HomeMy WebLinkAboutAgreement to Sell and Purchase, City of Bozeman and Bozeman Parking Commission and City Center Commerce LLCAGREEMENT TO SELL AND PURCHASE
THIS AGREEMENT, made and entered into this ~T day of November, 2007 is as
follows:
WITNESSETH:
WHEREAS, CITY OF BOZEMAN, MONTANA and the BOZEMAN PARKING
COMMISSION, hereinafter for convenience collectively referred to as "Seller", are the owners of
record of the following described Real Property:
Lots 13 through 24, inclusive of Block F of the Original Plat of the City ofBozernan, Gallatin
County, Montana, according to the official plat thereof on file and of record in the office of the
County Clerk and Recorder of Gallatin County, Montana. (Plat A-1); and
WHEREAS, the City of Bozeman is developing a parking garage facility and commercial
Retail Units on the Real Property with the intention of creating a condominium form of unit
ownership for the Real Property; and
WHEREAS, CITY CENTER COMMERCE LLC, a Montana limited liability company
hereinafter for convenience referred to as "Buyer", is desirous of purchasing from Seller the
following Retail Units pursuant to this Agreement:
Retail Units R-], R-2, R-3, R-4A, R-5, R-6 and R-7, including the right to use the
common and limited common elements associated with each unit, to be located at 1 /2
block site with Parcel C, COS C-1-F (Lots 13-24, Block F Original Plat of Bozeman)
in the City of Bozeman, Montana as described in RFP enlarged retail plans provided
in RFP deadline date of July 13, 2007 and as preliminarily described on Exhibit A
(the "Real Property"). At such time as a Preliminary Title Commitment of the Real
Property is completed pursuant to Section S, the legal description set forth on the title
commitment shall be attached to this Agreement as Exhibit A-1 in lieu of Exhibit A;
and
WHEREAS, Seller is desirous of selling to and conveying to Buyer the above described
Retail Units when they are created and defined as noted above.
NOW, THEREFORE, for and in cansideration of the terms, covenants and conditions and
the earnest money paid by the Buyer to Seller, the parties hereto do hereby agree as follows:
1 That the total purchase price for the Retail Units, including the right to use the
common and limited common elements associated with each unit, plus 28 parking spaces (as further
set forth in paragraph 18 herein, shall be ONE MILLION TWO HUNDRED NINETY THOUSAND
EIGHT HUNDRED FORTY-TWO DOLLARS ($1,290,842.00) /price per square foot of $132.05,
(the "Purchase Price") which Purchase Price shall be paid as follows:
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a. R-1 1,375 sgft = $ 181,577
b. R-2 1,312 sgft = $ 173,257
c. R-3 1,341 sgft = $ 177,087
d. R-4A 523 sgft = $ 69,071
e. R-5 1,559 sgft = $205,874
f R-6 1,600 sgft = $ 211,287
g. R-7 2,065 sgft = $272,691
Total 9,775 sgft Total =$1,290,842
A. $40,500.00 earnest money which was due five (5) business days after the acceptance
of the Letter of Intent dated August 22, 2007 by and between Buyer and Seller (the
"Letter of Intent") and which has been delivered to American Land Title on behalf of
the Seller.
B. The balance of the Purchase Price in the amount of $1,250,342.00 shall be paid on
or before the end of the Closing Period.
C. The above purchase price includes a development fee to be split 50/50
between the seller and buyer. The amount of the development fee will be
calculated by multiplying the agreed purchase price by five percent (5%). This
amount will be split between both parties equally. One half of the development
fee will be subtracted from the purchase price at closing and made payable to
Prudential Montana, with address of 2001 Stadium Drive Suite A, Bozeman, MT
59715. The remaining half of the development fee will be the responsibility of
the buyer with funds outside of this Agreement. Upon Seller's portion of the
development fee being paid in full at closing, Seller shall have na further
obligation of payment to Prudential Montana and Buyer shall indemnify and
hold Seller harmless from any and all claims, losses, damages, costs, costs of
action, costs of appeal, attorney's fees or other liabilities, of any kind or nature,
arising out of Buyer's obligation to pay one-half of the development fee.
2 An appraisal of the Real Property has been conducted by Seller at Seller's expense for
the sale purpose of satisfying the requirements required by Bozeman Municipal Code 2.05.050 and
2.05.06.0. The Purchase Price met the requirements of the Bozeman Municipal Cade for the
purchase of Bozeman city property pursuant to Bozeman Municipal Code 2.05.050 and 2.05.060.
3 "1"hc closing costs are to be divided equally between Buyer and Seller for the first
closing contemplated hereunder. if Buyer elects to close Retail Units on different dates, Buyer shall
be responsible for all of the closing costs for all closings subsequent to the first closing.
4 Within ten (10) business days after the execution of this Agreement, Buyer shall
procure (at Seller's expense) a commitment far a standard owner's policy of title insurance from
American Land Title Company of Bozeman, Montana in the amount of the Purchase Price showing
that Seller's title is free and clear of liens, encumbrances, and title defects, excepting the standard
American Land Title Association printed exceptions contained in the commitment. Should Buyer's
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examination of the title commitment disclose title irregularities which render the Real Property
unmarketable in Buyer's sole discretion, then Seller shall proceed with reasonable diligence at
Seller's expense to correct the Buyer's concerns if such irregularities are specified in a written notice
delivered to Seller on or before fifteen (15) days after the title commitment has been made available
to Buyer. If, within fifteen (l 5) days of receipt of such notice, Seller has been unable, after good
faith effort, to cure or remove any such title irregularities specified in the written notice, then this
Agreement maybe rescinded at the option of either party hereto, by written notice to the other party,
in which event the earnest money and accrued interest thereon shall be refunded to Buyer. Seller
shall cause at closing, at Seller's expense, an owner's policy of title insurance to be issued to Buyer
in accordance with the terms of this paragraph and with the agreed upon Declaration of
Condominium and Condominium Bylaws shown as an encumbrance.
5 The closing date for this transaction shall be on or before forty-five (45) business days
following Substantial Completion (deftned below) of the Retail Units on the Real Property, unless
hereinafter extended by mutual agreement of the parties and evidenced in writing; provided,
however, Buyer shall be entitled to close on the Retail Units either (i) all on the same closing date, as
determined by Buyer, or (ii) close on the individual Retail Units on different closing dates, as
determined by Buyer, throughout the forty-five (45) business days following Substantial Completion
of the Retail Units on the Real Property (the "Closing Period"). In the event Buyer elects to close an
more than one closing date, Seller shall only be responsible for payment ofone-half of the closing
fees incurred as part of the first closing. Buyer shall be responsible for the full amount of all
subsequent closing fees following the first closing. Also, in the event Buyer elects to close on mare
than one closing date, Buyers shall be deemed to have waived all contingencies contained in this
Agreement upon the completion of the first closing and shall have an affirmative obligation to close
on all of the remaining units within the time period set forth in this Agreement. Also in the event
Buyer elects to close on more than one closing date, Buyer shall. procure and pay all necessary
premiums to put in place a policy of liability and hazard insurance in policy amounts to cover the
appropriate insurable interests and as required under the Condominium documents. Said insurance
policy shall cover all interests of the parties' as they exist after each successive closing and shall
name Seller as an additional named insured on units closed on by Buyer. "Substantial Completion"
of the Retail Units on the Real Property will be deemed to have occurred when the Retail Units are
completed pursuant to Exhibit "B" and Exhibit "C" of this buy sell agreement as certified in writing
by the project Construction Manager/Architect. Substantial Completion shall occur no later than the
15t~' day of October, 2008, subject to any change orders as set forth in #19 herein.
A. On or before the closing date for each closing of the individual Retail Units,
Seller shall execute and/or deliver (ar cause to be delivered, in the case of the documents and
instruments to be executed by another party or other parties), the following:
1. An original Warranty Deed which shall (i) be in recordable form, (ii) convey
good, marketable and insurable fee simple title to the Retail Units (or the
separate Retail Units, if applicable) to Buyer, subject only to matters of public
record disclosed in the Preliminary Title Commitment, and (iii) be properly
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executed and acknowledged by Seller; the Deed shall be in form and
substance satisfactory to Buyer and the title company;
2. Original executed closing statements;
3. Original executed Affidavit, complying with the requirements of Section
1445 of the Internal Revenue Code, affirming that Seller is not a "foreign
person" as deftned therein; and
4. Original executed Certificate confirming the truth and accuracy as of the
Closing Date of the Seller's representations and warranties set forth in this
Agreement.
B. On or before the closing date or each closing date for the individual Retail
Units, Buyer shall execute and/or delivered to Seller the following:
The balance of the Purchase Price (as applicable for each retail unit) along
with necessary Buyer's closing costs;
2. Original executed counterpart closing statement;
3. Original executed Certificate confirming the truth and accuracy as of the
Closing Date of the Buyer's representations and warranties set forth in this
Agreement; and
4. Proof of a current, in force, policy of liability and hazard insurance on the
retail unit or units being closed with policy amounts to cover the appropriate
insurable interests of the parties and as required by the Condominium
documents . Said insurance policy shall cover all interests of the parties' as
they exist after each successive closing and shall name Seller as an additional
named insured on units closed on by Buyer.
6 Taxes and assessments shall be prorated between Buyer and
Seller as of the date of closing or the date of closing for each retail unit, if applicable.
7 Buyer and Seller agree that the risk of lass of the Real Property and each unit thereof
shall remain on Seller unti15:00 p.m. on the date of each closing for each unit.
8. After Seller's acceptance of the offer contained herein and Seller's execution of this
Agreement and upon deposit of earnest money with American Land Title Co., Buyer shall be
allowed to enter upon the Retail Units which is the subject afthis Agreement to conduct reasonable
tests and studies. Buyer shall take all steps necessary so that the testing and studies do not interfere
with the construction activity on the Real Property, to not cause any delays or increases of
construction costs and are coordinated in advance with both the Seller and the project Construction
Manager. Buyer shall not allow any lien or encumbrance to be placed upon the property and in the
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event Buyer should not elect to purchase the subject property, Buyer shall restore the property to its
original condition and deliver unto the Seller all of the studies and reports prepared, conducted or
commissioned by or on behalf of the Buyer. Buyer shall indemnify and hold Seller harmless from
any and all claims, losses, damages, costs, costs of action, costs of appeal, attorney's fees or other
liabilities, of any kind or nature, arising out of Buyer's inspection and testing of the Real Property.
The Release Date for the inspection contingency on the Real Property shall be April 1, 2008.
9 Buyer shall be entitled to complete possession of the retail unit ar units on the date of
closing of each retail unit ar units.
10 During the thirty (30) business days following Substantial Completion of the Retail
Units located on the Real Property, Buyer will be entitled to enter the Retail Units, to complete due
diligence on the Retail Units (the "Due Diligence Period"). Buyer may enter upon the Retail Units
during the Due Diligence Period io conduct such testing and studies and investigations as Buyer
deems reasonably prudent and appropriate. In the event Buyer fails, refuses ar neglects to close and
consummate this transaction within the time frame set forth above, Buyer agrees to restore the
property to its original condition and deliver unto the Seller all of the studies and reports prepared,
conducted or commissioned by or on behalf of the Buyer. Buyer shall take all steps necessary so
that the testing and studies do not interfere with the construction activity on the Real Property, to not
cause any delays or increases of construction costs and are coordinated in advance with both the
Seller and the project Construction Manager Buyer further agrees not to allow any lien, unpaid bill,
other charge or assessment to be levied or registered against the Real Property as a result of any
studies, investigations or assessments conducted or requested by the Buyer, Buyer shall indemnify
and hold Seller harmless from any and all claims, losses, damages, costs, casts of action, costs of
appeal, attorney's fees or other liabilities, of any kind or nature, arising out of Buyer's inspection and
testing of the Retail Units. The Release Date for the inspection contingency on the Retail Units shall
be thirty (30) business days from the date of Substantial Completion.
11 Conveyance of the Retail Units, including the right to use the common and limited
common elements adjacent to each unit, described above shall be by warranty deed and shall include
all air rights and interests owned by Seller, if any. Buyer agrees that if in the future the Buyer or
Buyer's successors in interest elect to add additional levels or stories to the Retail Units to be located
on the Real Property, Buyer or Buyer's successors in interest shall be required to pay all costs
necessary to upgrade the parking garage attached to the Retail Units so that the parking garage is in
compliance with all building codes, including, without limitation, any costs necessary to upgrade
structural, sprinkler or ventilation systems. Nothing contained in this paragraph is intended to be nor
shall it be construed to be any kind of approval, consent or authorization to add additional levels or
stories or otherwise expand the Retail Units. In the event Buyer or Buyer's successors in interest
desire to add additional levels or stories, they shall be required to comply with all land use laws and
regulations and obtain all necessary governmental reviews and approvals prior to proceeding. Seller
and Buyer hereby agree that notice ofthe requirements contained in this paragraph regarding future
expansion shall be placed in the public record in the Condominium Declaration in a section of the
Declaration that shall not be subject to amendment.
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12 Either party may involve this transaction in a 1031 tax deferred exchange without cost
or liability to the other party who agrees to cooperate in such exchange by executing such
assignments and other documents reasonably required to complete such exchange.
13 That Section 1445 of the lnternal Revenue Code provides that a Buyer of an interest
in real property in the United States must withhold tax if the Seller is a foreign person. In this
connection Seller represents, acknowledges and certifies Seller is not a nonresident alien far the
purposes of U.S. income taxation.
14 Within seven (7) business days after the execution of this Agreement, Buyer shall
provide Seller with an executed financing commitment letter in substantially the same form as
attached hereto as Exhibit D.
1 S This transaction is subject to and contingent upon the review and unqualified approval
by Buyer and Buyer's attorney of each and every one and all of the following conditions, failing
which this transaction shall be at an end, terzx~inate and of no further force and effect, and all earnest
money, together with accrued interest, shall be immediately returned to Buyer. The contingencies set
forth below shall be deemed satisfied and removed at the specified Release Date or otherwise on the
last day of the Due Diligence Period, unless Buyer objects to any one or more of the contingencies in
writing and delivers the same to Seller on ar before the appropriate date:
(a) Buyer is able to secure financing, acceptable to the Buyer, by the end of the Due Diligence
Period;
(b) Buyer's accountant advises Buyer to proceed with this transaction because there are no
accounting or tax issues adversely affecting this transaction or the Retail Units. Release date Apri11,
2008;
(c) Buyer's environmental consultants advise Buyer to proceed with this transaction because
there are no environmental issues adversely affecting the Retail Units. Release date April 1, 2008;
(d) Buyer's review and approval of an updated title commitment on the Retail Units;
(e) Buyer's inspection and Due Diligence of the Retail Units. Release date 30 days after
Substantial Completion;
(f) Appraisal of the Retail Units for at least the Purchase Price. Release date August 1 S,
2008;
(g) Buyer's review and approval of covenants,. Release date April 1, 2008;
(h) Buyer's attorney advises Buyer to proceed with this transaction because there are not legal
issues adversely affecting this transaction, the Retail Units or Retail Unit R-4A, if applicable; and
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(i) Buyer's review and approval that the Retail Units are built substantially as set forth in
Exhibits B and C except mutually agreed changes or those changes deemed necessary by Seller
pursuant to Paragraph 19 below.
Buyer shall, in writing, by certified mail, return receipt requested, postmarked no later than
the last day of the appropriate contingency period send to Seller at Seller's address for notice, buyer's
approval or disapproval or waiver of the contingencies above listed. If Buyer disapproves or does
not waive any of the contingencies above listed, Buyer shall send notice to Seller of Buyer's
disapproval of the contingencies herein, and the reasons why, within the time frame set forth for the
same. Seller shall have fifteen (15) calendar days from the date of notice in which to cure or correct
the same. If, the Buyer does not, in writing, sent by certified mail, return receipt requested,
postmarked no later than the five (5) days after the expiration of the opportunity to cure, send to
Seller at Seller's address for natice, that the contingency is approved, satisfied or waived, then either
Seller or Buyer may terminate this Agreement. This transaction shall be at an end, terminate and of
no further force and effect, and all earnest money, together with. accrued interest, shall be
immediately returned to Buyer.
16 This Agreement shall be contingent upon Buyer's anal Seller's review and approval of
the Condo Association Agreements, to be drafted and approved within sixty (60) business days of the
acceptance and full execution by all parties of this Agreement to Sell and Purchase. If Buyer or
Seller da not waive or release this contingency within sixty (60) business days of the this buy sell
agreement in writing sent by certified mail, return receipt requested, to the address for natice of the
other party, then this transaction shall be at an end, terminated and of no further force or effect, and
all earnest money, together with accrued interest, shall be immediately returned to Buyer. The Condo
Declaration and Bylaws shall include, without limitation, approval of maintenance responsibilities,
use of plaza area, insurance matters, allowable and expected uses for retail, restaurant, and office
space, and the limitations and responsibilities for the parking garage, transit stops and common areas
and limited common areas.
17 This Agreement shall be contingent upon the City of Bozeman's Parking
Commission's determination of and delivery of a Parking Commission letter approving cash in lieu
for thirty (30) additional parking spaces for the Retail Units for future use. The cash in lieu fee shall
be the current fee at the time the additional space or spaces are put into use. Buyer understands that
if future uses require more than thirty (30) additional parking spaces, Buyer or Buyer's successors in
interest shall be required to make new application for any needed additional parking spaces over and
above the additional thirty (30) spaces provided for in this paragraph. If Seller fails to satisfy the
above contingency, Buyer may terminate this Agreement. This transaction shall be at an end,
terminate and of no further force and all earnest money, together with accrued interest, shall be
immediately returned to Buyer. Release date for this contingency shall be April 1, 2008.
18 Buyer and Seller agree that twenty-eight (28) parking spaces shall be allocated for, but
not specifically assigned to, the Retail Units. The cash for such parking spaces is included in and is
part of the Purchase Price for the Retail Units at a rate of FIVE THOUSAND DOLLARS
($5,000.00) per parking space. The parking spaces associated with the Retail Units shall be held by
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the retail condominium association for the Retail Units and shall not be sold or otherwise transferred
by the retail condominium association.
19 Buyer and Seller agree that
(i) any change orders to AIA document A121CMC - 2003 and AGC Document 565 dated
June 19, 2007 by and between the City of Bozeman and Martel Construction, Inc.(hxhibit C)
or to Exhibit B that directly effect the appeazance, quality, or squaze foot size of one or more
of the Retail Units, common. areas and/or limited common azeas, or that causes a material
adverse affect to the same, said change order shall not be permitted unless deemed necessary
by Seller for the reason that unforeseen circumstances exist and a change order is reasonable
under the circumstances. The intent of the seller is to construct the Retail Units insubstantial
accordance with construction documents as listed on Exhibit B and C or as modified by
change order in accordance with this Paragraph;
(ii) Seller and Buyer may, by their mutual written agreement, enter into change orders with
the General Contractor that modifies the Retail Units. The parties hereby acknowledge that
the Seller will not consider any proposed changes which would extend the time for
completion of the project. Any mutually agreed upon changes to the Retail Units that
increase the cost of the construction project shall be the financial obligation of Buyer. Buyer
shall pay Seller the amount of the increased costs, to the extent they are known, at the time
the change order is executed by Seller. Once the additional costs are paid, the change order
shall be submitted to the General Contractor. In the event the agreed to change or changes
cost more than is initially estimated, Buyer shall immediately pay to Seller any additional
amounts, within five (5) business days ofwhen Buyer is notified in writing of the additional
amounts.
(iii) Any change orders to AIA document A121 CMC - 2003 and AGC Document 565 dated
June 19, 2007 by and between the City of Bozeman and Martel Construction, lnc.(Exhibii C)
or to Exhibit B that directly effect the appeazance, quality of anything other than the Retail
Units and its common and limited common elements are not subject to approval by Buyer.
20. All notices required by this Agreement shall be sent to the individuals listed in this
paragraph at the address specified. Either party may change the individual listed or address for
notice by sending written native of such change to the other party:
To Seller:
City of Bozeman
Attention James Goehrung
P.O. Box 1230
Bozeman, MT 59771
With copy sent to:
Thomas Anacker
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945 Technology Blvd., Ste. 102
Bozeman, MT 59718
To Buyer:
City Censer Commerce, LLC
Attn: Brian Caldwell
600 N. Wallace, Loft #3
Bozeman, MT 59715
With copy sent to:
Sabol Law Office
Attn: Hally N. March
2251J. Mendenhall
Bozeman, MT 59715
21 7"his offer may be accepted at any time prior to 5:00 p.nr-. Mountain Time on the 21st
day of December, 2007, by communicating such acceptance by delivery of a signed copy of this
Agreement, or by facsimile.
22 The parties agree that facsimile signatures of this Agreement shall be deemed binding.
23 Seller has made no investigation as the presence of Radon, a naturally occurring gas,
Buyer is advised to make an independent investigation of Radon and its presence in, on, or about the
subject property.
24 Mold & Mildew Disclosure Statement: Buyers of property in the State of Montana
should be aware that some homes and outbuildings may contain mold or mildew. There are currently
no Federal Guidelines to address the health problems associated with mold or mildew. Therefore, if
mold or mildew is a concern, it is highly recommended that the Buyers have the home(s) and/or
outbuilding(s) tested, prior to taking possession of the property.
25 Except as otherwise expressly provided in this Agreement, Buyer does not and shall
not assume any liability far any claims arising out of the occurrence of any event or the existence of
any condition, of which Seller has actual knowledge, prior to the end of the Closing Period with
respect to the Retail Units and Seller shall be responsible for any and all such claims, liabilities,
liens, obligatians, costs and expenses directly ar indirectly arising out of or in connection with (i) any
such claims resulting from property damage or injuries to persons, including death, caused by any
occurrence at the Retail Units or in connection with the Real Property's use, construction,
maintenance, operation or improvement prior to the end of the Closing Period; and (ii) any such
claims resulting from any work, labor or materials furnished to the retail units by any party other than
the Buyer prior to the Closing Date, whether or not a lien is filed against the Retail Units as a result
of the furnishing of such work, labor or materials.
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Buyer shall be liable for any and all claims, losses, costs and other charges or expenses
arising out of the ownership, possession, operation, use, completion of construction, remodeling,
maintenance and occupancy of the Retail Units arising after 5:00 p.m. on the date of closing for each
retail unit. Prior to 5:00 p.m. on the date of closing on each retail unit, such risk on the retail unit
shall remain on the Seller.
26 Buyer hereby acknowledges that it has examined the real property which is the subject
of this Agreement, that Buyer enters into this Agreement in full reliance upon its independent
investigation and judgment, that prior verbal representations by the Seller or Seller's agents or
representatives do not modify or affect this Agreement and that by signing this Agreement Buyer
acknowledges that it has read and understands the entire Agreement.
27 This Agreement, together with the attached Exhibits, and any addenda or amendments
signed by the parties hereto, shall constitute the entire agreement between Buyer and Seller, and
supersedes any other written or oral agreements between Seller and Buyer. This Agreement can be
modified only in writing, signed by Seller and Buyer.
28 Buyer and Seller agree that, in the event of any controversy regarding the earnest
money and things of value held by the Closing Agent, unless mutual written instructions aze received
by the Closing Agent, said Closing Agent shall not be required to take any action, but may await any
proceedings or at the Closing Agent=s option and sole discretion, may interplead all parties and
deposit any monies or things of value in a Court of competent jurisdiction and may utilize as much of
the earnest money deposit as may be necessary to advance the cost and fees required for filing such
action.
29 At any time, the parties may agree to submit any dispute azising out of this
transaction to mediation or arbitration. Parties, by agreement, shall specify mediation or binding
arbitration. The cost of mediation/arbitration shall be paid equally by the parties.
30. Seller's Re resentations and Warranties
Seller represents and warrants to Buyer, which representations and warranties shall be true as
of the closing date, as follows:
A. The Seller has fee simple title to the Retail Units and full authority to convey
complete fee simple title to the Buyer, and, to Seller's knowledge, there are no encroachments upon
the Retail Units.
B. To the knowledge of Seller, there are no easements, rights-of--way, or claims thereof
over or across the Retail Units which aze not or will not be recorded in the office of the Clerk and
Recorder in Gallatin County before closing except the agreed upon Declazation of Condominium and
Condominium Bylaws to be shown as an encumbrance.
C. Seller knows ofno boundary line, fence, building, zoning, use or easement disputes or
violations concerning the Retail Units and there are no written or oral agreements for use of the
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Retail Units with third parties. No portion of the Retail Units are possessed by any third party, nor
does any third party have any right to use the Retail Units or any claim to use the Retail Units by
prescription, adverse possession, or otherwise, except as disclosed on the public record in the Clerk
and Recorder's office.
D. To the best of Seller's knowledge, the Retail Units have not been used as a landfill or
dump and has not been used for the production, storage, release, or disposal of petroleum, asbestos
or hazardous wastes or substances, as defined under federal, state, and local laws, regulations and
ordinances affecting the Retail Units (referred to collectively herein as "hazardous substances"). To
the best of Seller's knowledge, no hazardous substances have been dumped, deposited, spilled,
leaked, discharged, placed or disposed of on, or escaped from, the Retail Units. Seller has provided
Buyer with a copy of a Phase 1 Environmental Site Assessment Report of the Real Property. There
are no underground storage tanks in or on the Retail Units.
E. Seller has not received notice of any violation of any applicable regulation, law or
order relating in any material respect to the Retail Units nor does Seller have any knowledge of any
notice from any governmental authority of any (a) pollution, health, safety, fire, environmental or
building code violations with respect io the Real Property; (b) a possible condemnation of any part
of the Retail Units; or (c) any other notice which would impact or pertain to the Retail Units.
F. To the knowledge of Seller, there are no claims, actions, proceedings or govenunental
investigations pending or threatened against the Retail Units or involving Seller or Seller's agents or
employees in connection with the Retail Units or against or involving any ofthe Retail Units; nor to
the knowledge of Seller is there any reasonable basis for any claim, litigation, proceedings or other
governmental investigation.
G. To the best of Seller's knowledge all utility services, including water, sanitary sewer,
storm sewer, gas, electric, telephone and cable television facilities, are available to service the Retail
Units with connections at the boundary lines of the Real Property which adjoins public streets or
passes through or are located on adjoining private land pursuant to easements running in favor ofthe
Retail Units.
1-i. To the best of Seller's knowledge, all information pertaining to the Retail Units
delivered by Seller to Buyer, including by way of illustration and not limitation, all contracts and
other documents, is and shall be, complete, true and accurate, in all material respects.
I. At or before the end of the Closing Period, Seller shall have paid or shall have caused
to pay all outstanding amounts due under all outstanding contracts affecting the retail unit or units
through. the end of the Closing Period.
J. Ai or before the end of the Closing Period, Seller shall have paid or shall have caused
to pay in full all outstanding monetary liens affecting the retail unit or units.
31 Buyer,s Representations and„Warranties
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Buyer hereby represents and warrants to Seller:
A. Both as of the date hereof and as of the closing date, that Buyer has full power and
authority to enter into this Agreement and to carry out the transactions contemplated by this
Agreement.
B. In the event Buyer closes on less than all of the Retail Units at the first closing, Buyer
represents and warrants that by consummating said first closing, it waives and releases all
contingencies contained in this agreement with respect to the remaining Retail Units and represents
that it has sufficient funds to cover the acquisition price for all remaining Retail Units and all
associated closing costs.
C. As of the Date of Closing, Buyer shall have obtained a policy of liability and hazard
insurance covering the retail unit or units being purchased in conformance with the terms of the
Agreement to Sell and Purchase between the parties. Said policy is in full force and effect.
32 Bu er's Remedies
It is agreed and understood by and between the parties hereto that if the Seller accepts the
offer contained in this Agreement but refuses or neglects to consummate the transaction within the
time period provided in this Agreement, the Buyer may demand immediate repayment of all monies
that Buyer has paid as earnest money, and upon the return of such money the rights and duties of
Buyer and Seller under this Agreement shall be terminated; or demand that Seller specifically
perform Seller's obligations under this Agreement; or demand monetary damages from Seller for
Seller's failure to perform the terms of this Agreement.
33 Seller's Remedies
It is agreed and understood by and between the parties hexeto that 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 declare the earnest money paid by
Buyer be forfeited; or demand that Buyer specifically perform Buyer's duties and obligations under
this Agreement; or demand that Buyer pay monetary damages for Buyer's failure to perform the
terms of this Agreement.
34 Miscellaneous.
IT 1S AGREED AND UNDERSTOOD by and between the parties hereto that all
representations and warranties of the parties herein and covenants to be kept and performed by the
parties hereto shall survive the closing and consummation of this transaction.
IT IS AGREED AND UNDERSTOOD by and between the parties hereto that this
Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, personal
representatives and assigns.
-12-
WITNESS our hands and seals the day and year first above written.
SELLER: CITY OF BOZEMAN, MONTANA BUYER: CITY CENTER COMMERCE, LLC
r
BY: Ci- / By:
Chris Kukulski Brian Caldwell
Its: City Manager
Its: Managing Member
SELLER: BOZEMAN PARKING COMMISSION
.~
BY:
Chris Pope
Its: Chairperson
-13-
COB IMF
CITY OF BOZEMAN
INTERMODAL FACILITY UNIT
RETAIL
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AGREEMENT TO SELL AND PURCHASE '"`~""
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AGREEMENT TO SELL AND PURCHASE
PAGE3OF5 ~'........ ~~
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EXHIBIT A -
AGREEMENT TO SELL AND PURCHASE
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PAGE 5 OF 5 ~~ ~ `~
___._.,~...4_
d Vf.RA44 THIRp IxOOFI LYG P~,pN ., A1~3
EXHIBIT B -AGREEMENT TQ SELL AND PURCHASE
I'arki~. ~~.ra ~
~ ~
A Parking Structure & Retail Building
131ack, Mendenhall & Tracy
KI)7Qt„i~n,M077fana DRAWING INDEX
CIVIL DRAWINGS
CS CIVIL COVER SHEET
SP CIVIL SITE PLAN
GP CML GRADING PLAN
UP UTILITY PLAN
ST STORM RECEPTDR TREATMENT PLAN
LS SITE LANDSCAPE PLAN
ARCHITECTURAL DRAWINGS
A1.0 OVERALL BASEMENT LEVEL FLOOR PLAN
Al ~ OVERALL ~D LEVF~,L F~LD~P AN
A1,3 OVERALL THIRD LEVEL FLOOR PLAN
A7.4 SR~TAII SUITE FLOOR PLANS
A1.5 NR TOWER FLOOR PLANS
A1.6 STNR TOWER FLOOR PLA!'IS
A7.7 ELEV, ALT. N0.1 FLOOR PLANS
A3.1 BUILDING SECTIONS
A3.2 BUILDING SECTIONS
A3,3 BUILDING SECTIONS
A3.4 BUILDING SECTIONS
A3.5 STAR S-1 SECTIONS
A3.6 STAIR S-2 SECTIONS
A3.7 STAIR 5-3 SECTIONS
D-1 TREE PLANTING AND STORM WATER
TREATMENT
Q2 WATER SERVICE/ FIRELINE SERVICE
D-3 SITE DETNLS
TCP-1 TRAFFIC CONTROL PLAN
TCP-2 TRAFFIC CONTROL PLAN
A2.1 PHASE 7 -OVERALL BUILDING ELEVATIONS
A2,2 PHASE 2 » OVERALL BUILDING ELEVATIONS
A2.3 STAIR TOWER BUILDING ELEVATR7N5
A2.4 RETNL SUITE BUILDING ELEVATIONS
STRUCTURAL
51,1 GENERAL NOTES & ABBREVIATIONS
51.2 GENERAL NOTES CONTINUED
51.3 GENERAL NOTES CONTINUED
52,1 FOUNDATION PLAN
52.2 GROUND LEVEL FRAMING PLAN
52.3 SECOND LEVEL FRAMING PLAN
52.4 THIRD LEVEL FRAMING Ma1N
52.5 ENLARGED STNR FRAMING PLANS
52.6 ENLARGED STAIR FRAMING PLANS
52.7 ENLARGED STNR ROOF FRAMING PLAN
53.1 FRAME ELEVATIONS LINE51, 2 do 3
53.2 FRAME ELEVATIONS LINES 4, 5 8 6
53.3 FRAME ELEVATIONS LINES 7, 8 & 9
53.4 FRAME ELEVATIONS LINES 10 11 812
53.5 M15C, FRAME, BEAM SHEAR 1M1fALL ELEV
54.1 TYPICAL CDhICRETE DETNLS
54.2 COLUMN ELEVATIONS 8 DETNLS
54.3 COLUMN ELEVATIONS & DETNLS
54.4 COLUMN ELEVATIONS 6 DETALS
55.1 TYPICAL P-T DETNL5 8 SECTIONS
55.2 CONCRETE DETNLS
55,3 CONCRETE DETAILS
55.4 CONCRETE OETNLS
56.1 TYPICAL STEEL DETAILS
56.2 FRAMING DETNLS
56.3 STNR FRAMING DETNLS
A4.1 WALL SECTIONS & RODE DETAILS
A4.2 WALL SECTIONS
A4,3 WALL SECTIONS
A4,4 WALL SECTIONS & INTERIOR ELEVATIONS
A5.1 STNR TOWER WINDOW & DOOR ELEVATIONS
A5.2 RETAIL WINDOW & DOOR ELEVATIONS
A6.1 STAIR TOWER WINDOW & DOOR DETAILS
A6.2 RETAIL WINDOW & DDOR DETAILS
A6.3 STAIR 8 RAILING DETAILS
A6.4 MISCELLANEOUS DETAILS
A6.S MISCELLANEOUS DETAILS
MECHANICAL
MP:O BASEMENT MECHANICAL PLAN
MP,1 GROUND FLOOR MECHANICAL.. PLAN
MP,2 SECOND FLOOR MECHANICAL PLAN
MP.3 THIRD FLOCIR MECHANICAL PLAN
MP.4 SEC!C~ND FLOOR PLAN MECHANICAL ADD. AL1. #1
MP.5 THIRD FLOOR PLMN MECHANICAL ADD. ACT. #1
MP.6 FOURTH FLOOR PLAM MECI-IANIGL ADD. AL.T sM 6
MM.1 URGE SCALE MECH. RETAIL - gFFiCE PLANS
MM.2 LARGE SCALE MECH. STAIR /ELEV. PLANS
MM.3 N.ARGE SCALE MECH. STAIR / ELEV. PLANS
MM.4 MECHANICAL DETAILS
MM.S MECHANICAL DETAILS & SCHEDULES
MFP.1 BASEMENT FIRE PROTECTION PLAN
MFP,2 BASEMENT FIRE STANDPIPE PLAN
ELECTRICAL
E.1 OVERALL BASEMENT ELECFRICAL PLAN
E.2 OVERALL GROUND LEVEL ELECTRICAL PLAN
E.3 OVERALL 2nd 8 3rd LEVEL ELECTRICAL PLAN
E.4 OVERALL 3rd & 4th LEVEL ELECTRICAL PLAN
E.5 RETAIL & OFFICE ELECTRICAL FLOOR PLANS
E.6 STAIR BSMT & GRND LEVEL LIGHTING PLANS
E.7 STAIR BSMT & GRND LEVEL POWER PLAINS
E.L1 STAIR 2nd & 3rd LEVEL LIGHTING PLANS
E.9 STAIR Intl & 3rd LEVEL POWER PLANS
E.10 MAIN SWITCH BRD & SCHEDULES
E•11 PANELRISER DIAGRAM
E.12 PANEL SCHEDULES & LEGEND
Bozeman lntermodal Facility
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EXHIBIT C -AGREEMENT TO SELL AND PURCHASE
"~~"~ ~~ Document A~ 2~ ~GMc - 2003 and AGC
Document 565
Standard Form of Agreement Between Owner and Construction Manager
where the Consfructian Manager is Also the Constructor
,ac~e~M~Nr
n~dc a"; ~~f• t;te 14th day of Jung in the year a1~ "I'w'o 7'ho!tsand 5cvcrt
ilrr crnrrlc, lrrdic~ltr~ rlrn•, rrrorrtll urr! yvrrarl ADDIT1pNS AND DIwL~.TIONS:
The author of this document has
e~TWEEN [he 05r rter' added infarmitiar, neened far its
r ~r:zrne crr!r! a~7'drrr,r.s) cgntplErUan. 't'he aulhdr Wray also
ha~'a revised !he, fhxt of the Drtginal
City c!t f3azcinan AIA standard form. An Aatiitrons and
P C? C3ux 1?30 De;e!rgn5 ~Tepon that Hates adden
l3na.:rnan, MT 59 i I K inignnatign as we•.I as rev'„ions zq
the standard form ?,,hxt is avariah'e
:ur:l tttc C,•vn.t[r'uc'.tiutt ~1ana~rer tram the corner and snould ne
rV..;»t r rctrd rtdtlre.S.cJ reviewed. A Vertical fee in the ieft
i71nrC~;n Ot :rtis doCllrl'tt'n[ IndIC.91e£•
' hlarfc:l C.'nrttitructictn, [n~. ~rhere the author rta., socklad
I:'.tt i Suutlt (.'ltnrc,h A5'c:11tc negessary Infgrmrttian anr~ :vhere
f3ttzcrnatt" 1•'I'T' 597 f ; the zauthor !u1s added to nr ;ia;a!a,:i
'ru:n ;n(: cariginetl AIA'~azt
i•k1C I'ri7l trC.L 18:
"this dr,~,um(tnt ha irr?C:Crtnrl; irrgai
.... rrp, ,..., ...,,... .,...,. C.,. ~ .......... ....... a:n
ertzctrney is ?ncquraged ;•rt"t respect
liU[uCtt:at [IICi;CrrlC>ilal f'[1C111ty' I:3 I}S C.C:n1~IGtian ar' TiQdltiL'atlan.
Iilrrck, ~'Il'n(~tCtl1rtll i:[ld •I [:lCy'
linrc:rrtttn, A1'i~ 59'i I S rho i~97 C;dlt!grt at AIA Dar.unte:nt
A20t, General Canniligns of the
Contract far Construcnan, is re!arred
tq hea•ain. Tnis Agreeament requires
' modi+idatidn if other general
I
hc .'~rchitcct is:
canC~hans tare utilized.
r .tirCllli f' !I rt(1 C! rlr:ll'E' S'.r
E'nu~;kt GG: L.l•rrl.an :lrchttccts, 1'.C.
..' 7 k? tit A1:cn, S[c. f)
finr.ettt.t!t, M"I" 59i I5
.I"hc. Owncr crud C[tnsiructiun '~'Isnafrr akrce ,tr; sct forth bclnw:
AIA t)ocumnnt A121 rTMGMp -- 2009 and AGG document 585. Copyf+ght YrJ t~91 artd 2003 by ~rhr: Anterican I^~,lilule pl Arrhilra:.: ~n~i (hva P.;;:,~tC.:At^;~
^.rrral .:prtractnrs atArneridrl. All rights reserved. 5'dA~:rifr~lL,:'t1d(; po::unnn[ i:=7rq:e: ~ 1;g :r.s, c:r5t yen?:1 t.nsr ~ ', S,r „a:.~e-.,~ .. .-.
.. „ , f w:.-~c•~>d ..;lruda"•han a- uis~i;itr.Nirm c! "5i_~ u~•~.vf~t^..^nt, ar &ny K;artioh cal rE, rr ,.-:y : . , at rri ,;:-vc.•re cowl r.n:~ ~. v~r;a , ~ .... - a ,
.•.v •ut.=d • u ~ _ rraxinrurn :. I:,r.t ra•ra~Sic u;~orir.,.r the !z3sr. 7riis docurrc~rn was produc!;d l)y A.A n'rwa•a ur 1~ 19'~D nr n~, ... - C`rdi:r
~.7 tiii::12b~422 1 wry.r;!~ nxt:,rr:; nn ~."•9`L~DD?, arty 5 n;fl 'nr re Sale
User No!os: ,
:3r±S~n ' • y
EXHIBIT D- AGREEMENT TO SELL AND PURCHASE
DRAFT FORMAT ONLY, FOR REVIEW PURPOSES
October 12, 2007
City Center Commerce, LLC
600 North Wallace, Loft 3
Bozeman, MT 59715
RE: Purchase of Commercial condo units located in the City of Bozeman. parking garage
Uear Managing Members:
Thank you for the opportunity far Yellowstone Bank to finance the purchase of the above
referenced commercial condo units to be constructed in the new City of Bozeman parking garage
located on Mendenhall. This commitment is subject to receipt and satisfactory review of all
normal Commercial Loan documentation, free and. clear title to the property, a professional.
appraisal verifying an acceptable loan to value and that no adverse changes have occurred in
your financial stature as o.f time of closing.
This commitment will be subject to all of the terms and conditions to be forwarded to you in our
commitment letter as you have requested. This commitment letter satisfies your requirements as
set forth in your buy sell agreement.
If you have any questions or comments concerning our commitment for the purchase of the
commercial condos, please feel free to contact at 406-5$7-9900. Yellowstone Bank is excited to
be part of this business venture as well as our continued financial relationship with your firm.
Sincerely,
Kurt Buchl
KJB:ss
DRAFT FORMAT ONLY, FOR REVIEW PURPOSES