term or provision of this Agreement is invalid, illegal, or
unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not
affect any other term or provision of this Agreement or invalidate or render unenforceable
such term or provision in any other jurisdiction. Upon such determination that any term or
other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the parties as
closely as possible in a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the greatest extent
possible.
5.16 Relationship of the Parties. Nothing herein shall be construed to create a joint venture or
partnership between the parties hereto or an employer/employee or agency relationship.
Neither party hereto shall have any express or implied right or authority to assume or create
any obligations on behalf of or in the name of the other party or to bind the other party to
any contract, agreement, or undertaking with any third party.
5.17 Confidentiality. Until the Closing, Buyer shall treat the information disclosed to it by
Seller, or otherwise gained through Buyer's access to the Property and Seller's books and
records, as confidential, giving it the same care as Buyer's own confidential information,
and make no use of any such disclosed information not independently known to Buyer
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except in connection with the transactions contemplated hereby; provided, however, that
Buyer may, without the consent of Seller, disclose such information: (a) to its partners,
members, managers, employees, advisors, consultants, attorneys, accountants, prospective
and actual investors, and lenders (the "Transaction Parties"), so long as any such
Transaction Parties to whom disclosure is made shall also agree to keep all such
information confidential in accordance with the terms hereof and (b) if disclosure is
required by law or by regulatory or judicial process, provided that in such event, Buyer
shall notify Seller of such required disclosure, shall exercise all commercially reasonable
efforts to preserve the confidentiality of the confidential information, including, without
limitation, reasonably cooperating with Seller (at Seller's sole expense) to obtain an
appropriate order or other reliable assurance that confidential treatment will be accorded
such confidential information by such tribunal and shall disclose only that portion of the
confidential information which Buyer is legally required to disclose. Notwithstanding the
foregoing, the confidentially provisions of this Section 5.17 shall not apply to any
information or document which: (i) is or becomes generally available to the public other
than as a result of a disclosure in violation of this Agreement or (ii) subject to compliance
with clause (b) in this Section 5.17 above, is required by law or court order to be disclosed.
In the event of a termination of this Agreement, Buyer shall promptly return all such
confidential information to Seller.
5.18 Notices & Communication. All communication between the Parties regarding this
transaction shall be between the Agents and be conducted via email at the address(es) set
forth on the first page of this Agreement and to the emails or cloud sites identified on
Schedule 5.17. Any notices, requests, consents, claims, demands, waivers, and other
communications hereunder (each, a “Notice”) shall be in writing and addressed to the party
at the email addresses set forth on the first page of this Agreement, with cc to their
respective Agent (or to such other email address that may be designated by the receiving
party from time to time in accordance with this Section) and sent to the party and their
respective Agent at the mailing address set forth on the first page of this Agreement. Except
as otherwise provided in this Agreement, a Notice is effective only if the party giving the
Notice has complied with the requirements of this Section.
5.19 Survival. The provisions of Sections 2.4, Article IV, and this Article V, shall survive the
termination of this Agreement and the Closing.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the
date first written above by their respective officers thereunto duly authorized.
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Seller:
By:
Name:
Title:
Date:
Buyer:
By:
Name:
Title:
Date:
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Schedule 1.1—Additional Terms%X\HUSODQVWRWDNHDGYDQWDJHRIERWKLQFHQWLYHVWKH&LW\LVRIIHULQJ
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Schedule 1.2—Specific Inspections
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,QDGGLWLRQ%X\HUPD\FKRRVHWRFRQVXOWZLWKWKHIROORZLQJSURIHVVLRQDOVSULRUWRH[SLUDWLRQRI
GXHGLOLJHQFH SOXPEHU+9$&URRIHUVWUXFWXUDOHQJLQHHUFLYLOHQJLQHHUJHRWHFKQLFDO
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Schedule 2.4—Additional Seller Remedies Above Buyer’s Escrow Amount
Schedule 3.2—Alternative proration of pre-paid rents and taxes and Special
Assessment Treatment
Schedule 3.5—Intentionally Omitted
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Schedule 4.1(n)—Seller’s Form Statutory Disclosures
[Various statutory disclosures depending on the nature of the Property, and the presence of
residential units]
RADON GAS: RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT,
WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY
PRESENT HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME.
LEVELS OF RADON THAT EXCEED FEDERAL GUIDELINES HAVE BEEN FOUND IN
BUILDINGS IN MONTANA. ADDITIONAL INFORMATION REGARDING RADON AND
RADON TESTING MAY BE OBTAINED FROM YOUR COUNTY OR STATE PUBLIC
HEALTH UNIT.
MOLD DISCLOSURE: There are many types of mold. Inhabitable properties are not, and
cannot be, constructed to exclude mold. Moisture is one of the most significant factors
contributing to mold growth. Information about controlling mold growth may be available from
your county extension agent or health department. Certain strains of mold may cause damage to
property and may adversely affect the health of susceptible persons, including allergic reactions
that may include skin, eye, nose, and throat irritation. Certain strains of mold may cause
infections, particularly in individuals with suppressed immune systems. Some experts contend
that certain strains of mold may cause serious and even life-threatening diseases. However,
experts do not agree about the nature and extent of the health problems caused by mold or about
the level of mold exposure that may cause health problems. The Centers for Disease Control and
Prevention is studying the link between mold and serious health conditions. The seller, landlord,
seller's agent, buyer's agent, or property manager cannot and does not represent or warrant the
absence of mold. It is the buyer's or tenant's obligation to determine whether a mold problem is
present. To do so, the buyer or tenant should hire a qualified inspector and make any contract to
purchase, rent, or lease contingent upon the results of that inspection.
A seller, landlord, seller's agent, buyer's agent, or property manager who provides this mold
disclosure statement, provides for the disclosure of any prior testing and any subsequent
mitigation or treatment for mold, and discloses any knowledge of mold is not liable in any action
based on the presence of or propensity for mold in a building that is subject to any contract to
purchase, rent, or lease.
LEAD BASED PAINT. Residential real property on which a residential dwelling was built
prior to 1978 may present exposure to lead from lead-based paint that may place young children
at risk for developing lead poisoning. Lead poisoning in young children may produce permanent
neurological damage, including learning disabilities, reduced intelligence quotient, behavioral
problems, and impaired memory. Lead poisoning also poses a particular risk to pregnant
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women. A risk assessment or inspection for possible lead-based paint hazards is recommended
prior to occupancy of this Premises. Risk assessments for lead based paint are the responsibility
of Buyer or the prospective buyer. Information on protecting your family from lead paint risks
can be found at: https://www.epa.gov/sites/production/files/2017-
06/documents/pyf_color_landscape_format_2017_508.pdf
The Property is equipped with __ smoke detectors [and Carbon monoxide detectors].
METHAMPHETAMINE CONTAMINATION DISCLOSURE STATEMENT: Pursuant to
the provisions of Title 75, Chapter 10, Part 13 of Montana Code Annotated, certain owners of
real property which has been contaminated with hazardous chemical residues created by the
clandestine manufacture of methamphetamine are required to notify any acquiring party of such
contamination and the certification of any remediation or decontamination project. Seller
represents that it has no knowledge of any such contamination of the Property, nor has it
received any notice of any such contamination of the Property. Seller represents that it has no
knowledge of the presence of methamphetamine in any habitable structure, nor has it received
any notice that methamphetamine is present in any habitable structure.
Megan’s Law Disclosure Statement. Pursuant to the provisions of Title 46, Chapter 23, Part 5
of the Montana Code Annotated, certain individuals are required to register their address with the
local law enforcement agencies as part of Montana's Sexual and Violent Offender Registration
Act. In order to provide the public with information so they can protect themselves and their
children from convicted sexual and violent offenders, the Montana Department of Justice
maintains an electronic database entitled the "Montana Sexual or Violent Offender Registry"
which can be found at http://www.doj.mt.gov/svor/. Buyer agrees to be solely responsible to
conduct any investigation regarding the existence of any individuals residing near the Property
that are registered as part of Montana's Sexual and Violent Offender Registration.
Noxious Weeds Disclosure Statement. The Buyer of the Property acknowledges Buyer is aware
that all property in the State of Montana potentially contains the existence of noxious weeds.
Further, the laws of the State of Montana require owners of property within this state to control,
and to the extent possible, eradicate noxious weeds. Pursuant to the provisions of Title 7, Chapter
22, Section 2116 of the Montana Code Annotated, it is unlawful for any person to permit any
noxious weed to propagate or go to seed on the person's land unless they adhere to a noxious weed
management plan as provided for under Montana law. Buyer acknowledges and agrees that before
purchasing the Property, Buyer is solely responsible to conduct any investigation of the Property
regarding the existence or potential existence of noxious weeds on the Property. The Seller cannot
and does not represent or warrant the absence of noxious weeds on the Property. It is the Buyer’s
obligation to determine whether noxious weeds are present. To do so, the Buyer may hire a
qualified inspector and make this Agreement contingent upon the results of that inspection.
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Schedule 5.17—Additional Forms of Communication and Data Exchange
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Offer | GMD
February 20, 2022
Ryan Springer, CCIM
Sterling CRE Advisors
895 Technology Boulevard, Suite 101
Bozeman, MT 59718
Re: Bozeman Fire Station, 34 North Rouse Avenue
Mr. Springer,
In collaboration with HRDC in Bozeman, GMD Development is excited to present our
proposal and purchase agreement for the Bozeman Fire #1 located at 34 North Rouse
Avenue and creating much needed affordable housing in this center of town that
depends heavily on service/workforce workers. We look forward to working closely in
partnership with the city to transform this important city owned property through to its
next evolution as critical housing for Bozeman’s workforce.
As mentioned in the RFP Summary, due to the high quality of life Bozeman has
experienced very rapid growth over the past 10 years (41.6%) and has attracted many
high paying employers (25.6% of households earning in excess of $100,000 annually).
Housing prices have increased nearly 50% just the past two years and rental rates for
apartments have also experienced similar steep increases.
In many ways Bozeman is the model of economic success but has resulted in an overall
housing crisis that is felt most acutely for those at the lower earnings levels. Bozeman is
not alone in this dire situation where those service workers that communities depend
on to provide our basic daily services to function, are unable to find housing they can
afford, and employers are unable to find workers to support their businesses.
For the past 7 years, GMD Development has been very active in the Bozeman market. In
2017 we completed Larkspur Commons, a 136-family affordable apartment and we
currently have two projects under construction, a 136 family affordable apartments,
Arrowleaf Park, adjacent to the 96 apartment senior affordable apartments, Perennial
Park. These are slated to open in the spring of 2022. In addition, over the past 10
years, GMD Development has completed 9 affordable housing projects in throughout
Montana with a total of 644 apartments.
GMD Development is a mission-based for-profit development company focused on the
creation and preservation of affordable housing throughout the northwest. GMD and
its principals have completed a total of 5,468 affordable apartments (GMD Project List
attached).
Over the past several months we have been researching the potential to create
affordable housing at the Fire Station site. Overall, we feel this is the perfect location
for affordable/workforce housing. The site is within walking distance to service jobs on
surrounding Main Street and MSU, as well as schools (Hawthorne Elementary), on
several bus routes, parks, and the public library. Locating affordable housing in central
locations reduces the dependence and cost of transportation for residents.
Based on our analysis to date, we propose a development with 60 one-bedroom
apartments for households at 50%, 60% and 70% of the area median income (however
potentially up to 100% of area median income) in a single, elevator served, 5-story
building. Also included would be approximately 2,500 square feet of leasing
office/retail. Parking would be a mix of interior, exterior surface, city lot leases and car
share. A recorded regulatory agreement would ensure that this property remain
affordable for at least 30 years.
It’s clear that Bozeman needs significantly more affordable housing and creating true
affordable housing in today’s environment is extremely challenging. As developers of
affordable housing we are faced with the headwinds of rising interest rates,
construction and labor costs at historic highs, supply chain issues causing uncertainty,
and limited programs to support housing.
Despite these challenges we believe that there is a path forward to create affordable
housing at this critical location in the heart of Bozeman, but will require collaboration
with the city to make this a reality. Below are the conditions that would be needed for
feasibility:
Purchase price of $2,916,000. We anticipate working with the city staff during
the due diligence period to structure in an optimal way to maximize benefits of
housing tax credits such as potentially allocating a portion of the price as fees to
the city.
Request a city loan of 90% of purchase price be made available (10% cash from
buyer), with an 18-month term and 2-three month extensions for $25,000 each,
at an interest rate of 0% plus any servicing fees charged to the city up to 1%.
This loan will be repaid at the closing of the tax credit partnership. The purpose
of this land acquisition loan is to allow sufficient time to pursue an allocation of
low-income housing tax credits and other potential funding sources for
feasibility.
Land closing to occur no later than June 30, 2022.
The primary objective will be to provide rental housing for households with
earnings between 50-70% of area median income and receive an allocation of
low-income housing tax credits, however, flexibility may be needed to offer a
portion or all of the units up to 100% of the area median income to offset higher
interest rates or higher development costs.
A restrictive use agreement will be recorded at the land closing to ensure
affordability for residents at or below 100% of area median income. Additional
regulatory agreements may be recorded according to the Montana Board of
Housing’s requirements associated with housing tax credits. Compliance would
be enforced by MBOH for the duration of the restrictive covenants.
Earnest money deposit of $50,000 at the end of the Due Diligence Period and to
be applied to the purchase price at closing.
Due diligence period of 60 days.
A reduced parking requirement is critical for feasibility: the initial site plan
(attached) indicates a potential of 14 exterior surface stalls, and up to 21 interior
stalls for a total of 35 parking spaces. Any additional parking would require a 2nd
level of concrete structured garage that would be prohibitively expensive and
financially infeasible. We feel this reduced parking requirement is supportable
due to the central, walkable location and adjacent bus routes. In addition to the
city parking garage stalls we envision offering a number of car share alternatives.
The net affordable rents will be significantly below market and offer residents a
lifestyle less dependent on automobiles with considerable monthly budget
savings.
Option to lease up to 12 parking stalls at the city garage and potentially City Hall
and buyer agrees that these stalls will be “last in” and requested only if needed.
$1.6 million in funding from the Downtown Bozeman Tax Increment Financing
District. We request that these funds be made available to buyer after land
closing on a drawn down basis to pay eligible costs per 7-15-4288, MCA. This TIF
District funding will be provided to HRDC, our non-profit housing partner who in
turn will lend the funds to the project.
GMD Development is proud of the affordable housing that we have been fortunate to
develop in Bozeman and thankful for the continued support of the city. In many ways
we see the creation of new affordable housing more challenging than ever, but we
believe from the many lessons we have learned over the past several decades
developing affordable housing and with key collaboration with the city we can continue
to rise to meet the pressing housing needs in the community.
We look forward to discussing our proposed plans and the materials attached.
Regards,
Steve Dymoke
Partner, GMD Development
OWNER NAME PROJECT NAME LOCATION UNITS STATUS FINANCING TYPE INVOLVEMENT Partners
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GMD DEVELOPMENT, LLC
Project Experience List
PROJECT TYPE
Updated September 2021
OWNER NAME PROJECT NAME LOCATION UNITS STATUS FINANCING TYPE INVOLVEMENT PartnersPROJECT TYPE
SHEET NUMBERPROJECT CODEPROJECT ADDRESSARCHITECT RETAINS COPYRIGHT TO THESE DRAWINGS.DRAWINGS ARE ONLY FOR USE FOR PROJECT NAMED ONDRAWING SHEET AND MAY NOT BE REPRODUCED OR USEDFOR OTHER PURPOSES WITHOUT WRITTEN PERMISSIONFROM ARCHITECT.A000GBNGMD BOZEMANCONSULTINGSITE PLAN34 NORTH ROUSEAVENUESITE ANALYSIS106 EAST BABCOCK STREETSUITE 1ABOZEMAN, MT 59715SHEET NAMEPROJECT NAMEDRAWING REVISIONSDRAWING ISSUE DATEDRAWING ISSUED FOR10.8.2021PHONE: (406) 582-8988NAA0.060 UNITS - 5 STORIES(12) - 1 BEDROOMS A FLOOR 680 NET SF PER UNIT (INCLUDES 60 SF DECK)2,500 NET SF OF RETAIL/OFFICE1 BEDROOM UNITS = 100SF OPEN SPACE6,000SF TOTAL (HALF IN DECKS) ROOF AMENITY LIKELY REQUIRED35 PARKING SPACES ONSITE 21 STORAGE LOCKERS
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PURCHASE AND SALE AGREEMENT
This “Agreement” is made and entered into by and between:
“Buyer” and “Seller”
GMD Development LLC
520 Pike Street, Suite 1010
Seattle, WA 98101
steve@gmddevelopment.com
City of Bozeman
(each a “Party” and collectively the “Parties”).
“Buyer’s Agent”: “Seller’s Agent”:
Marley McKenna, Katie Adams
McKenna Adams Commercial Realty
Katie.adams406@gmail.com
(406) 581-7562
Ryan Springer
Sterling CRE Advisors Bozeman
Ryan.Springer@sterlingcreadvisors.com
406-579-5586
(each an “Agent” and collectively the “Agents”).
The following terms shall have the following meanings for purposes of this Agreement:
“Real Property”: 34 N Rouse Avenue, Bozeman MT 59715
Legal Description: Lots 15, 16, 17, 18, and 19 in Block F of
Rouse's First Addition, City of Bozeman, Gallatin County,
MT. EXCEPTING Therefrom the portion transferred to
Montana Department of Transportation for Highway Right
of Way, further described in the Bargain and Sale Deed
recorded as Document 2527031 on 10/07/2015 with the
Gallatin County Clerk and Recorder. To Be verified during
escrow.
“Purchase Price” $2,916,000
“Closing Date” Closing to occur no later than June 30, 2022.
“Escrow Agent” Stewart Title Southwestern Montana
“Escrow Method” Wire to escrow;
“Earnest Money” $50,000; non-refundable after Due Diligence Deadline and
applicable to purchase price; refundable to Buyer if Seller
defaults.
“Due Diligence Deadline” 60 days from fully executed purchase agreement and COB
approval
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“Offer Expiration Deadline” Offer will remain open (valid) until the COB approves
disapproves/offer unless rescinded in writing by Buyer prior to
City Commission approval.
ARTICLE 1—Purchase & Sale
1.1 Purchase. The Seller agrees to sell and the Buyer agrees to buy, on the terms and
conditions set forth in this Agreement and Schedule 1.1, all of the Seller’s right, title, and
interest in the Real Property, including all rights, improvements and fixtures located on
the Real Property and all rights, privileges, easements, and rights of way appurtenant to
the Real Property (collectively, the “Property”) excepting the Seller’s interests in water
rights 41H 61642-00 and 41H 61643-00 and excepting the existing fire pole. If Seller
has not accepted this offer by the Offer Expiration Deadline, such offer shall be deemed
to have been automatically withdrawn as of the Offer Expiration Deadline.
1.2 Good Faith Deposit: Notwithstanding that this Agreement must be ratified by the
Bozeman City Commission, no later than two (2) days after the City Manager’s signature
on this Agreement Buyer will cause the Earnest Money to be deposited with the Escrow
Agent.
1.3 Due Diligence. Buyer recognizes it has had opportunity to conduct due diligence during
the time period the Property was listed for sale. Nevertheless, Buyer shall have until the
Due Diligence Deadline to conduct inspections or reviews customary in the sale of
commercial real estate in Montana of the Real Property including the inspections and
evaluations listed on Schedule 1.2. During this period, Seller will make reasonable
accommodations for Buyer, or Buyer’s agents, to enter and inspect and evaluate the
Property. Buyer may terminate this Agreement, at Buyer’s sole and absolute discretion,
if the Property is not satisfactory and if Buyer provides notice to Seller before the
expiration of the Due Diligence Deadline. If Buyer so terminates, Buyer shall provide
Seller any reports or information relating to due diligence that were prepared by Buyer or
Buyer’s Agent.
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1.4 Seller’s Deliveries. Prior to Seller’s Due Diligence Delivery Deadline, Seller shall
provide to Buyer legible copies of all material documents or contracts affecting the
Property in Seller’s possession or which are reasonably accessible to Seller.
1.5 Title. By the Seller’s Due Diligence Delivery Deadline, Seller shall deliver to the Buyer
a commitment for a standard ALTA owner’s title insurance policy issued by the Closing
Agent (the “Preliminary Title Commitment”) in an amount equal to the Purchase Price
commitment to insurance merchantable title to the Real Property. Buyer shall have
twenty (20) business days from the delivery of the Preliminary Title Commitment to
object to the title of the Property (a “Buyer Objection”). If Buyer so objects, Seller shall
have thirty (30) days—and the Closing Date shall be automatically extended by thirty
(30) days—to address such Buyer Objection to the satisfaction of Buyer, in Buyer’s sole
and absolute discretion.
1.6 Seller’s Title Delivery. At the closing the Seller shall convey good and marketable fee
simple title to the Real Property to the Buyer by warranty deed, free and clear of all liens,
encumbrances, easements, rights of way, restrictions, reservations, conditions, burdens,
and other defects in title (the “Warranty Deed”), except as follows (the “Exceptions”):
a. Easements, rights of way, restrictions, reservations, conditions, and burdens of
record;
b. Easements, rights of way, and encroachments which are apparent on inspection of
the Real Property or which would be disclosed by a survey of the Real Property;
c. Laws, ordinances, and regulations relating to zoning, land use, environmental
protection, and building;
d. Reservations made in patents or in acts authorizing the issuance of patents;
e. Taxes and assessments which are not yet due and payable;
f. All other conditions of title disclosed by the Preliminary Title Commitment, and
which did not receive a Buyer Objection; and
1.7 City Not Bound in Its Regulatory/Utility Authority. Buyer recognizes the City enters
this Agreements as a landowner and not in its regulatory role regarding any land use,
zoning, building inspection, subdivision, or any other circumstance where the Buyer may
need to receive regulatory approvals from the City prior to conducting any activity on the
Property after Closing. In addition, Buyer recognizes the City is a provider of certain utility
services including but not limited to water, sewer, and stormwater. As such, Buyer agrees
that noting herein binds the City to make certain regulatory approvals should the Property
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be redeveloped, reused, demolished, or in any capacity wherein the City may have
regulatory or utility authority after Closing.
ARTICLE 2—Conditions to Performance
2.1 Conditions To Buyer’s Performance. The Buyer will have the right to terminate this
Agreement, and shall not be obligated to complete the purchase of the Property or to perform the
Buyer’s other obligations under this Agreement, unless all of the following conditions have been
satisfied or waived:
a. The Seller’s title to the Property meets the requirements set forth in this Agreement;
b. On the Closing Date the Seller executes and delivers to the Closing Agent all of the
documents which this Agreement, or the Closing Agent, requires the Seller to
execute and deliver;
c. All of the warranties and representations of Seller contained in this Agreement shall
have been true and correct when made, and shall be true and correct in all material
respects on and as of the Closing Date with the same force and effect as though
such warranties and representations had been made on and as of the Closing Date;
d. Seller shall have maintained the Property until the Closing in its condition as of the
date of Buyer’s signature hereunder, ordinary wear and tear excepted;
e. Seller delivers possession of the Property to Buyer on the Closing Date;
f. All mortgages, judgments, and liens shall be paid or satisfied by the Seller at or
prior to closing unless otherwise provided herein; and
g. No additional encumbrances, restrictions, easements or other adverse title
conditions have been placed against the title to the Property other than those
identified in the Preliminary Title Commitment.
h. Additional conditions as outlined in Exhibit.
2.2 Buyer’s Right To Rescind. The Buyer may rescind this Agreement
without any further obligation or liability hereunder before the Due Diligence Deadline or
the deadline for a Buyer Objection. In the event of the Buyer’s failure to timely reject any
defect or deficiency in writing by such deadline, Buyer will be deemed to have waived
such contingency and to have accepted the Property and Personal Property subject to any
existing conditions or defects.
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2.3 Conditions to Seller’s performance. The Seller will have the right to
terminate this Agreement, and shall not be required to convey the Property to the Buyer or
to perform the other obligations of the Seller under this Agreement, unless all of the
following conditions have been satisfied or waived:
a. On the Closing Date the Buyer executes and delivers to the Closing Agent all
of the documents which this Agreement, or the Closing Agent, requires the
Buyer to execute and deliver including the Purchase Price. Buyer intends to
develop affordable rental housing serving households at a maximum of 80% of
the area median income. Buyer intends to request an allocation of low income
housing tax credits from the Montana Board of Housing and potentially other
sources of funding. Buyer anticipates and agrees to record a restrictive use
agreement with the City of Bozeman and the Montana Board of Housing.
On the Closing Date the Buyer executes and delivers to the Closing Agent all of
the documents which this Agreement, or the Closing Agent, requires the Buyer to
execute and deliver.
b. All of the warranties and representations of Buyer contained in this Agreement
shall have been true and correct when made, and shall be true and correct in all
material respects on and as of the Closing Date with the same force and effect
as though such warranties and representations had been made on and as of the
Closing Date.
c. In addition, the Buyer recognizes and agrees the sale of the Property shall be
contingent upon the Seller’s compliance with Chapter 2, Article 6, Division 5,
Bozeman Municipal Code, and the ratification of this Agreement by duly
adopted ordinance of the Bozeman City Commission pursuant to the
requirements of the Section 2.11 of the Bozeman City Charter. Final ratification
of this Agreement shall not be effective until 30 (thirty) days after final adoption
of such ordinance. Should the Bozeman City Commission fail to ratify the City
Manager’s signature on this Agreement this transaction shall be terminated
automatically without any further action of the Seller required and the Earnest
Money returned to Buyer.
2.4 Remedies—Liquidated Damages. THE PARTIES ACKNOWLEDGE THAT
THEY HAVE DISCUSSED THE TYPE AND MAGNITUDE OF DAMAGES THAT
EACH COULD SUFFER IF THIS AGREEMENT TERMINATES BECAUSE OF
THE OTHER PARTY'S BREACH OR DEFAULT HEREUNDER.
FURTHERMORE, EACH ACKNOWLEDGES THAT IT HAS NEGOTIATED THIS
TOPIC IN GOOD FAITH WITH THE OTHER AND HAS CONCLUDED THAT IT
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IS EXTREMELY DIFFICULT AND IMPRACTICAL TO AFFIX A DOLLAR
AMOUNT TO DAMAGES FOR BREACH OR DEFAULT AND THEREFORE
HAVE AGREED TO THE FOLLOWING REMEDIES:
a. Seller’s Remedies in the Event of Buyer’s Beach of Default. THE
PARTIES AGREE THAT SELLER'S SOLE REMEDY, AT LAW OR IN
EQUITY, IN THE EVENT OF A DEFAULT OR BREACH BY BUYER,
IS FOR SELLER TO KEEP THE EARNEST MONEY DEPOSIT AND
ALL INTEREST EARNED THEREON. THEREAFTER THIS
AGREEMENT SHALL TERMINATE AND SELLER SHALL HAVE NO
FURTHER RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT
EXCEPT FOR THOSE THAT ARE EXPRESSLY STATED TO
SURVIVE THE TERMINATION THEREOF.
b. Buyer's Remedies in the Event of Seller's Breach or Default. THE
PARTIES AGREE THAT BUYER'S SOLE REMEDY, AT LAW OR IN
EQUITY, IN THE EVENT OF A DEFAULT OR BREACH BY SELLER
UNDER THIS AGREEMENT, IS FOR BUYER TO HAVE RETURNED
TO IT THE EARNEST MONEY DEPOSIT AND ALL INTEREST
EARNED THEREON AS LIQUIDATED DAMAGES (NOT AS A
PENALTY.
Article 3—Closing
3.1 Escrow. The Earnest Money shall be deposited by the respective Agent with the
Escrow Agent within two (2) business days of the Offer Expiration Deadline according to the
Escrow Method.
3.2 Taxes and Assessments. Seller and Buyer shall prorate taxes, as well as pre-paid rents,
if any, as of the Closing Date, unless otherwise specified on Schedule 3.2. The prior year’s taxes
should be used for proration in the event that the current year taxes are not available, and shall not
be adjusted based on any subsequent change in assessed value. All non-perpetual Special
Improvement Districts or Association Special Assessments will be paid off at Closing by Seller,
unless specified otherwise pursuant to Schedule 3.2.
3.3 Closing Date. Buyer recognizes the Property currently serves as the City’s Fire Station
1. Buyer also recognizes the City is currently constructing the Bozeman Public Safety Center
(BPSC) with an estimated completion date of July 1, 2022. Buyer enters into this Agreement
recognizing the Buyer may not take ownership of the Property until such time as the City completes
construction of the BPSC and Fire Station 1 has relocated to the BPSC. As such, Buyer recognizes
the Closing Date is subject to change by the City if the BPSC is not completed. Buyer agrees the
City may unilaterally extend the Closing Date to a date reasonably necessary to allow the City to
complete construction of the BPSC and move Fire Station 1 to the BPSC. The City must take all
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reasonable steps necessary to complete the construction of the BPSC and move Fire Station 1. The
Buyer may request updates from the City on the status of the BPSC construction and relocation of
Fire Station 1.
Recognizing the above, the Parties anticipate closing this transaction on the Closing Date. In
addition to the City’s authority to extend the Closing Date for issues related to the BPSC and
relocation of Fire Station 1, either Party may extend the Closing Date by ten (10) business days,
by prior notice, unless such extension would cause adverse tax consequences to other Party (i.e. in
the case of an exchange pursuant to 26 USC § 1031) and the other Party has provided notice of
such implications by the Due Diligence Deadline.
3.4 Closing Costs. Buyer and Seller shall equally split all costs related to conducting the
closing and the fee of the Closing Agent. Seller shall pay the cost for a standard 2006 ALTA ®
Owner’s Policy for Title Insurance, with any enhancements in such coverage to be paid by Buyer.
3.5 Allocation of the Purchase Price: Buyer and Seller shall report the Purchase Price
to applicable tax authorities in accordance with the allocation attached as Schedule 3.5, if provided.
3.6 Seller Documents to be Delivered at Closing. On the Closing Date, the Seller shall
deliver to Buyer:
a. The Warranty Deed with a realty transfer certificate recognizing the Seller reserves
unto itself water rights listed herein;
b. A title insurance policy in the amount of the Purchase Price of the Real Property to
insure the Buyer’s title to the Real Property;
3.7 Buyer Closing Deliveries. On the Closing Date, the Buyer shall deliver to
the Escrow Agent the Purchase Price in immediately available funds.
3.8 Purchase Price Adjustment. The Earnest Money and any accrued interest
shall be applied to the Purchase Price.
Article 4—Representations and Warranties
4.1 Representations and Warranties of Seller. The Seller hereby warrants, represents, and
covenants that all of the following warranties and representations are true and correct as
of the date of Seller’s signature hereunder. For purposes of this section “knowledge”
shall mean the due and reasonable inquiry of Seller.
a. Authority of Seller. Seller is the owner of the Property and/or has the full right,
power and authority to sell, convey, and transfer the Property to Buyer as
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provided herein, and to perform Seller’s obligations hereunder. The execution,
delivery, and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary organizational action on the part of Seller. Notwithstanding the above,
the Buyer recognizes and agrees the sale of the Property will be subject to and
contingent upon fulfillment of provisions of Section 2.3.
b. Compliance. Except as disclosed to Buyer, by the Seller Delivery Deadline,
Seller has no knowledge of any aspect or condition of the Property which violates
applicable laws, rules, regulations, codes or covenants, conditions or restriction,
or of improvements or alterations made to the Property without a permit where
one was required, or of any unfulfilled order or directive of any applicable
governmental agency or casualty insurance company requiring any investigation,
remediation, repair, maintenance, or improvement to be performed on the
Property.
c. Possessory Rights. Except as disclosed to Buyer by the Seller Delivery Deadline,
Seller has no knowledge of anyone having any rights in the Property adverse to
the Seller.
d. Liens. There are no unsatisfied mechanics’ or materialmens’ lien rights
concerning the Property, and none of the personal property to be conveyed to
Buyer under this Agreement, are subject to any lien or encumbrance affecting
such, except as disclosed in writing to Buyer.
e. Actions, Suits, or Proceedings. Seller, and no agent of Seller, has any
knowledge of any actions, suits, or proceedings which are pending or threatened
before any commission, board, bureau, agency, arbitrator, court, or tribunal that
would affect the Property or Seller’s ability to convey the Property to Buyer
hereunder.
f. Bankruptcy. Seller, nor any equity owner of Seller, is the subject of a
bankruptcy, insolvency, conservatorship, or probate proceeding.
g. Conflicts. Except as disclosed to Buyer by the Seller Delivery Deadline, no other
person has any right or option to acquire any portion of the Property and the
execution, delivery and performance of this Agreement by Owner and the
consummation by it of the transactions contemplated hereby will (i) not violate
any provision of its organizational documents or any applicable law, rule,
regulation, order or comparable requirement; or (ii) require notice to or the
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consent, authorization, approval or order of any person, except for notices that
have been given and consents that have been obtained.
h. Access and disputes. Except as disclosed to Buyer by the Seller Delivery
Deadline, the Seller has legal and physical access to the Property which is
adequate for the current use of the Property, and the Seller, and no agent of Seller,
knows of any dispute or disagreement which could threaten access to the
Property.
i. Adverse Change. Except as disclosed to Buyer by the Seller Delivery Deadline,
the Seller has no information or knowledge of any action by adjacent landowners,
or natural or artificial conditions on the Property or adjacent property, which
could have a material adverse effect upon the Property or its value. There is no
significant adverse fact or condition relating to the Property which has not been
specifically disclosed in writing by the Seller to the Buyer.
j. Incomplete Inaccurate or Misleading Information. The Seller doesn’t know of
any materially incomplete, inaccurate, or misleading information in the
documents, lists, and reports furnished to the Buyer under this Agreement.
k. Hazardous Substances on the Property. Except as disclosed to Buyer by the
Seller Delivery Deadline, that with respect to the period during which the Seller
owned or occupied the Property, and to the knowledge of the Seller with respect
to the time before the Seller owned or occupied the Property, no hazardous
substances have been manufactured, processed, treated, handled, stored, installed,
recycled, disposed, or released, intentionally or unintentionally, on the Property,
and there have been no activities or events on the Property which could subject
the Seller, the Buyer, or any subsequent owner of the Property to damages,
penalties, injunctive relief, or cleanup or response costs under any environmental
law or common law theory of liability. To the knowledge of Seller, no hazardous
substances have been manufactured, processed, treated, handled, stored, installed,
recycled, disposed, or released, intentionally or unintentionally, on land which is
adjacent to the Property. Except as disclosed by the Seller prior to the Seller
Delivery Deadline, for the purposes of this paragraph, “Hazardous Substances”
shall mean any and all substances, materials, chemicals, or wastes that now or
hereafter are classified or considered to be hazardous or toxic under any
Environmental Law, or that are or become regulated by any governmental
authority because of toxicity, infectiousness, radioactivity, explosiveness,
ignitability, corrosiveness, or reactivity under any environmental law applicable to
the Property, and shall also include: (a) gasoline, diesel fuel, and any other
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petroleum hydrocarbons; (b) asbestos and asbestos containing materials, in any
form, whether friable or non-friable; (c) polychlorinated biphenyls; (d) radon gas;
and (e) flammable liquids and explosives.
l. Broker. Except for the Seller’s Broker, no broker, finder, or investment banker is
entitled to any brokerage, finder’s, or other fee or commission in connection with
the transactions contemplated by this Agreement based upon arrangements made
by or on behalf of Seller.
m. Statutory Disclosures. Except for the disclosures provided on Schedule 4.1(n),
no other disclosures are required by Seller.
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4.2 Representation and Warranties of Buyer. The Buyer hereby warrants, represents, and
covenants that all of the following warranties and representations are true and correct as
of the date of Buyer’s signature hereunder. For purposes of this section “knowledge”
shall mean the due and reasonable inquiry of Buyer.
a. Authority of Buyer. Buyer has the full right, power and authority to purchase
and acquire the Property from Seller as provided herein, and to perform Buyer’s
obligations hereunder. The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by all necessary organizational action on the part
of Seller.
b. Broker. Except for Buyer’s Broker, no broker, finder, or investment banker is
entitled to any brokerage, finder’s, or other fee or commission in connection with
the transactions contemplated by this Agreement based upon arrangements made
by or on behalf of Buyer.
c. Due Diligence. Except as expressly set forth in this Agreement to the contrary,
Buyer is purchasing the Property in its existing condition "AS IS, WHERE-IS,
AND WITH ALL FAULTS” with respect to all facts, circumstances, conditions
and defects, and, Seller has no obligation to determine or correct any such facts,
circumstances, conditions or defects or to compensate Buyer for same. Seller has
specifically bargained for the assumption by Buyer of all responsibility to
investigate the Property, and of all risk of adverse conditions and has structured
the Purchase Price and other terms of this Agreement in consideration thereof.
Buyer has undertaken all such investigations of the Property as Buyer deems
necessary or appropriate under the circumstances as to the status of the Property
and based upon same, Buyer is and will be relying strictly and solely upon such
inspections and examinations and the advice and counsel of its own consultants,
agents, legal counsel and officers. Buyer is and will be fully satisfied that the
Purchase Price is fair and adequate consideration for the Property and, by reason
of all the foregoing, Buyer assumes the full risk of any loss or damage (subject to
Section 5.3 below) occasioned by any fact, circumstance, condition or defect
pertaining to the Property.
d. No Warranty or Other Representation. Except as expressly set forth in this
Agreement to the contrary, Seller hereby disclaims all warranties of any kind or
nature whatsoever INCLUDING, WITHOUT LIMITATION, WARRANTIES
OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES,
whether expressed or implied including, without limitation warranties with
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respect to the Property. Except as is expressly set forth in this Agreement to the
contrary, Buyer acknowledges that it is not relying upon any representation of any
kind or nature made by Seller, or Seller's Agent, or any of their respective direct
or indirect officers, directors, employees or agents (collectively, the "Seller
Related Parties") with respect to the Property, and that, in fact, except as
expressly set forth in this Agreement to the contrary, no such representations were
made. To the extent required to be operative, the disclaimers and warranties
contained herein are "conspicuous" disclaimers for purposes of any applicable
law, rule, regulation or order.
Article 5—Additional Provisions
5.1 Assignment. This Agreement may NOT be assigned by the Buyer, except to a related entity,
without the prior written consent of the Seller. Any other assignment or purported
assignment of the Agreement shall be null and void.
5.2 1031 Exchange. In connection with any 1031 exchange or exchanges, the Buyer may assign
its respective rights under this Agreement to a qualified intermediary or exchange
accommodation titleholder, as required by IRS Regulations. No such assignment will
modify or release any of the obligations of either the Buyer or the Seller under this
Agreement. Notwithstanding any such assignment or assignments, the Seller will convey
the Property directly to the Buyer. The Parties each agree to cooperate in any exchange
performed by the other party provided that they incur no additional liability, cost, or
expense as a result of the cooperation, but neither Party will be obligated to acquire or
convey any other property as part of the other Party’s 1031 exchange.
5.3 Risk of Loss. All loss or damage to the Property shall be retained by Seller until the
Closing.
5.4 Entire Agreement. This Agreement, together with any other documents incorporated herein
by reference and all related exhibits and schedules, constitute the sole and entire agreement
of the Parties to this Agreement with respect to the subject matter contained herein and
therein, and supersedes all prior and contemporaneous understandings, agreements,
representations, and warranties, both written and oral, with respect to such subject matter.
5.5 Amendment and Modification. This Agreement may only be amended, modified, or
supplemented by an agreement in writing signed by each Party hereto.
5.6 Waiver. No waiver by any party of any of the provisions hereof shall be effective unless
explicitly set forth in writing and signed by the party so waiving. No waiver by any party
shall operate or be construed as a waiver in respect of any failure, breach, or default not
expressly identified by such written waiver, whether of a similar or different character, and
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whether occurring before or after that waiver. No failure to exercise, or delay in exercising,
any right, remedy, power, or privilege arising from this Agreement shall operate or be
construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power, or privilege hereunder preclude any other or further exercise thereof or the exercise
of any other right, remedy, power, or privilege.
5.7 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and
their respective successors and permitted assigns, and nothing herein, express or implied,
is intended to or shall confer upon any other person or entity any legal or equitable right,
benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
5.8 Governing Law & Forum. All matters arising out of or relating to this Agreement shall be
governed by and construed in accordance with the laws of the State of Montana without
giving effect to any choice or conflict of law provision or rule (whether of the State of
Montana or any other jurisdiction).
5.9 Submission to Jurisdiction. The Parties hereby agree that any suit, action, or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in connection
with this Agreement or the transactions contemplated hereby, whether in contract, tort or
otherwise, shall be brought in the United States District Court for the District of Montana
or district court for the State of Montana, so long as one of such courts shall have
subjectmatter jurisdiction over such suit, action, or proceeding. Each of the Parties hereby
irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the
fullest extent permitted by law, any objection that it may now or hereafter have to the laying
of the venue of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding that is brought in any such court has been brought in an inconvenient
form. Service of process, summons, notice or other document by certified mail to the
address set forth in Section 5.19 shall be effective service of process for any suit, action, or
other proceeding brought in any such court.
5.10 Attorneys’ Fees. In the event that any party institutes any suit, action, or proceeding,
including arbitration, against the other Party to enforce the covenants contained in this
Agreement (or obtain any other remedy in respect of any breach of this Agreement) or
arising out of or relating to this Agreement, the prevailing party in the suit, action or other
proceeding shall be entitled to receive, in addition to all other damages to which it may be
entitled, the costs incurred by such party in conducting the suit, action, or proceeding,
including reasonable attorneys’ fees and expenses and court costs. This includes, subject
to any limits under applicable law, attorneys’ fees for bankruptcy proceedings (including
efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services.
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5.11 Further Assurances. Each of the Parties hereto shall, and shall cause their respective
affiliates to, execute and deliver such additional documents, instruments, conveyances, and
assurances and take such further actions as may be required to carry out the provisions
hereof and give effect to the transactions contemplated hereby.
5.12 Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall be deemed to be one and the same
agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means
of Electronic Transmission shall be deemed to have the same legal effect as delivery of an
original signed copy of this Agreement (e.g. DocuSign). The Parties have consented to
execute this Agreement electronically in conformance with the Montana Uniform
Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA.
5.13 Time of the Essence. Time shall be of the essence in this Agreement.
5.14 Remedies. Seller’s sole and exclusive remedy is monetary damages against Buyer. Buyer
may either require Seller to specifically perform, or recover monetary damages against
Seller as provided for in Section 2.4.
5.15 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable
in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other
term or provision of this Agreement or invalidate or render unenforceable such term or
provision in any other jurisdiction. Upon such determination that any term or other
provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions contemplated hereby
be consummated as originally contemplated to the greatest extent possible.
5.16 Relationship of the Parties. Nothing herein shall be construed to create a joint venture or
partnership between the parties hereto or an employer/employee or agency relationship.
Neither party hereto shall have any express or implied right or authority to assume or create
any obligations on behalf of or in the name of the other party or to bind the other party to
any contract, agreement, or undertaking with any third party.
5.17 Confidentiality. Until the Closing, Buyer shall treat the information disclosed to it by Seller,
or otherwise gained through Buyer's access to the Property and Seller's books and records,
as confidential, giving it the same care as Buyer's own confidential information, and make
no use of any such disclosed information not independently known to Buyer
except in connection with the transactions contemplated hereby; provided, however, that
Buyer may, without the consent of Seller, disclose such information: (a) to its partners,
members, managers, employees, advisors, consultants, attorneys, accountants, prospective
Page 15 of 20
and actual investors, and lenders (the "Transaction Parties"), so long as any such
Transaction Parties to whom disclosure is made shall also agree to keep all such
information confidential in accordance with the terms hereof and (b) if disclosure is
required by law or by regulatory or judicial process, provided that in such event, Buyer
shall notify Seller of such required disclosure, shall exercise all commercially reasonable
efforts to preserve the confidentiality of the confidential information, including, without
limitation, reasonably cooperating with Seller (at Seller's sole expense) to obtain an
appropriate order or other reliable assurance that confidential treatment will be accorded
such confidential information by such tribunal and shall disclose only that portion of the
confidential information which Buyer is legally required to disclose. Notwithstanding the
foregoing, the confidentially provisions of this Section 5.17 shall not apply to any
information or document which: (i) is or becomes generally available to the public other
than as a result of a disclosure in violation of this Agreement or (ii) subject to compliance
with clause (b) in this Section 5.17 above, is required by law or court order to be disclosed.
In the event of a termination of this Agreement, Buyer shall promptly return all such
confidential information to Seller.
5.18 Notices & Communication. All communication between the Parties regarding this
transaction shall be between the Agents and be conducted via email at the address(es) set
forth on the first page of this Agreement and to the emails or cloud sites identified on
Schedule 5.17. Any notices, requests, consents, claims, demands, waivers, and other
communications hereunder (each, a “Notice”) shall be in writing and addressed to the party
at the email addresses set forth on the first page of this Agreement, with cc to their
respective Agent (or to such other email address that may be designated by the receiving
party from time to time in accordance with this Section) and sent to the party and their
respective Agent at the mailing address set forth on the first page of this Agreement. Except
as otherwise provided in this Agreement, a Notice is effective only if the party giving the
Notice has complied with the requirements of this Section.
5.19 Survival. The provisions of Sections 2.4, Article IV, and this Article V, shall survive the
termination of this Agreement and the Closing.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the
date first written above by their respective officers thereunto duly authorized.
Seller:
Page 16 of 20
By:
Name:
Title:
Date:
Buyer:
By:
Name: Steve Dymoke
Title: Partner
Date: February 21, 2022
Schedule 1.1—Additional Terms
Seller agrees to provide financing for the Property at 90% of the Purchase Price which
shall be secured by a first deed of trust. Terms shall be 0% simple interest plus any
servicing fees charged to the city up to a maximum of 1%, due quarterly, 18-month
term, with (2) six-month extensions for $25,000 each.
Seller agrees to provide $1,600,000 in funding from the Downtown Bozeman Tax
Increment Financing District. These funds will be made available to buyer after land
closing on a drawn down basis to pay eligible costs per 7-15-4288, MCA. This TIF
District funding may be directed to be paid to HRDC or to another non-profit housing
partner.
Page 17 of 20
City agrees to a reduced parking requirement of 35 equivalent stalls in a combination of
interior, exterior and car share arrangement.
Buyer to have an option for 12 additional, off-site parking stalls in the city garage and
buyer agrees to pay the stated monthly rate for these stalls.
Buyer and Seller shall record a mutually agreeable regulatory agreement to restrict
household incomes to not to exceed 100% of area median income. Additional
regulatory agreements may be recorded as required by Montana Board of Housing or
other funders. Th ideal set aside target is households between 50%-70% of median
income, but Buyer may need additional units at higher rents to offset costs.
Schedule 1.2—Specific Inspections
Due Diligence Items
1. A preliminary title commitment with legible copies of all exceptions.
2. A copy of all recorded liens and encumbrances against the Property and copies of
notes for which the encumbrances are security, as available.
3. A Phase 1 Environmental Site Assessment, if available.
4. The most recent appraisal.
5. Alta Survey.
6. All engineering drawings of record.
7. Documents related to any late-comer agreements or other SID associated with the
development of the parcels.
8. Any other pertinent information that would be beneficial for Buyer.
Schedule 2.4—Additional Seller Remedies Above Buyer’s Escrow Amount
Schedule 3.2—Alternative proration of pre-paid rents and taxes and Special Assessment
Treatment
Page 18 of 20
Schedule 3.5—Intentionally Omitted
Schedule 4.1(n)—Seller’s Form Statutory Disclosures
[Various statutory disclosures depending on the nature of the Property, and the presence of
residential units]
RADON GAS: RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT,
WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY
PRESENT HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME.
LEVELS OF RADON THAT EXCEED FEDERAL GUIDELINES HAVE BEEN FOUND IN
BUILDINGS IN MONTANA. ADDITIONAL INFORMATION REGARDING RADON AND
RADON TESTING MAY BE OBTAINED FROM YOUR COUNTY OR STATE PUBLIC
HEALTH UNIT.
MOLD DISCLOSURE: There are many types of mold. Inhabitable properties are not, and
cannot be, constructed to exclude mold. Moisture is one of the most significant factors
contributing to mold growth. Information about controlling mold growth may be available from
your county extension agent or health department. Certain strains of mold may cause damage to
property and may adversely affect the health of susceptible persons, including allergic reactions
that may include skin, eye, nose, and throat irritation. Certain strains of mold may cause
infections, particularly in individuals with suppressed immune systems. Some experts contend
that certain strains of mold may cause serious and even life-threatening diseases. However,
experts do not agree about the nature and extent of the health problems caused by mold or about
the level of mold exposure that may cause health problems. The Centers for Disease Control and
Prevention is studying the link between mold and serious health conditions. The seller, landlord,
seller's agent, buyer's agent, or property manager cannot and does not represent or warrant the
absence of mold. It is the buyer's or tenant's obligation to determine whether a mold problem is
present. To do so, the buyer or tenant should hire a qualified inspector and make any contract to
purchase, rent, or lease contingent upon the results of that inspection.
A seller, landlord, seller's agent, buyer's agent, or property manager who provides this mold
disclosure statement, provides for the disclosure of any prior testing and any subsequent
mitigation or treatment for mold, and discloses any knowledge of mold is not liable in any action
based on the presence of or propensity for mold in a building that is subject to any contract to
purchase, rent, or lease.
Page 19 of 20
LEAD BASED PAINT. Residential real property on which a residential dwelling was built
prior to 1978 may present exposure to lead from lead-based paint that may place young children
at risk for developing lead poisoning. Lead poisoning in young children may produce permanent
neurological damage, including learning disabilities, reduced intelligence quotient, behavioral
problems, and impaired memory. Lead poisoning also poses a particular risk to pregnant
women. A risk assessment or inspection for possible lead-based paint hazards is recommended
prior to occupancy of this Premises. Risk assessments for lead based paint are the responsibility
of Buyer or the prospective buyer. Information on protecting your family from lead paint risks
can be found at:
https://www.epa.gov/sites/production/files/201706/documents/pyf_color_landscape_format_201
7_508.pdf
The Property is equipped with __ smoke detectors [and Carbon monoxide detectors].
METHAMPHETAMINE CONTAMINATION DISCLOSURE STATEMENT: Pursuant to
the provisions of Title 75, Chapter 10, Part 13 of Montana Code Annotated, certain owners of
real property which has been contaminated with hazardous chemical residues created by the
clandestine manufacture of methamphetamine are required to notify any acquiring party of such
contamination and the certification of any remediation or decontamination project. Seller
represents that it has no knowledge of any such contamination of the Property, nor has it
received any notice of any such contamination of the Property. Seller represents that it has no
knowledge of the presence of methamphetamine in any habitable structure, nor has it received
any notice that methamphetamine is present in any habitable structure.
Megan’s Law Disclosure Statement. Pursuant to the provisions of Title 46, Chapter 23, Part 5
of the Montana Code Annotated, certain individuals are required to register their address with the
local law enforcement agencies as part of Montana's Sexual and Violent Offender Registration
Act. In order to provide the public with information so they can protect themselves and their
children from convicted sexual and violent offenders, the Montana Department of Justice
maintains an electronic database entitled the "Montana Sexual or Violent Offender Registry"
which can be found at http://www.doj.mt.gov/svor/. Buyer agrees to be solely responsible to
conduct any investigation regarding the existence of any individuals residing near the Property that
are registered as part of Montana's Sexual and Violent Offender Registration.
Noxious Weeds Disclosure Statement. The Buyer of the Property acknowledges Buyer is aware
that all property in the State of Montana potentially contains the existence of noxious weeds.
Further, the laws of the State of Montana require owners of property within this state to control,
and to the extent possible, eradicate noxious weeds. Pursuant to the provisions of Title 7, Chapter
22, Section 2116 of the Montana Code Annotated, it is unlawful for any person to permit any
noxious weed to propagate or go to seed on the person's land unless they adhere to a noxious weed
management plan as provided for under Montana law. Buyer acknowledges and agrees that before
Page 20 of 20
purchasing the Property, Buyer is solely responsible to conduct any investigation of the Property
regarding the existence or potential existence of noxious weeds on the Property. The Seller cannot
and does not represent or warrant the absence of noxious weeds on the Property. It is the Buyer’s
obligation to determine whether noxious weeds are present. To do so, the Buyer may hire a
qualified inspector and make this Agreement contingent upon the results of that inspection.
Schedule 5.17—Additional Forms of Communication and Data Exchange
Offer | DelMonte
Bozeman Fire Station 1 RFP
Presented By:
2/22/2022
Mr. Springer,
We appreciate the opportunity for the DelMonte Hotel Group to participate in the RFP for the Bozeman Fire Station 1.
Proposal:
Given the opportunity the DelMonte Hotel Group will develop the site into a 123 room boutique hotel with a bar, restaurant, and amenity spaces on the ground floor.
The guest rooms will be located on floors 2 through 5. The sixth floor would host a rooftop bar/restaurant with a large outdoor terrace to take advantage of
the beautiful mountain views. Parking would be accommodated though one level of underground parking resulting in approximately 40 spaces. The additional spaces
will require an offsite solution. This hotel would contribute approximately 43 full time jobs resulting in $1.8MM in payroll to the Bozeman job market, please see our
proposed staffing chart below.
Who we are:
The DelMonte Hotel Group is an award-winning hotel management and development company headquartered in Rochester, New York. The company was one of the
first Marriott franchises and has grown from a single full-service hotel in 1973 to a portfolio of full-service, select service, and extended-stay products within the
Marriott and Hilton brands. DelMonte Hotel Group has built and managed properties flagged by Marriott, Renaissance, Courtyard by Marriott, Fairfield by Marriott,
Residence Inn, AC Hotel by Marriott, Hilton Garden and Hampton Inn & Suites.
Recent Acquisitions and Developments:
- Hampton Inn and Suites Saratoga Springs Downtown (Acquisition)
o Date acquired: 12/16/2021
o Reference:
Brian Straughter
bstraughter@turfhotels.com
518-312-9808
- Residence Inn Cleveland University Circle/Medical Center (New Construction)
o Date Opened: 6/4/2019
o Reference:
Wesley Finch
WFinch@thefinchgroup.com
(561) 998-0700;113
- AC Hotel Cleveland/Beachwood (New Construction)
o Open Date 8/28/2018
o Reference:
Randy Ruttenberg
rruttenberg@fairmountproperties.com
216-470-9300
Sincerely,
Alexander DelMonte
CEO & President
DelMonte Hotel Group
Conceptual Design
February 18, 2022
Boutique Hotel
34 N. Rouse Avenue
Bozeman, MT
0234 N. Rouse Avenue | Existing Site Plan North Rouse AvenueEast Mendenhall Street
34 N. Rouse Ave.Existing Building
130'-0"150'-0"
0334 N. Rouse Avenue | Hotel Ground Floor PlanScale: 1" = 20'-0"DCHD D
DCDDDD
North Rouse AvenueEast Mendenhall Street
Hotel Summary
Hotel Lobby
Service
130'-0"150'-0"Ramp down to parking levelFitness
Bar/Restaurant
Kitchen
Restrooms
Garden Terrace
Lounge
Service Utility
House-keeping
–Proposed 6-story hotel with 1 additional parking
level below grade
–Hotel lobby, bar, restaurant and amenity spaces
are at ground level
–Hotel guestrooms are on floors 2-5, 31 guestrooms
on each floor for a total of 124 rooms
–Rooftop bar/restaurant located on the 6th floor
with a large outdoor terrace at the southwest
corner
0434 N. Rouse Avenue | Typical Hotel Guestroom Level (2-5)Scale: 1" = 20'-0" North Rouse AvenueEast Mendenhall Street
31 Guestrooms Each Floor
130'-0"150'-0"Service
Service
0534 N. Rouse Avenue | Rooftop Bar (Level 6)Scale: 1" = 20'-0"DCHD DDCD
DDD North Rouse AvenueEast Mendenhall Street
Restrooms Service
130'-0"150'-0"KitchenRoof Terrace
Roof Below
Rooftop Bar
0634 N. Rouse Avenue | Conceptual Rendering
Page 1 of 19
PURCHASE AND SALE AGREEMENT
This “Agreement” is made and entered into by and between:
“Buyer” and “Seller”
Del Monte Acquisitions LLC
909 Linden Avenue
Rochester, New York 14625
Attn: Alexander DelMonte
Email: adelmonte@delmontehotels.com
City of Bozeman
(each a “Party” and collectively the “Parties”).
“Buyer’s Agent”: “Seller’s Agent”:
[Broker Name] Ryan Springer
[Brokerage] Sterling CRE Advisors Bozeman
[Email] Ryan.Springer@sterlingcreadvisors.com
[phone] 406-579-5586
(each an “Agent” and collectively the “Agents”).
The following terms shall have the following meanings for purposes of this Agreement:
“Real Property”: 34 N Rouse Avenue, Bozeman MT 59715
Legal Description: Lots 15, 16, 17, 18, and 19 in Block F of
Rouse's First Addition, City of Bozeman, Gallatin County,
MT. EXCEPTING Therefrom the portion transferred to
Montana Department of Transportation for Highway Right
of Way, further described in the Bargain and Sale Deed
recorded as Document 2527031 on 10/07/2015 with the
Gallatin County Clerk and Recorder. To Be be verified
during escrow.
“Purchase Price” $43,000700,000.00
“Closing Date” or “Closing” Closing to occur within 15 days of the City of Bozeman
vacating premises.
“Escrow Agent” [Name, Company, Contact Info]First American Title
Insurance Company, 16 W. Main Street, Rochester, New York
14614, Attn: Maureen Garvey, Esq. “Escrow Method” [Wire, Check to be cashed, check to be held]
“Earnest Money” $500,000.00
“Due Diligence Delivery
Deadline”
Three business days from the Offer Expiration Deadline
“Due Diligence Deadline” 45 days from approval of ordinancethe Ordinance (defined
Page 2 of 19
“Offer Expiration Deadline” Offer will remain open (valid) until the COBSeller
approves
or disapproves/offer unless rescinded in writing by Buyer
prior to
Page 3 of 19
ARTICLE 1—Purchase & Sale
1.1 Purchase. The Seller agrees to sell and the Buyer agrees to buy, on the terms and
conditions set forth in this Agreement and Schedule 1.1, all of the Seller’s right, title, and
interest in the Real Property, including all rights, improvements and fixtures located on
the Real Property and all rights, privileges, easements, and rights of way appurtenant to
the Real Property (collectively, the “Property”) excepting the Seller’s interests in water
rights 41H 61642-00 and 41H 61643-00 and excepting the existing fire pole. If Seller has
not accepted this offer by the Offer Expiration Deadline, such offer shall be deemed to
have been automatically withdrawn as of the Offer Expiration Deadline.
1.2 Good Faith Deposit: Notwithstanding that this Agreement must be ratified by the
Bozeman City Commission, no later than two (2) days after the Bozeman City Manager’s
signature on this Agreement Buyer will cause the Earnest Money to be deposited with the
Escrow Agent.
1.3 Due Diligence. Buyer recognizes it has had opportunity to conduct due diligence during
the time period the Property was listed for sale. Nevertheless, Buyer shall have until the
Due Diligence Deadline to conduct inspections or reviews customary in the sale of
commercial real estate in Montana of the Real Property including the inspections and
evaluations listed on Schedule 1.2. During this period, Seller will make reasonable
accommodations for Buyer, or Buyer’s agents, to enter and inspect and evaluate the
Property. Buyer may terminate this Agreement, at Buyer’s sole and absolute discretion,
if the Property is not satisfactory and if Buyer provides notice to Seller before the
expiration of the Due Diligence Deadline. If Buyer so terminates, Buyer shall (i) receive
an immediate return of the Earnest Money and (ii) provide Seller any reports or
information relating to due diligence that were prepared by Buyer or Buyer’s Agent.
1.4 Seller’s Deliveries. Prior to Seller’s the Due Diligence Delivery Deadline, Seller
shall provide to Buyer legible copies of all material documents or contracts affecting
the Property in Seller’s possession or which are reasonably accessible to Seller.
1.5 Title. By the Seller’s Due Diligence Delivery Deadline, Seller shall deliver to the Buyer
a commitment for a standard ALTA owner’s title insurance policy issued by the
ClosingEscrow
Page 4 of 19
Agent (the “Preliminary Title Commitment”) in an amount equal to the Purchase Price
commitment to insurance merchantable title to the Real Property. Buyer shall have
twenty (20) business days from the delivery of the Preliminary Title Commitment to
object to the title of the Property (a “Buyer Objection”). If Buyer so objects, Seller shall
have thirty (30) days—and the Closing Date shall be automatically extended by thirty
(30) days—to address such Buyer Objection to the satisfaction of Buyer, in Buyer’s sole
and absolute discretion. If Seller is unable or unwilling to cure the Buyer Objection in
accordance with this Section, Buyer may terminate this Agreement and receive an
immediate return of the Earnest Money.
1.6 Seller’s Title Delivery. At the closing Closing the Seller shall convey good and
marketable fee simple title to the Real Property to the Buyer by warranty deed, free and
clear of all liens, encumbrances, easements, rights of way, restrictions, reservations,
conditions, burdens, and other defects in title (the “Warranty Deed”), except as follows
(the “Exceptions”):
a. Easements, rights of way, restrictions, reservations, conditions, and burdens of
record;
b. Easements, rights of way, and encroachments which are apparent on an inspection
of the Real Property or which would be disclosed by a survey of the Real
Property;
c. Laws, ordinances, and regulations relating to zoning, land use, environmental
protection, and building;
d. Reservations made in patents or in acts authorizing the issuance of patents;
e. Taxes and assessments which are not yet due and payable; and
f. All other conditions of title disclosed by the Preliminary Title Commitment, and
which did not receive a Buyer Objection.; and
1.7 City Not Bound in Its Regulatory/Utility Authority. Buyer recognizes the City enters
this Agreements as a landowner and not in its regulatory role regarding any land use,
zoning, building inspection, subdivision, or any other circumstance where the Buyer may
need to receive regulatory approvals from the City prior to conducting any activity on the
Property after Closing. In addition, Buyer recognizes the City is a provider of certain utility
services including but not limited to water, sewer, and stormwater. As such, Buyer agrees
that noting nothing herein binds the City to make certain regulatory approvals should the
Property be redeveloped, reused, demolished, or in any capacity wherein the City may have
regulatory or utility authority after Closing.
ARTICLE 2—Conditions to Performance
Page 5 of 19
2.1 Conditions To Buyer’s Performance. The Buyer will have the right to terminate
this Agreement and receive a return of the Earnest Money, and shall not be obligated to complete
the purchase of the Property or to perform
Page 6 of 19
the Buyer’s other obligations under this Agreement, unless all of the following
conditions have been satisfied or waived:
a. The Seller’s title to the Property meets the requirements set forth in this Agreement;
b. On the Closing Date the Seller executes and delivers to the Closing Escrow Agent
all of the documents which this Agreement, or the Escrow Closing Agent, requires
the Seller to execute and deliver;
c. All of the warranties and representations of Seller contained in this Agreement shall
have been true and correct when made, and shall be true and correct in all material
respects on and as of the Closing Date with the same force and effect as though such
warranties and representations had been made on and as of the Closing Date;
d. Seller shall have maintained the Property until the Closing in its condition as of the
date of Buyer’s signature hereunder, ordinary wear and tear excepted;
e. Seller delivers possession of the Property to Buyer on the Closing Date;
f. All mortgages, judgments, and liens shall be paid or satisfied by the Seller at or
prior to closing unless otherwise provided herein; and
g. No additional encumbrances, restrictions, easements or other adverse title
conditions have been placed against the title to the Property other than those
identified in the Preliminary Title Commitment.
2.2 Buyer’s Right To Rescind. The Buyer may rescind this Agreement without any
further obligation or liability hereunder before the Due Diligence Deadline or the deadline for a
Buyer Objection. In the event of the Buyer’s failure to timely reject any defect or deficiency in
writing by such deadline, Buyer will, subject to the other terms and conditions of this Agreement,
be deemed to have waived such contingency and to have accepted the Property and Personal
Property subject to any existing conditions or defects.
2.3 Conditions to Seller’s performance. The Seller will have the right to terminate this
Agreement, and shall not be required to convey the Property to the Buyer or to perform the other
obligations of the Seller under this Agreement, unless all of the following conditions have been
satisfied or waived:
a. On the Closing Date the Buyer executes and delivers to the Escrow Closing
Agent all of the documents which this Agreement, or the Escrow Closing Agent,
requires the Buyer to execute and deliver including the Purchase Price [NOTE:
if offer includes the provision of affordable housing on the Property this clause
must be amended to reflect how and when the housing will be provided].
On the Closing Date the Buyer executes and delivers to the Closing Agent all of the
documents which this Agreement, or the Closing Agent, requires the Buyer to
execute and deliver.
Page 7 of 19
b. All of the warranties and representations of Buyer contained in this Agreement
shall have been true and correct when made, and shall be true and correct in all
material respects on and as of the Closing Date with the same force and effect
as though such warranties and representations had been made on and as of the
Closing Date.
c. In addition, the Buyer recognizes and agrees the sale of the Property shall be
contingent upon the Seller’s compliance with Chapter 2, Article 6, Division 5,
Bozeman Municipal Code, and the ratification of this Agreement by duly
adopted ordinance of the Bozeman City Commission pursuant to the
requirements of the Section 2.11 of the Bozeman City Charter (the “Ordinance”).
Final ratification of this Agreement shall not be effective until 30 (thirty) days
after final adoption of such ordinancethe Ordinance. Should the Bozeman City
Commission fail to ratify the City Manager’s signature on this Agreement this
transaction shall be terminated automatically without any further action of the
Seller required and the Earnest Money shall be immediately returned to Buyer.
2.4 Remedies—Liquidated Damages. THE PARTIES ACKNOWLEDGE THAT
THEY HAVE DISCUSSED THE TYPE AND MAGNITUDE OF DAMAGES THAT
EACH COULD SUFFER IF THIS AGREEMENT TERMINATES BECAUSE OF
THE OTHER PARTY'S BREACH OR DEFAULT HEREUNDER.
FURTHERMORE, EACH ACKNOWLEDGES THAT IT HAS NEGOTIATED THIS
TOPIC IN GOOD FAITH WITH THE OTHER AND HAS CONCLUDED THAT IT
IS EXTREMELY DIFFICULT AND IMPRACTICAL TO AFFIX A DOLLAR
AMOUNT TO DAMAGES FOR BREACH OR DEFAULT AND THEREFORE
HAVE AGREED TO THE FOLLOWING REMEDIES:
a. Seller’s Remedies in the Event of Buyer’s Breach of or Default. THE
PARTIES AGREE THAT SELLER'S SOLE REMEDY, AT LAW OR IN
EQUITY, IN THE EVENT OF A DEFAULT OR BREACH BY BUYER,
IS FOR SELLER TO KEEP THE EARNEST MONEY DEPOSIT AND
ALL INTEREST EARNED THEREON. THEREAFTER THIS
AGREEMENT SHALL TERMINATE AND SELLER SHALL HAVE NO
FURTHER RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT
EXCEPT FOR THOSE THAT ARE EXPRESSLY STATED TO
SURVIVE THE TERMINATION THEREOF.
b. Buyer's Remedies in the Event of Seller's Breach or Default. THE PARTIES
AGREE THAT BUYER'S SOLE REMEDYREMEDIES, AT LAW OR IN
EQUITY, IN THE EVENT OF A DEFAULT OR BREACH BY SELLER
UNDER THIS AGREEMENT, IS FOR BUYER TO (i) HAVE
RETURNED
Page 8 of 19
TO IT THE EARNEST MONEY DEPOSIT AND ALL INTEREST EARNED
THEREON AS LIQUIDATED DAMAGES (NOT AS A PENALTY), (ii)
PURSUE AN ACTION FOR SPECIFIC PERFORMANCE TO ENFORCE
SELLER’S OBLIGATIONS, OR (iii) WAIVE THE DEFAULT AND
PROCEED TO CLOSING.
Article 3—Closing
3.1 Escrow. The Earnest Money shall be deposited by the respective AgentBuyer
with the Escrow Agent within two (2) business days of the Offer Expiration Deadline according to
the Escrow Method.
3.2 Taxes and Assessments. Seller and Buyer shall prorate taxes, as well as pre-paid
rents, if any, as of the Closing Date, unless otherwise specified on Schedule 3.2. The prior year’s
taxes should be used for proration in the event that the current year taxes are not available, and
shall not be adjusted based on any subsequent change in assessed value. All non-perpetual Special
Improvement Districts or Association Special Assessments will be paid off at Closing by Seller,
unless specified otherwise pursuant to Schedule 3.2.
3.3 Closing Date. Buyer recognizes the Property currently serves as the City’s Fire
Station 1. Buyer also recognizes the City is currently constructing the Bozeman Public Safety
Center (“BPSC”) with an estimated completion date of July 1, 2022 (the “Estimated Completion
Date”). Buyer enters into this Agreement recognizing the Buyer may not take ownership of the
Property until such time as the City completes construction of the BPSC and Fire Station 1 has
relocated to the BPSC. As such, Buyer recognizes the Closing Date is subject to change by the City
if the BPSC is not completed. Buyer agrees the City may unilaterally extend the Closing Date until
October 1, 2022 (the “Extended Closing Date”) by providing written notice to Buyer prior to the
expiration of the Estimated Completion Dateto a date reasonably necessary to allow the City to
complete construction of the BPSC and move Fire Station 1 to the BPSC. The City must take all
reasonable steps necessary to complete the construction of the BPSC and move Fire Station 1. The
Buyer may request updates from the City on the status of the BPSC construction and relocation of
Fire Station 1. If the Closing has not occurred on or before the Extended Closing Date, Buyer may
terminate this Agreement and receive an immediate return of the Deposit.
Recognizing the above, the Parties anticipate closing this transaction on the Closing Date. In
addition to the City’s authority to extend the Closing Date for issues related to the BPSC and
relocation of Fire Station 1, either Party may extend the Closing Date by ten (10) business days,
by prior notice, unless such extension would cause adverse tax consequences to other Party (i.e. in
the case of an exchange pursuant to 26 USC § 1031) and the other Party has provided notice of
such implications by the Due Diligence Deadline.
Page 9 of 19
3.4 Closing Costs. Buyer and Seller shall equally split all costs related to conducting
the closing and the fee of the Escrow Closing Agent. Seller shall pay the cost for a standard 2006
ALTA
® Owner’s Policy for Title Insurance, with any enhancements in such coverage to be paid by
Buyer.
Page 10 of 19
3.5 Allocation of the Purchase Price: Buyer and Seller shall report the Purchase Price
to applicable tax authorities in accordance with the allocation attached as Schedule 3.5, if provided.
3.6 Seller Documents to be Delivered at Closing. On the Closing Date, the Seller
shall deliver to Buyer:
a. The Warranty Deed with a realty transfer certificate recognizing the Seller reserves
unto itself water rights listed herein;
b. A title insurance policy in the amount of the Purchase Price of the Real Property to
insure the Buyer’s title to the Real Property;
c. A bill of sale conveying all personal property located at the Real Property.
3.7 Buyer Closing Deliveries. On the Closing Date, the Buyer shall deliver to the
Escrow Agent the Purchase Price in immediately available funds.
3.8 Purchase Price Adjustment. The Earnest Money and any accrued interest shall
be applied to the Purchase Price.
Article 4—Representations and Warranties
4.1 Representations and Warranties of Seller. The Seller hereby warrants, represents, and
covenants that all of the following warranties and representations are true and correct as
of the date of Seller’s signature hereunder. For purposes of this section “knowledge”
shall mean the due and reasonable inquiry of Seller.
a. Authority of Seller. Seller is the owner of the Property and/or has the full right,
power and authority to sell, convey, and transfer the Property to Buyer as
provided herein, and to perform Seller’s obligations hereunder. The execution,
delivery, and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary organizational action on the part of Seller. Notwithstanding the above,
the Buyer recognizes and agrees the sale of the Property will be subject to and
contingent upon fulfillment of provisions of Section 2.3.
b. Compliance. Except as disclosed to Buyer, by the Seller Due Diligence
Delivery Deadline, Seller has no knowledge of any aspect or condition of the
Property which violates applicable laws, rules, regulations, codes or covenants,
conditions or restriction,
or of improvements or alterations made to the Property without a permit where
Page 11 of 19
one was required, or of any unfulfilled order or directive of any applicable
governmental agency or casualty insurance company requiring any investigation,
Page 12 of 19
remediation, repair, maintenance, or improvement to be performed on the
Property.
c. Possessory Rights. Except as disclosed to Buyer by the Seller Due Diligence
Delivery Deadline, Seller has no knowledge of anyone having any rights in the
Property adverse to the Seller.
d. Liens. There are no unsatisfied mechanics’ or materialmens’ lien rights
concerning the Property, and none of the personal property to be conveyed to
Buyer under this Agreement, are subject to any lien or encumbrance affecting
such, except as disclosed in writing to Buyer.
e. Actions, Suits, or Proceedings. Seller, and no agent of Seller, has any
knowledge of any actions, suits, or proceedings which are pending or threatened
before any commission, board, bureau, agency, arbitrator, court, or tribunal that
would affect the Property or Seller’s ability to convey the Property to Buyer
hereunder.
f. Bankruptcy. Seller, nor any equity owner of Seller, is the subject of a
bankruptcy, insolvency, conservatorship, or probate proceeding.
g. Conflicts. Except as disclosed to Buyer by the Seller Due Diligence Delivery
Deadline, no other person has any right or option to acquire any portion of the
Property and the execution, delivery and performance of this Agreement by
Owner and the consummation by it of the transactions contemplated hereby will
(i) not (i) violate any provision of its organizational documents or any applicable
law, rule, regulation, order or comparable requirement; or (ii) require notice to or
the consent, authorization, approval or order of any person, except for notices
that have been given and consents that have been obtained.
h. Access and disputes. Except as disclosed to Buyer by the Due Diligence Seller
Delivery Deadline, the Seller has legal and physical access to the Property which
is adequate for the current use of the Property, and the Seller, and no agent of
Seller, knows of any dispute or disagreement which could threaten access to the
Property.
i. Adverse Change. Except as disclosed to Buyer by the Due Diligence Seller
Delivery Deadline, the Seller has no information or knowledge of any action by
adjacent landowners, or natural or artificial conditions on the Property or adjacent
property, which
could have a material adverse effect upon the Property or its value. There is no
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significant adverse fact or condition relating to the Property which has not been
specifically disclosed in writing by the Seller to the Buyer.
j. Incomplete Inaccurate or Misleading Information. The Seller doesn’t know of
any materially incomplete, inaccurate, or misleading information in the
documents, lists, and reports furnished to the Buyer under this Agreement.
k. Hazardous Substances on the Property. Except as disclosed to Buyer by the
Due Diligence Seller Delivery Deadline, that with respect to the period during
which the Seller owned or occupied the Property, and to the knowledge of the
Seller with respect to the time before the Seller owned or occupied the Property,
no hazardous
substances have been manufactured, processed, treated, handled, stored, installed,
recycled, disposed, or released, intentionally or unintentionally, on the Property,
and there have been no activities or events on the Property which could subject
the Seller, the Buyer, or any subsequent owner of the Property to damages,
penalties, injunctive relief, or cleanup or response costs under any environmental
law or common law theory of liability. To the knowledge of Seller, no hazardous
substances have been manufactured, processed, treated, handled, stored, installed,
recycled, disposed, or released, intentionally or unintentionally, on land which is
adjacent to the Property. Except as disclosed by the Seller prior to the Due
Diligence Seller Delivery Deadline, for the purposes of this paragraph,
“Hazardous Substances” shall mean any and all substances, materials,
chemicals, or wastes that now or hereafter are classified or considered to be
hazardous or toxic under any Environmental Law, or that are or become regulated
by any governmental authority because of toxicity, infectiousness, radioactivity,
explosiveness, ignitability, corrosiveness, or reactivity under any environmental
law applicable
to the Property, and shall also include: (a) gasoline, diesel fuel, and any other
petroleum hydrocarbons; (b) asbestos and asbestos containing materials, in any
form, whether friable or non-friable; (c) polychlorinated biphenyls; (d) radon gas;
and (e) flammable liquids and explosives.
l. Broker. Except for the Seller’s Broker, no broker, finder, or investment banker is
entitled to any brokerage, finder’s, or other fee or commission in connection with
the transactions contemplated by this Agreement based upon arrangements made
by or on behalf of Seller.
m. Statutory Disclosures. Except for the disclosures provided on Schedule 4.1(n),
no other disclosures are required by Seller.
Page 14 of 19
4.2 Representation and Warranties of Buyer. The Buyer hereby warrants,
represents, and covenants that all of the following warranties and representations are
true and correct as of the date of Buyer’s signature hereunder. For purposes of this
section “knowledge” shall mean the due and reasonable inquiry of Buyer.
a. Authority of Buyer. Buyer has the full right, power and authority to purchase
and acquire the Property from Seller as provided herein, and to perform Buyer’s
obligations hereunder. The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by all necessary organizational action on the part
of Seller.
b. Broker. Except for Buyer’s Broker, no broker, finder, or investment banker is
entitled to any brokerage, finder’s, or other fee or commission in connection with
the transactions contemplated by this Agreement based upon arrangements made
by or on behalf of Buyer.
c. Due Diligence. Except as expressly set forth in this Agreement to the contrary,
Buyer is purchasing the Property in its existing condition "AS IS, WHERE-IS,
AND WITH ALL FAULTS” with respect to all facts, circumstances, conditions
and defects, and, Seller has no obligation to determine or correct any such facts,
circumstances, conditions or defects or to compensate Buyer for same. Seller has
specifically bargained for the assumption by Buyer of all responsibility to
investigate the Property, and of all risk of adverse conditions and has structured
the Purchase Price and other terms of this Agreement in consideration thereof.
Buyer has undertaken all such investigations of the Property as Buyer deems
necessary or appropriate under the circumstances as to the status of the Property
and based upon same, Buyer is and will be relying strictly and solely upon such
inspections and examinations and the advice and counsel of its own consultants,
agents, legal counsel and officers. Buyer is and will be fully satisfied that the
Purchase Price is fair and adequate consideration for the Property and, by reason
of all the foregoing, Buyer assumes the full risk of any loss or damage (subject to
Section 5.3 below) occasioned by any fact, circumstance, condition or defect
pertaining to the Property.
d. No Warranty or Other Representation. Except as expressly set forth in this
Agreement to the contrary, Seller hereby disclaims all warranties of any kind or
nature whatsoever INCLUDING, WITHOUT LIMITATION, WARRANTIES
OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES,
whether expressed or implied including, without limitation warranties with
Page 15 of 19
respect to the Property. Except as is expressly set forth in this Agreement to the contrary,
Buyer acknowledges that it is not relying upon any representation of any kind or
nature made by Seller, or Seller's Agent, or any of their respective direct
or indirect officers, directors, employees or agents (collectively, the "Seller Related
Parties") with respect to the Property, and that, in fact, except as expressly set forth
in this Agreement to the contrary, no such representations were made. To the extent
required to be operative, the disclaimers and warranties contained herein are
"conspicuous" disclaimers for purposes of any applicable
law, rule, regulation or order.
Article 5—Additional Provisions
5.1 Assignment. This Agreement may NOT be assigned by the Buyer without the prior written
consent of the Seller; provided, Buyer may assign this Agreement without Seller’s consent
to an entity that is directly or indirectly controlled by, or under common control or affiliated
with, Buyer. Any other assignment or purported assignment of the Agreement shall be null
and void.
5.2 1031 Exchange. In connection with any 1031 exchange or exchanges, the Buyer may
assign its respective rights under this Agreement to a qualified intermediary or exchange
accommodation titleholder, as required by IRS Regulations. No such assignment will
modify or release any of the obligations of either the Buyer or the Seller under this
Agreement. Notwithstanding any such assignment or assignments, the Seller will convey
the Property directly to the Buyer. The Parties each agree to cooperate in any exchange
performed by the other party provided that they incur no additional liability, cost, or
expense as a result of the cooperation, but neither Party will be obligated to acquire or
convey any other property as part of the other Party’s 1031 exchange.
5.3 Risk of Loss. All loss or damage to the Property shall be retained by Seller until the
Closing.
5.4 Entire Agreement. This Agreement, together with any other documents incorporated
herein by reference and all related exhibits and schedules, constitute the sole and entire
agreement of the Parties to this Agreement with respect to the subject matter contained
herein and therein, and supersedes all prior and contemporaneous understandings,
agreements, representations, and warranties, both written and oral, with respect to such
subject matter.
5.5 Amendment and Modification. This Agreement may only be amended, modified, or
supplemented by an agreement in writing signed by each Party hereto.
5.6 Waiver. No waiver by any party of any of the provisions hereof shall be effective unless
explicitly set forth in writing and signed by the party so waiving. No waiver by any party
shall operate or be construed as a waiver in respect of any failure, breach, or default not
Page 16 of 19
expressly identified by such written waiver, whether of a similar or different character, and
whether occurring before or after that waiver. No failure to exercise, or delay in exercising,
any right, remedy, power, or privilege arising from this Agreement shall operate or be
construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power, or privilege hereunder preclude any other or further exercise thereof or the exercise
of any other right, remedy, power, or privilege.
5.7 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto
and their respective successors and permitted assigns, and nothing herein, express or
implied, is intended to or shall confer upon any other person or entity any legal or equitable
right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
5.8 Governing Law & Forum. All matters arising out of or relating to this Agreement shall
be governed by and construed in accordance with the laws of the State of Montana without
giving effect to any choice or conflict of law provision or rule (whether of the State of
Montana or any other jurisdiction).
5.9 Submission to Jurisdiction. The Parties hereby agree that any suit, action, or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in connection
with this Agreement or the transactions contemplated hereby, whether in contract, tort or
otherwise, shall be brought in the United States District Court for the District of Montana
or district court for the State of Montana, so long as one of such courts shall have subject-
matter jurisdiction over such suit, action, or proceeding. Each of the Parties hereby
irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the
fullest extent permitted by law, any objection that it may now or hereafter have to the laying
of the venue of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding that is brought in any such court has been brought in an inconvenient
form. Service of process, summons, notice or other document by certified mail to the
address set forth in Section 5.189 shall be effective service of process for any suit, action,
or other proceeding brought in any such court.
5.10 Attorneys’ Fees. In the event that any party institutes any suit, action, or proceeding,
including arbitration, against the other Party to enforce the covenants contained in this
Agreement (or obtain any other remedy in respect of any breach of this Agreement) or
arising out of or relating to this Agreement, the prevailing party in the suit, action or other
proceeding shall be entitled to receive, in addition to all other damages to which it may be
entitled, the costs incurred by such party in conducting the suit, action, or proceeding,
including reasonable attorneys’ fees and expenses and court costs. This includes, subject
to any limits under applicable law, attorneys’ fees for bankruptcy proceedings (including
Page 17 of 19
efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services.
5.11 Further Assurances. Each of the Parties hereto shall, and shall cause their respective
affiliates to, execute and deliver such additional documents, instruments, conveyances, and
assurances and take such further actions as may be required to carry out the provisions
hereof and give effect to the transactions contemplated hereby.
5.12 Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall be deemed to be one and the same
agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means
of Electronic Transmission shall be deemed to have the same legal effect as delivery of an
original signed copy of this Agreement (e.g. DocuSign). The Parties have consented to
execute this Agreement electronically in conformance with the Montana Uniform
Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA.
5.13 Time of the Essence. Time shall be of the essence in this Agreement.
5.14 Remedies. Seller’s sole and exclusive remedy is monetary damages against Buyer in
accordance with Section 2.4. Buyer may either require Seller to specifically perform, or
recover monetary damages against Seller as provided for in Section 2.4.
5.15 Severability. If any term or provision of this Agreement is invalid, illegal, or
unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not
affect any other term or provision of this Agreement or invalidate or render unenforceable
such term or provision in any other jurisdiction. Upon such determination that any term or
other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the parties as
closely as possible in a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the greatest extent
possible.
5.16 Relationship of the Parties. Nothing herein shall be construed to create a joint venture or
partnership between the parties hereto or an employer/employee or agency relationship.
Neither party hereto shall have any express or implied right or authority to assume or create
any obligations on behalf of or in the name of the other party or to bind the other party to
any contract, agreement, or undertaking with any third party.
5.17 Confidentiality. Until the Closing, Buyer shall treat the information disclosed to it by
Seller, or otherwise gained through Buyer's access to the Property and Seller's books and
records, as confidential, giving it the same care as Buyer's own confidential information,
and make no use of any such disclosed information not independently known to Buyer
Page 18 of 19
except in connection with the transactions contemplated hereby; provided, however, that
Buyer may, without the consent of Seller, disclose such information: (a) to its partners,
members, managers, employees, advisors, consultants, attorneys, accountants, prospective
and actual investors, and lenders (the "Transaction Parties"), so long as any such
Transaction Parties to whom disclosure is made shall also agree to keep all such information
confidential in accordance with the terms hereof and (b) if disclosure is required by law or
by regulatory or judicial process, provided that in such event, Buyer shall notify Seller of
such required disclosure, shall exercise all commercially reasonable efforts to preserve the
confidentiality of the confidential information, including, without limitation, reasonably
cooperating with Seller (at Seller's sole expense) to obtain an appropriate order or other
reliable assurance that confidential treatment will be accorded such confidential
information by such tribunal and shall disclose only that portion of the confidential
information which Buyer is legally required to disclose. Notwithstanding the foregoing, the
confidentially provisions of this Section 5.17 shall not apply to any information or
document which: (i) is or becomes generally available to the public other than as a result of
a disclosure in violation of this Agreement or (ii) subject to compliance with clause (b) in
this Section 5.17 above, is required by law or court order to be disclosed. In the event of a
termination of this Agreement, Buyer shall promptly return all such confidential
information to Seller.
5.18 Notices & Communication. All communication between the Parties regarding this
transaction shall be between the Agents Parties and be conducted via email at the
address(es) set forth on the first page of this Agreement and to the emails or cloud sites
identified on Schedule 5.17. Any notices, requests, consents, claims, demands, waivers, and
other communications hereunder (each, a “Notice”) shall be in writing and addressed to the
party at the email addresses set forth on the first page of this Agreement, with cc to their
respective Agent and to, in the case of Buyer, Morgenstern DeVoesick PLLC, 1080
Pittsford Victor Road, Suite 200, Pittsford, New York 14534, Attn: Jordan Morgenstern,
Esq., Email: jordan@morgdevo.com (or to such other email address that may be designated
by the receiving party from time to time in accordance with this Section) and sent to the
party and their respective Agent and counsel at the mailing address set forth on the first page
of this Agreement or set forth in this sentence. Except as otherwise provided in this
Agreement, a Notice is effective only if the party giving the Notice has complied with the
requirements of this Section.
5.19 Survival. The provisions of Sections 2.4, Article IV, and this Article V, shall survive the
termination of this Agreement and the Closing.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the
date first written above by their respective officers thereunto duly authorized.
Page 19 of 19
Seller:
City of Bozeman
By:
Name:
Title:
Date:
Buyer:
Del Monte Acquisitions LLC,
a New York limited liability company
By:
Name:
Title:
Date:
Page 20 of 19
Schedule 1.1—Additional Terms
Schedule 1.2—Specific Inspections
Schedule 2.4—Additional Seller Remedies Above Buyer’s Escrow
AmountEarnest Money
N/A
Schedule 3.2—Alternative proration of pre-paid rents and taxes and Special Assessment
Treatment
Schedule 3.5—Intentionally Omitted
Page 21 of 19
Schedule 4.1(n)—Seller’s Form Statutory Disclosures
[Various statutory disclosures depending on the nature of the Property, and the presence of
residential units]
RADON GAS: RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT,
WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY
PRESENT HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME.
LEVELS OF RADON THAT EXCEED FEDERAL GUIDELINES HAVE BEEN FOUND IN
BUILDINGS IN MONTANA. ADDITIONAL INFORMATION REGARDING RADON AND
RADON TESTING MAY BE OBTAINED FROM YOUR COUNTY OR STATE PUBLIC
HEALTH UNIT.
MOLD DISCLOSURE: There are many types of mold. Inhabitable properties are not, and
cannot be, constructed to exclude mold. Moisture is one of the most significant factors
contributing to mold growth. Information about controlling mold growth may be available from
your county extension agent or health department. Certain strains of mold may cause damage to
property and may adversely affect the health of susceptible persons, including allergic reactions
that may include skin, eye, nose, and throat irritation. Certain strains of mold may cause
infections, particularly in individuals with suppressed immune systems. Some experts contend
that certain strains of mold may cause serious and even life-threatening diseases. However,
experts do not agree about the nature and extent of the health problems caused by mold or about
the level of mold exposure that may cause health problems. The Centers for Disease Control and
Prevention is studying the link between mold and serious health conditions. The seller, landlord,
seller's agent, buyer's agent, or property manager cannot and does not represent or warrant the
absence of mold. It is the buyer's or tenant's obligation to determine whether a mold problem is
present. To do so, the buyer or tenant should hire a qualified inspector and make any contract to
purchase, rent, or lease contingent upon the results of that inspection.
A seller, landlord, seller's agent, buyer's agent, or property manager who provides this mold
disclosure statement, provides for the disclosure of any prior testing and any subsequent
mitigation or treatment for mold, and discloses any knowledge of mold is not liable in any action
based on the presence of or propensity for mold in a building that is subject to any contract to
purchase, rent, or lease.
LEAD BASED PAINT. Residential real property on which a residential dwelling was built
prior to 1978 may present exposure to lead from lead-based paint that may place young children
at risk for developing lead poisoning. Lead poisoning in young children may produce permanent
neurological damage, including learning disabilities, reduced intelligence quotient, behavioral
problems, and impaired memory. Lead poisoning also poses a particular risk to pregnant
Page 22 of 19
women. A risk assessment or inspection for possible lead-based paint hazards is recommended
prior to occupancy of this Premises. Risk assessments for lead based paint are the responsibility
of Buyer or the prospective buyer. Information on protecting your family from lead paint risks
can be found at: https://www.epa.gov/sites/production/files/2017-
06/documents/pyf_color_landscape_format_2017_508.pdf
The Property is equipped with smoke detectors [and Carbon monoxide detectors].
METHAMPHETAMINE CONTAMINATION DISCLOSURE STATEMENT: Pursuant to
the provisions of Title 75, Chapter 10, Part 13 of Montana Code Annotated, certain owners of
real property which has been contaminated with hazardous chemical residues created by the
clandestine manufacture of methamphetamine are required to notify any acquiring party of such
contamination and the certification of any remediation or decontamination project. Seller
represents that it has no knowledge of any such contamination of the Property, nor has it
received any notice of any such contamination of the Property. Seller represents that it has no
knowledge of the presence of methamphetamine in any habitable structure, nor has it received
any notice that methamphetamine is present in any habitable structure.
Megan’s Law Disclosure Statement. Pursuant to the provisions of Title 46, Chapter 23, Part 5
of the Montana Code Annotated, certain individuals are required to register their address with the
local law enforcement agencies as part of Montana's Sexual and Violent Offender Registration Act.
In order to provide the public with information so they can protect themselves and their children
from convicted sexual and violent offenders, the Montana Department of Justice maintains an
electronic database entitled the "Montana Sexual or Violent Offender Registry" which can be
found at http://www.doj.mt.gov/svor/. Buyer agrees to be solely responsible to conduct any
investigation regarding the existence of any individuals residing near the Property that are
registered as part of Montana's Sexual and Violent Offender Registration.
Noxious Weeds Disclosure Statement. The Buyer of the Property acknowledges Buyer is aware
that all property in the State of Montana potentially contains the existence of noxious weeds.
Further, the laws of the State of Montana require owners of property within this state to control,
and to the extent possible, eradicate noxious weeds. Pursuant to the provisions of Title 7, Chapter
22, Section 2116 of the Montana Code Annotated, it is unlawful for any person to permit any
noxious weed to propagate or go to seed on the person's land unless they adhere to a noxious weed
management plan as provided for under Montana law. Buyer acknowledges and agrees that before
purchasing the Property, Buyer is solely responsible to conduct any investigation of the Property
regarding the existence or potential existence of noxious weeds on the Property. The Seller cannot
and does not represent or warrant the absence of noxious weeds on the Property. It is the Buyer’s
obligation to determine whether noxious weeds are present. To do so, the Buyer may hire a
qualified inspector and make this Agreement contingent upon the results of that inspection.
Schedule 5.17—Additional Forms of Communication and Data Exchange
Page 19 of 19
Offer | Vertex Holdings
February 22nd, 2022
City of Bozeman Commission,
Please allow this letter to serve as a replacement for our initial offer
of $1,000,000.00 for a mixed-use redevelopment project of Fire Station 1
which included an affordable housing component. In response to your
Addendum of 2/2/22, we would like to make the following new offer:
Buyer: Paine Group, Inc. and/or assigns
Purchase Price: $2,916,000.00
Terms: Cash - closing to occur with 30-day notice from the City of
Bozeman but prior to 8/1/22
Contingencies: None
Affordable Housing: Buyer commits to construct approximately 4,000
square feet of residential space spread across four 2 Bedroom/2
Bath units of approximately 1,000 square feet each, within the greater
redevelopment. These units shall be initially sold to verified Bozeman
residents who qualify under the U.S. Department of Housing and
Urban Development’s standards of “Moderate Income”. They shall be
deed restricted to ensure only buyers qualified under the same
standards can purchase them for self-use for as long as the building
exists.
Deed Restriction: Each and every deed or other instrument hereafter
executed covering or conveying the Property shall include the
following deed restriction which are running with the land:The
Grantee shall use the Property as the Grantee’s principal residence,
and the Property shall not be used as a rental. The Grantee is an
individual that qualifies as a “Qualified Person”. A Qualified Person is
an individual: (1) who is a Montana resident and holding a valid
Montana driver’s license; and (2) whose household income from all
sources is between eighty percent (80%) and one hundred twenty
percent (120%) of the median family income level for Gallatin County,
Montana as established annually by the United States Department of
Housing and Urban Development (“HUD”) for Gallatin County, and
Grantee shall use the most recent median family income level
established by HUD for Gallatin County, Montana to confirm the
Qualified Person status. Grantee shall not sell, convey, or otherwise
transfer the Property except to a Qualified Person. All subsequent
Grantor’s shall verify and confirm that the Property is only sold,
conveyed, or otherwise transferred to a Qualified Person or Qualified
Persons.
The proposed deed restrictions shall be further detailed in the Declaration and
the Covenants, Conditions, and Restrictions which will be applicable to the
Property and further limit the uses and transferability of the Property. We are
more than willing to work with the City of Bozeman, including the City Attorney
Office, to ensure the final deed restrictions to the Property meet the intent and
desires of the City to ensure the Property qualifies as an affordable housing unit
after development and into the future.
Execution of the affordable housing component is contingent upon the City of
Bozeman approving the proposed $1.6 million in TIF funds and the execution of
a long-term lease of twelve parking spaces in a City operated facility.
The separate offer for an unrestricted purchase of Fire Station 1 shall
remain as is.
Sincerely,
Offer | Vertex Holdings (Second Offer)