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HomeMy WebLinkAbout08- Buy-Sell Agreement between City of Bozeman and Edmund Burke_ ~ F~~~capY Oct-~~~~~-b$ Co-~m. EUY-SE~.L AGREEMENT ~~,~n~. This contract stipulates th.e terms of sate of this real property. Read carefully before s:igrriing. This Is a legally binding contract. If oat understood, seek competent advice. THIS AGREEM>~NT is made at Bozeman, Montana, ,~"~~,, t_,~ , ~~08. 1. The City ofi Bozeman, Buyer-donee , (hereinafter called "Buyer") agrees to purchase, an undivided two-thirds interest, and to accept as a charitable contribution an undivided one-third interest, and Edmund Burke, Trustee of the Edmund Burke Revr~cable Trust Dated march ~, 198'1, Martha Benge Burke, Trustee of the Martha B. Burke Revocable Trust Dated March ~, 1861 and Thomas D. Burke, Seller-Donors, (hereinafter collectively called "Seller'") agrees to se([ an undivided two-thirds interest, and to donate an undivided one-third interest in the folfowirtg described real property (hereinafter referred to as the "Property") located in the City of Bozeman, Gallatin County, Montana, gen®rally described as: Lots 27, 28, 29, 3{~ and 31 of Block 217 of the Electric Heights Addition to the City of Bozeman, Gallatin County, Montana; Lots 1, 2, 3, ~, ~, 6, 34, 35, 36, 37, 38 and 39 of Black 21 of the Electric Heights Addition to the City of Bozeman, Gallatin County, Montana; Being approximately 1.75 acres. and tega{ly described as follows: See attached Exhibit "A"' All as shown on preliminary commitment for title insurance for the Property, which shall supersede the above description if different, and be appended to this Agreement as Exhibit ",g„ TtJGETHER with all interest of Seller in the mineral estate appurtenant thereto, vacated streets and alleys adjacent thereto, all easements and all other appurtenances thereto; and all structures, improvements, -and permanent fixtures thereon. 2. PERSONAL PRpPERTY: The fallowing items of personal property, free ref liens and without warranty of cond'rtian, are included: None -~ the Praaerty Is unimaraved. 3. WATER: Description of water, if any, tv be transferred: All appurtenant water rights owned by Seller, but Seller makes no representation that Seller has any water rights. Cost of transfer (DNRC fee) to be paid by Buyer. Page 1 of 9 ~. RECEIPT GF EARNEST MDNEY: • Waived. 5. PURCHASE PRICE AND TERMS OF I~ONATIdN: An undivided one-third interest of the properly, valued at $250,UDQ by Seller, will be donated to the City of Bazeman by the Seller to be used as a public parkin conjunction with adjacent property known as Burke Park. The City of Bazeman will pay the sum .af FIVE HUNDRED THOUSAND AND NQ!'IQO DOLLARS ($bQ1~,QOQ.QO) tv Seller as consideration fc~r an undivided twv- thirds interest in the property, and wi11 incorporate the property into Burke Park. (n order to facilitate a taxwfree exchange by 5eper, the $aAO,D(~O.OQ will be deposited with a Qualified intermediary pursuant to Section 't031 iRC. 6. B.UYER'S F7EPRE5ENTATIUN .C?F FUNDS: Buyer represents that it has sufficient funds for the payment of the purchase priceldvwn payment and closing costs to close this sale in accordance wifh this Agreement and is not relying upon any contingent source of such funds artless otherwise expressly set Earth herein. 7. APPRAISAL PROVISION: Buyer acknowledges that the Property has been appraised and is satisfied with the terms of this transaction stated in Paragraph 5. 8. CONTINGENCIES. The contingencies listed below shall be deemed to have been released, waived, ar satisfied, and the transaction shall continue to closing, unless by the date specified far each contingency, the party requesting that contingency has notified the other party nr other party`s agent 'rn writing that the contingency is not released, waived, ar satisfied. If a party has nati~ed the other party priorto the release date that a contingency is not released, waived, ar satisfied, the transaction is terminated, and the earnest money viii be returned to the Buyer, and nei#her party shall have any obligation to the other with regard to this Agreement or the transaction contemplated herein, unless the parties negotiate other terms yr provisions. TITLE CONTINGENCY: This offer is contingent upon Buyer's receipt and approval to Buyer's satisfaction of the preliminary title ,commitment for the Property. Release Date: Ten (10) business days from Buver ar Buyer's agent's receipt of the pre(iminar~, commitment. ~~~ ~~ ~ -~ ~~ PROPERTY INVESTIGATION: This offer is contingent upon Buyer's independent investigation of and satisfaction with any or sit of the #oHowing conditions relating to the Property, including but not limited to; covenants, zoning, access, easements, well depths, septic and sanitation restrictions, surveys ar other means of establishing the corners and boundaries, specia! improvement districts, restrictions affecting use, special building requirements, future assessments, utility hook-up and installation costs, environmental hazards, ar anything else that the Buyer deems appropriate. Releasa Date: Thirtv_f~g) days from the date of final execution, by all parties of this Agreement. Page 2 of 9 9. PROPERTIES I.NSREGTIC~NS: The Buyer is aware that Seller has not conducted an expert inspection or analyais of the Property ar its condition and, except as otherwise expressly provided in this Agreement grin anyAddendum hereto, make no representations to the Buyer as to its condition, does not assure that the Property will be satisfactory to the Buyer'rn all respects, or that the Property andlor improvements comply with current building and zoning codes and Buyer acknowledges that Seller IS NC]T a building inspector, building contractor, structural engineer, electrician, plumber, sanitarian, septic or cesspool expert, well driller Orwell expert, land surveyor, civil engineer, flood plain or wa#er drainage expert, roofing contractor ar roofing expert, or title examiner, or experts in identifying hazardous waste andlor toxic materials. 'l0. SELLER'S REPRESENTATION5 AND WARRANTIES: Seller represents and warrants to Buyer that: A. Seller is the fee simple owner of all of the Property; and that Seller has the right and authority to execute documents of conveyance far the Property to Buyer. B. Seller has not caused yr consented to any work an the Property which could result in the fling of construction liens against the Property, and Seller shall not permit such liens to arise prior to Glaring. G. Nv person, firm, or entity other than Buyer has any right to acquire any of the Property, and there is nv outstanding agreement to sell the Property to any third party. Seller has not granted and wil} not grant any third party any right of use of the Property after the Closing Date. No leases, licenses, agreements, or other use rights of any type or nature, with or in favor of any third party, whether written or oral, whether of retard or not of record, exist as to the Property, other than as have been disclosed by Seller herein below: D. All information and disclosures made by Seiler and its agents and representatives are true and correct tv the best of Seller's knowledge and belief as of date and time of Glosing. ~ 9. CQNVEYANCE: The Seller shall Canvey the Property by Warranty Deed, free of all liens and encumbrances except those described in the title insurance commitment as approved by Buyer. 12. TITLE INSURANCE: Seller, at Seller's expense, shall furnish Buyer Title Insurance evidenced by a standard farm American .and Titre Association ti#e insurance commitment in an amount equal tv the purchase price, committing to insure merchantable title to the Property in Buyer`s name, free and clear of all liens and encumbrances except: zoning ordinances; building and use restrictions; reservations in federal patents; beneficial easements, apparent or of retard; Special Improvement Districts; reef. estate taxes forthe Page 3 of 9 year in which closing occurs; and the standard pre-printed ®~ctusions. Buyer may purchase additional title coverage fiat an additional cast. It is recommended that Buyer obtain details from a title company. 13. MERCHANTABLE TITLE; If the Sellers title is not merchantable and cannot be made merchantable before the stated closing date, TEN {1 ~) ADDITIONAL DAYS SHALL BE ALLOWED FDR THE SELLER TC MAKE SUCH TITLE MERCHANTABLE. if title is not merchantable after additional specified time, this Agreement is tem~inated, unless Buyer elects to waive such defects and proceed to Clasing. The parties may agree to negotiate alternative terms or provisions. All mortgages, judgments, and Liens sha11 be discharged by the Seller and shall be satisfed at ar prior to Clasing or from 5etlerrs proceeds at the time of Clasing, unless otherwise provided herein. Seller agrees that no additional encumbrances, restrictions, easements or other adverse title conditions will attach or be placed against the title t4 the Property subsequent to the effective dat$ of the preliminary title commitment approved iay Buyer. 1~1, SPECIAL IMPROVEMENT ©ISTRICTS: Special Improvement Districts (including rural SIDs), including those that have been noticed to Seller by City/County, but not yet spread or currently assessed, if any, will be: paid off by SeNer at Clasing; 7GX assumed by Buyer at Clasing; DR {Qther~ All perpetual SIDS shall be assumed by Buyer. '15. PRORATION OF CC)STS: Clasing Agent's fee to be splt~uai~. Seller to ~ay for cast of dvcumerrt re ara inn :arrant Deed etc... Bu er to a cast of recordin Deed 16. CLC3SlNG DATE: The date of Clasing shall be June ~ 20iJ8. The parties may, by mutual agreement, agree to close the transaction at any time priarto the date specified. The Buyer and Seller will deposit with the closing agent all instruments and manias necessary to complete the purchase in accordance with this Agreement by such date. 1?. Pt3SSESSI4N: Seller shall deliver to Buyer possession of the Property and allow occupancy; on the date of Closing; DR on the date of recording the Deed, Notice of Purchaser`s Interest, aR K?CX (Other} Buyer is currently in possession under Buyer's license with Seller, said license shall terminate as of the date of Clasing. 18. CtJNDITI~N DF PROPERTY: Seller agrees that the Property shall be in the same Page~4of9 condition, normal wear and tear excepted, from the date afi the execution of this Agreement up to the time Buyer takes possession of the Property. '1 ~. NO~CIOUS WEEpS DISCLOSURE: Buyers of property in the state of Montana should be aware that some properties contain noxious weeds. The laws of the state of Montana require owners of property within this state to control, and to the extent possible, eradicate noxious weeds. For information conceming noxious weeds and your obligation as an owner of property, contact either your Iocal Cqunty extension agent or Weed Control Board. ~Q. BUYER'S REMEDIES: {If the Seller accepts the offer contained in this Agreement, but r®fuses or neglects to consummate the transaction within the t"rme period provided in this Agreement, the Buyer may_ (~) Demand that Seller specifically perform Seller's obligation under this Agreement; OR (2) Demand monetary damages from Seller for Seller's failure to perform the terms of this Agreement. 21. SELLER'S REMEDIES: If the Seller accepts the offer contained in this Agreement and Buyer refuses or neglects to consummate the transaction within the time period provided in this Agreement, the Seller may- (1) Demand that Buyer specifically perform Buyer's duties and obligations under this Agreement; OR (2) Demand that Buyer pay monetary damages for Buyer's failure to perform the terms of this Agreement. ~2. BUYER'S AND SELLER'S CERTIFICATION: By entering into this Agreement, each person or persons executing this Agreement, as Buyer or Seller, represents that he~she is eighteen (9~) years of age ar older, of sound mind, and legally competent to own real property in the State of Montana; and, if acting on behalf of a corporation, partnership, ar other non-human entity, that he/she is duly authorized to enter into this Agreement an behalf of such entity. 23. CONSENT T© DISCLOSE INFORMATION: Buyer and Seller hereby consent to the procurement and disclosure by Buyer, Seller, and their attorneys, agents, and oth®r parties having interests essential to th"rs Agreement, of any and ail information reasonably necessary to consummate the transaction described in this Agreement, specificaNy including access to escrows far review of contracts, deeds, trust indentures, or similar documents concerning this property or underlying obligations pertaining thereto. 24. RISK OF LOSS: Aii bss or damage to the Property to any cause is assumed by Seller through the time of closing unless otherwise specified. 25. TIME 15 OF THE ESSENCE: Time is of the essence in this Agreement and all clauses herein. page 5 of 9 20. BINDING EFFECT AN[7 AS5IGNABILITY: The Agreement is binding upon the heirs, successors, and assigns of each of the parties hereto. Buyer may only assigr- this Agreement with the prior written consent of Seller, which consent may be withheld by Seller in its sale and absolute discretion. Any assignment ar attempted assignment by Buyer without Seller's written consent shall be void ab intio. 27, 1037 E]CCHANGE: Buyer/Seller herein acknawiedges that it is or may be the intention of either Buyer andlor Seller to enter into an IRC 1 A31 tax-deferred exchange in connectron with this transaction. Each party agrees that its rights and obligations under this Agreement may be assigned for the' limited purpose of facilitating such exchange and that this Agreement may be made part of an integrated, Interdependent exchange agreement. Each party agrees to cooperate with the other in any manner necessary to enable the exchanging party to qualify far such exchange provided there is na additional cast or liability to non exchanging party. This Agreement shall not be contingent upon either party's ability to transact an IRC § 1 t;r31 exchange. 28, ATTC3RNElf FEES: In any action brought by the Buyer ar the Seller to enforce any of the terms of this Agreement, the prevailing party in such action shall be entitled to such reasonable attomey fees as ttte court or arbitrator shall determine just, including attorney fees on appeal. 29. C~?MIIfIISSI~?N: Not Applicable. 30. FACSlM1LE: The parties agree that a facsimile copy of this Agreement to Sell and Purchase which contains the parties' signature may be used as the original. 31. ENTIRE AGREEMENT: This Agreement, together with any attached exhibits and any addenda car amendments signed by the parties, shall constitute the entire agreement between Seller and Buyer, and supersedes any other written or oral agreements between Seller and Buyer. This Agreement can be modified only in writing, signed by the Seller and Buyer. 3~. COUNTERPARTS: A copy of this document may be executed by each individual/entity separately, and when each has executed a copy thereof, such copies, taken together, shall be deemed to be a full and complete contract between the parties. 33. ALTERNATIVE DISPUTE RESDLUTfON: At any time, the parties may agree to submit any dispute arising out of this transaction tv mediation or arbitration. Porkies, by agreement, shall specify mediation DR binding arbitration. The cost of such mediatianlarbitratian shall be paid equally by the parties. 34. REAL ESTATE BRf]KERS: The parties to this Agreement confirrn that no real estate licensees have been involved in this transaction. Page6of9 35. Ct]NTACT PERS[)NS: CONTACT PERSC]N FOR THE BUYER: Ghris Kukulski Bozeman City Manager 411 E. Main PO Box '[230 Bozeman, MT 59771-1230 4Qfi:582.2306 Ckukulski~bazeman. net CONTACT PERSON FOR THE SELLER: WITH COPY TO: Edmund Burke Burke McPheeters Bordner & Estes 737 Bishop Street, Ste. 3100 Honolulu, H196813 Ph. 808.523.9833 Fx. 8[}8.528.'[656 eburke aQbmbe-~law.com Stephen T_ Johnson Gallatin Valley Land Trust 25 N Willson, Ste E PD Box 702 ~ Bozeman, MT 59771-7021 Ph. 40~i.587,8404 x105 Fx 406.5$2.1136 Ste hen v t.or Jeremy J. IeFeber Berg, Lilly & Tollefsen, P.C. fine West Main Bozeman, MT 59715 Ph. 4p6.58?.31 S'T Fx. 406.587.3240 jlefeber ~ber~lawfim~.com 36. BUYER'S ACKNOIN~EDGMENT: Buyer acknowledges that it has examined the Property, that Buyer enters into this Agreement in fiull reliance upon its independent investigation and judgment, .that prior verbal representations by Seller does not modifiy or afFect this Agreement, and that by signing this Agreement Buyer acknowledges having read and understood this entire Agreement. 37. BUYER'S GflMMITMENT: Buyer agrees to purchase the Property vn the terms and conditions set forth in the above offer and grants to Seller until April 20, 2005. at S;OOpm Page 7 of 9 Niauntain pa li ht Time to accept, in writing, this offer. Buyer may withdraw this offer at any time prior to k~eing noted of Seller's written acceptance. If Seller has not accepted in wrifing by the time specil~ied, this offer is automatically withdrawn. IllIIIE HEREBY ACKNOWLEDGE receipt of a copy of this Agreement bearing myIvor signature(s). ti 1 Buyer's Signature: Buyer's Printed Name: ~ttr'r t3uyer's Address: ~8. SELLER'S C~MMiTMENT: We agree to sel) and convey tv 8uyerthe Property on the terms and conditions hereinabove stated- We acknow{edge a receipt of a copy of this Agreement bearing our signatures and that of the Buyer named above. Dated this ~° 7d' day of ~, 200$, at ' ~~ ~ p.m. ( la S T_ .Time). 11 11 SELLER: Edmund Bunke Trustee of the Edmund Burke Revocable Trust Dated March 2, 1981 Address_ /" ~ ~,4r~ v~.~A ~/ Martha Benge Burke Trustee of the Martha B. Burke Revocable Trust Dated March 2, 1951 Address: ,_,( ~~,s~i~C.v.~-~.~ ~~-- f j ~Lrrt~L. Thomas D. Burke Page 8 of 9 Address: / ~,~ " ql ~I3H`` 39. ACTIQN TAKEN, tF OTHER THAN ACCEPTANGE: C)ffer Rejected by 5elter Seller's Initials _.__ _ ! / Offer Modified per Attached Seller's Initials ! Counter offer __________ Page 9 of 9 SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT ("Agreement") is made this ~ day of Apra.1, 208, by and between, Edmund Burke, Trustee of the Edmund Burke Revocable Trust Dated march 2, 1987_, Martha Benge Burke, Trustee of the Martha B. Burke Revocable Trust Dated March 2, 7.981 and Thomas D. Burke (collectively ABurke®) axa:d the City of Bozeman. WHEREAS, the City of Bozeman and Burke entered into a Bargain Sale Agreement dated August ~, 1993, a copy of said agreement is attached hereto as Exhibit "A" and incorporated herein by reference ( "7.993 Agreement") ; WHEREAS, on or about August 27, 1993, Burke transferred certain real property to the City of Bozeman (.the "Burke Park Property"), all as mare specifically described in that certain Warranty Deed, recorded at Film 7.35, Page 1594 in the records of the ,County Clerk and Recorder, Gallatin County, Montana, a :copy of said deed a.s attached hereto as Exhibit "B", and incorporated herein by reference ("Burke Park need"); WHEREAS, pursuant to the terms of the 1993 Agreement and the Burke Park Deed, Burke retained certain real property adjacent to the Burke Park Property, which real property is more specifically described on the attached Exhibit "C", and incorporated herein by reference ("Burke Property„); SETTLEMENT AGREEMENT Page 1 of 7 WHEREAS, subsequent to the conveyance of the Burke Park Property, a dispute has arisen between Burke and the City of Bozeman as to the number of building rights .associated with the Burke Property; WHEREAS, the City of Bozeman interprets the 1993 .Agreement to a11aw Burke to construct on~.y two (2), one (1) story, single fama,ly residences on the Burke Property; WHEREAS, Burke d~,sputes the applicability of the 1993 Agreement as it relates to any future development of the Burke Property, as any restriction contained in the 199.3 Agreement merged into the Burke Park Deed at closing, and the Burke Deed contains no use restriction; WHEREAS, notwithstanding the foregoing, Burke also disputes that in the event the 1993 Agreement controls the development of the Burke Property, that such sets a cap on the development rights associated with the Burke Property, and instead, Surke maintains that the terms of the 1993 Agreement represent the minimum development rights associated with such property; WHEREAS, Surke maintains that up to five (5) single family residences may be placed on the Burke Property taking into account applicable subdivision and zoning regulations, the size and orientation of the Burke Property and the highest and best SETTLEMENT AGRBBMBNT Page 2 of 7 use of the Burke Property; and WHEREAS, irY an effort to avaa.d the unnecessary expense and delay .associated with a protracted legal dispute concerning the development rights associated with the .Burke Property, and to resolve any uncertainty over the allowable future development of the Burke property, the. City of Bozeman and Burke desire to clarify the number of development rights associated with the Burke Property. This Agreement may also facilitate the conveyance of the Burke Property to the City of Bozeman.. Sn the event the Burke Property is not conveyed to the City of Bozeman, pursuant to a Buy-Sell Agreement, this Settlement Agreement will be null and void. NOW THEREFORE, for and in consideration of the covenants and conditions expressed herein, and for X1.00 and other good and vaJ,uable consideration, the receipt and suffa.ciency of which is hereby acknowledged., the parties to this Agreement do hereby agree as follows: 1.. I]evelo meat _Ric~hts . Burke shall have three ( 3 ) devel©pment rights with regard to the Burke Property. Each development right shall be defined as the right to construct one {1), single story (excluding daylight basement), single family residence and one (1) guest SETTLEMENT AGREEMENT Fagg 3 of 7 house or other out buildings, as may be a1.lowed by applicable zoning and lot size restriction., and subject to all applicable codes. The Parties acknowledge that the property has been previously platted and that the lots first must be aggregated into three separate lots prior .to obtaining a building permit.. 2. Affirmation of Existing Right. The parties hereto agree that this Agreement does not represent the grant of any new development rights to Burke or the enlargement of any pre- existiang right. Rather this Agreement serves as an agreed to compromise and clarification of Burke's histvric~l develaprnent rights. 3. Abstract of Agreement. The parties agree that an abstract cif this Agreement may be recorded by either party hereto in the office of the Clerk and l~ecarder for Gallatin County, Montana . ~. 'Miscellaneous Provisions. A. Time. Time ie of the essence of this Agreetttent. B. Severability and Integration. It is agreed and understood by and between the parties hereto that in the event any one or morn of the provisions of this Agreement as herein set forth, reserved, and contained are found and determined to be unenforceable by a court of competent jurisdiction, or through 'the act or actions of the Legislature of this state, the remaining provisions of this SETTLEMENT AGREEMENT Page 4 of 7 Agreement shall nevertheless continue in full force and effect and be binding on the parties hereto, their heirs, personal representatives, and assigns. It is further agreed and understood by and between the parties hereto that this Agreement constitutes the entire agreement and understanding by and between the parties hereto in, connection with the real property which is the subject of this Agreement and the subject matter herein contained, and that this Agreement supersedes all prior and/or contemporaneous oral or written agreements and understandings of the parties which may conflict with the expressed terms, covenants, and conditions herein set forth, reserved, and contained on the part of the parties to be kept and performed. In this connection, no assertion; allegation, representations, covenant. or condition not expressed in this Agreement sha11 affect or be effective to interpret the intent of the parties, modify or change this Agaeement, or restrict the expressed provisions contained herein. C. Amendment. Tt is agreed and understood by and between the parties hereto that any modification or amendment to this Agreement. must be in writing and signed by each of the parties hereto in order for such amendment to be effective. ~. Non-waiver. It is agreed and understood by and between the parties hereto that a waiver by a party hereto of any breach of any term, covenant, or condition herein set forth, reserved, and contained to be kept and performed on the part of a party hereto shall not act as a bar or a precedent to any enforcement by such party of any subsequent breach by the other party, nor shall such waiver affect any of the other terms, covenants, and conditions herein set forth, reserved, and contained. u~ETTLEMENT AGREEMENT Page 5 of 7 E. Venue. The parties hereto agree that any action instituted, at law yr in equity to enforce the terms, covenants, and conda,tians of this Agreement as herein set forth, reserved, and contained, shall be brought in the Eighteenth Judicial District Court of Gallatin County, Montana. F. Binding Effect. It is agreed and understood by and between the parties hereto that all of the terms, covenants, and conditions herea.n set forth, reserved, and contained on the part of the parties to be kept and performed shall. be binding upon and inure to the benefit af, and be enforceable by the heirs, successors, permitted assigns, and personal representata.ves of the parties hereto and that any party executing tha~s Agreement in a representative capacity has the power and authority to duly and validly execute this Agreement. G. Counter arts and Facsimile Execution. Tha.s Agreement may be executed in counterparts and each separate executed copy, taken together, shall constitute one and the same instrument.. Signatures of the parties on this instrument, or any counterpart thereof, transmitted by facsimile shall. be valid and binding as originals. H. Headings. It is agreed and understood by and between the parties hereto that the caption headings in this Agreement are for convenience only, and do not apply to or .affect the construction or interpretation of any of the terms hereof. I. Attorne Fees. In any action brought by either party hereto to enforce any of the terms of this Agreement, the prevailing party in such action shall be entit~:ed to such reasonable costs attorney fees as the court or arbitrator shall determine just, including such costs and attorney fees on appeal and an fees or salar of Cit Attorne or staff attorne s. B~TTLFMENT AGR~FMENT Page .6 of 7 T~ A. ~ M , SUR~CE Edmund Burke, Trustee Edmund Burke Revocable Trust Dated March 2, ].981 ~~~ ~. `Martha Benge Burke, 'T'rustee Martha B. Burke Revocable Trust Dated March 2, 1981 Thomas D. Burke CITY of Bo.ZEMAN: %~ By . ,,. ,_.._ xt~: S~TTI,EMENT AGREEMENT Page 7 0~ 7