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HomeMy WebLinkAbout08- Amendment to Buy/Sell Agreement with City Center CommerceAMENDMENT TO BUY/SELL AGREEMENT This document amends the Agreement to Sell and Purchase between the CITY OF BOZEMAN, Seller and CITY CENTER COMMERCE, LLC, Buyer dated the filo~day of Nov~~~- > 200, and concerns the following described property: Reu~il Units R-l, R-2, R-3, R-4A, R-5, R-6 end R-7, including the right to use the rnmmon and limimd common elements adjacent to each unit, to be located at 112 block site with Parcel C, COS C-1-F (Lots I3-24, Block F Original Plat of Bozeman) in the Ci[y of Bozeman, Montana as described in RFP enlarged retail plans provided in RFP dcadlinc date oC July 13, 2007 and as prclirninnrily described on Exhibit A (the "Real property"). At such time as a Preliminary Title Cornmittnent oCthc Real Property is complctcd purstam to Sec[ion 5, the legal description set fart}[ on the title rnmmitment shall be attached to this Agreement as Exhibi[ A-1 in lieu of Exhibit A; For good and valuable consideration the receipt of which is hereby acknowledged, the parties hereto agree to the following Amendment. All terms and conditions of the Agreement to Sell and Purchase shall remain unchanged and are hereby incorporated by reference except as amended by the following terms and conditions: The last sentence in the first paragraph of Section 5, page 3, which reads: "Substantial Completion shall occur no later than the 15`h day of October, 2008, subject to any charge orders as set forth in #19 herein." Shall be amended to state as follows: "Substantial Completion shall occur no later than the 15`h day of February, 2009, subject to any charge orders as set forth in #19 herein." CITY OF BOZEMAN By: / - Date: ~v "' ~ ~ Z`~~ CITY CENTER COMMERCE, LLC oy._ `~P.PA 1° Date: ~~' 2 ~~©~ ,~ i ti AGREEMENT TO SELL AND PURCHASE THIS AGREEMENT, made and entered into this 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 of Bozeman, 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 t_Inits R-1, 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 RPP 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 5, the legal description set forth on the title commitment shall be attached to this Agreement as Exhibit A-I 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, far and in consideration ofthe 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 2$ parking spaces (as further set forth in paragraph l 8 herein, shall be ONE MILLION TWO HUNDRED NINETY TI~OUSAND 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: -~~ 'r 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 Tittle 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 no 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 sole 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 Code for the purchase of Bozeman city property pursuant to Bozeman Municipal Code 2.05.050 and 2.05.060. 3 "fhe 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 far al] 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 for 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 _~ ,~ 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 writtennotice delivered to Seller on or before fifteen (15) days after the title commitment has been made available to Buyer. If, within fifteen (15) 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 may be 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 (defined 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 on more than one closing date, Seller shall only be responsible for payment of one-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 more 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 Campletion shall occur no later than the 15`h 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 (or 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 ofpublie record disclosed in the Preliminary Title Commitment, and (iii) be properly a 's 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; Original executed Affidavit, complying with the requirements of Section 1445 of the Internal Revenue Code, affirming that Seller is not a "foreign person" as defined 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; 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 loss of the Real Property and each unit thereof shall remain on Seller until 5:00 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 tivhich is the subj ect of this 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 9b 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 or units on the date of closing of each retail unit or 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 to conduct such testing and studies and investigations as Buyer deems reasonably prudent and appropriate. In the event Buyer fails, refuses or 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, casts, 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 Retail Units.. The Release Date for the inspection contingency on the Retail Units shall be thirty (3U) 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 adj acent 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 priorto proceeding. Seller and Buyer hereby agree that notice of the 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. -5- 91 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 or units on the date of closing of each retail unit or 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 to conduct such testing and studies and investigations as Buyer deems reasonably prudent and appropriate. In the event Buyer fails, refuses or 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, 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 Retail Units.. The Release Date for the inspection contingency on the Retail Units shall be thirty (3U) 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 priorto proceeding. Seller and Buyer hereby agree that notice o1'the 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. -5- 91 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 Internal 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 for 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. 15 Tlais transaction is subj ect 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, terminate 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 ofthe Due Diligence Period, unless Buyer objects to any one ormore of the contingencies in writing and delivers the same to Seller on or before the appropriate date: Period; (a) Buyer is able to secure financing, acceptable to the Buyer, by the end ofthe Due Diligence (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 April 1, 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 Retai] Units; (e) Buyer's inspection and Due Diligence of the Retail Units. Release date 30 days after Substantial Completion; 200$; (f) Appraisal of the Retail Units for at least the Purchase Price. Release date August 15, (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 -6- 92 (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 ofthe 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 notice, 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 retw-ned to Buyer. 16 This Agreement shall be contingent upon Buyer's and Seller's review and approval of the Condo Association. Agreements, to be drafted and approved within sixty (60) business days ofthe acceptance and full execution by all parties of this Agreement to Sell and Purchase. If Buyer or Seller do 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 notice 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 Bowman'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 DQLLARS ($5,000.00) per parking space. The parking spaces associated with the Retail. Units shall be held by _7_ 93 the retail condominiwn 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 A121 CMC - 2003 and AGC Document 565 dated June 19, 2007 by and between the City of Bozeman and Martel Construction, Inc.(Exhibit C} or to Exhibit B that directly effect the appearance, quality, or square foot size of one or more of the Retail Units, common areas and/or limited common areas, or that causes a material adverse affect to the same, said change arder 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 in substantial 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 lnodif es the Retail Units. T'he parties hereby acknowledge that the Seller v<~ill 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. 1n the event the agreed to change or changes cost more than. is initially estimated, Buyer shall immediately pay to Seller any additianal amounts, within five (5) business days of when Buyer is notified in writing of the additional amounts. (iii) Any change orders to AIA document A121CMC - 2003 and AGC Document 565 dated June 19, 2007 by anal between the City of Bozeman and Martel Construction, Inc.(Exhibit C) or to Exhibit B that directly effect the appearance, 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 far notice by sending written notice 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 -8- 94 945 Technology Blvd., Ste. 102 Bozeman, MT 59718 To Buyer: City Center Commerce, LLC Attn: Brian Caldwell 600 N. Wallace, Loft #3 Bozeman, MT 59715 With copy sent to: Sabot Law Offiice Attn: Holly N. March 22S E. Mendenhall Bozeman, MT 59715 21 This offer may be accepted at any time prior to 5:00 p.m. 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 Lxcept as otherwise expressly provided in this Agreement, Buyer does not and shall not assume any liability for 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, obligations, costs and expenses directly or 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. 35 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 are 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 maybe necessary to advance the cost and fees required for filing such action. 29 At any time, the parties may agree to submit any dispute arising 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 Representations and Warranties Seller represents alzd wan•ants to Buyer, which representationsand 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. "1'o the knowledge of Seller, there are no easements, rights-of--way, or claims thereof over or across the Retail Units which are not or will not be recorded in the office of the Clerk and Recorder in Gallatin County before closing except the agreed upon Declaration of Condominium and Condominium Bylaws to be shown as an encumbrance. C. Seller knows of no 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 -10- 96 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 def ned 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 I 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 to 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 governmental 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 of the 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 of the Retail Units. H. 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. At or before the end ofthe Closing Period, Seller shall have paid or shall have caused to pay in full alI outstanding monetary liens affecting the retail unit or units. 31 Buyer's Representations and Warranties -11- 97 Buyer hereby represents and warrants to Seller: A. Both as of the dale 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 Buyer'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 hereto 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 IS AGREED AND UNDERSTOOD by and between the parties hereto that all representations alid 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. \~ ~ ~j2 / 9~ i WITNESS our hands and seals the day and year first above written.. SELLER: CITY OF BOIEMAN, MONTANA By: Chris Kukulski Its: City Manager SELLER: BOZ,EMAN PARKING COMMISSION BY: Chris Popc Its: Chairperson BUYER: CITY CENTER COMMERCE, LLC By: "= -~ -13- 99 Brian Caldwell Its: Managing Member .Y ~ COB IMF CITY OF 80ZEMAN INTERMODAL FACILITY UNIT RETAIL RETAIL UNITS; R-1 , R-2 , R-3 , R-4A, R-5, R-6, & R-7 -~ ~ •. n I ~ ~ ~ t i; I J COMMON ~ '~ .~ ELEMENT I II `` I is I RE7A:- SUITE RZ7A t1 UU:7E ~ P.ETAII $6 tE cr. ..R~' RA~ ~z R.71 - LIMITED ~; I jj COMMON ~ I I ELEMENT E ~~ _~~ ~_~_....~_~~. _~_~-. ~t ~, RETAIL SUITES PLAN /~ ~N PUBLIC \. 1 RIGNT-OF-WAY ~-~ ~. a -~ 4 _3°. =°-y a ~ +6 -~-+-~-+ +'Y ~+ 4 3 L t i ~ ~' J LI f I !1 ~ (j 1 i. I i ~ ., (~ a RELAY! SUi7F REiii1 SU~7E f`.t (1:. _uTT~ R-5 I i i R-S I1~7 ~-1 y i n r II I ~ ~ p. ~~ w Q in i i 4 ~ ~ .- ~___ --____ ~ I I ~_._.-- ---...Y 1 ..__~.~_ ._ ~ i i RETAIL SUIT85 PLAN , ~ ~ ~ + 5~-6~ --~ _.. -'~ NOTE: 6lmonabn® ato opproilmalo, D:raonslnns oto to mSddlo o! xalta a to oula!da at tlud amli al atud and rnsaonr7 xalfa. ,. ~1 ( f RGTAC. ^rUtEf ° ( R-tA ~ RdF): v I ._ aq 51r RETAIL SUITe PLAN ~~\ EXHIBIT A AGREEMENT TO SELL AND PURCHASE PAGE 1 OF 5 c~~„~r ai rnt co.i~•, PRK ~ Ykl i•i( ~~:;~, _ _ __ ,_ _~ EMAILEA~RETAA. p{•AYa R4~~ ~ • 1~_ ~._.~ . ~. _. 100 COB IMF CITY OF BOZEMAN INTERMODAL FACILITY UNIT RETAIL COMMON ELEMENT LIMITED COMMON ELEMENT PUBLIC RIGHT OF-WAY <: ~ ~> ~ > < v r r v , rx o ~ ~., _ ~:, ~;~ ~ ~ ~ ,: , y S ~ -. ,~_~~_ ~-..: __:..__ __ ._.__-d:... . ~ ~ ~~ J rr ~ r` no ` ~ '~ r '*' r ,/ ~ ~ ~ ~` t. t ~ I k'I ~ + ~ I _ C s i ~ ! ., ~ ~ E ~ ~ ' ! ~a ~ ~ ~ Y ~ I ~ ~ a ~ _ y ~r ~ I{~ ~~ ~ I ~ .~ '8 41 }}} ' ~ $ti '~I~ I y i;~I~ b! ~ ~ I ibl~ o , I la ~ I r is /~ y ~ ~~ O Rk , I ~' - ~ .... .~.... -----.._ ~``~ ~ o i } a ¢ ^ `' ~ o r ~ ~~ li -1 a T +' + ~." ~~ ~ .-0 r V~ ~ . ~ ~ ~ ~~ ~:~ ~ • - /~ a ,.1 Y ' I 7 ~ I ~ ~,. i~K ~ ~~ ~ iy .l . ~ i a V SY o - o. ~~,~ ~&„ L~ V r ~ ~ L ) lv , / ~ ~~ O~CRA_~ BAS~~'L`,' ,.E'JL.. '" CCR °_A\ ~ s:ti.~ a Bo ZOman Intarmodol Facilit ~ EXHIBIT A - L y PRK AGREEMENT TO SELL AND PURCHASE ~AGE20F5 --~ OVEpAII AASE~IEHT LEVEL PLAN A1.O ~ 101 1 G ti COB ! M F <~. <` °~ L ..~ ~? ~- CITY OF BOZEMAN INTERMODAL FACILITY UNIT ' - -- .. , 0 0 RETAIL ~o :~ . :p • ~G RETAIL UNITS, R-1 , R-2 , R-3 , ~ P R 4A. R-5, R-5, &~ R-7 ~,.~ ~. ~ ...$ . ~. ,.,, ~ ~G COMMON ,,~~~ ~~ ° ~ (s _ ~~_ -~ ; `I~ ~ G 7~ ~ 1~i1 c ll _ ~ i I~.~ ~. A I ' ~b LIMITED I 3 I e_ -: a- ' `g--_ -_- ~-~,~ `"• COMMON i 8 i ~Z~g Y~x K \~.'x~ ~.t ~, ..,y ~ ~ ELEMENT ~{~---~:- of § ~ ~ ~~ ~ p _ ' •.', ~ ~ ~ppp '~~ i +~ y Y~ 1 Ir- Y- y~ '~ :~ ? ` PUBLIC i i~'"' a F RIGHT-OF-WAY ' ~~ r' ~ •~ ~! - :' ~ ~ ~•~ii ~ ~ ' .~ , ~ i ~-.ti _ S ~ : ~ . >i .. '~ ~ f ' +;q~~ n b~~ ~ N ~ I! I~ A ~ d r I • ~ jr.T+ .ry~4. ~ ` ~~S ~ N 5 l ;~. a ~ ~ +~ ~ N YS'Y! // m ~.- I pp ,fit I ~~-0 p ~ ~~ + ~ iQ ~ ~ m ~ i~ I ~ ~. roe ~~ ~ " ,~ ~;. a • m ~.F >> j~ L A ~ a ^F ~° ~ ~ ~ -~ ~ ~ ~ --..,~, Egg . ~ .i -: ., . _.. .~ ~ _._. _.~ .... ~-1 ~~ r_ ~~.:._:~ _ - - __ 4~ a> ~; , e, +• ri'/ Y !t .~ .. i c .~. s ~ F />..1 /t ,1 • `. ~T 4.. \y/ `t /`'~ ~~: ~~ OVERA~_ GRO„'v~ _EVL_ _ MGR P_AO EXHIBIT A - aozoRa~ ~~iD~madn~ Far,~,,Y P~K__. AGREEMENT TO SELL AND PURCHASE k PAGE30F5 ~- ~ ___ OYENALL GPGUND LE VEI PLAN ~---~~A ~. 1_y 102 ~. ~ a COB IMF ~`. `.. t~ .~> ~~. CITY OF BOZEMAN ~` r ° ~ ` INTERMODAL FACILITY UNIT ~~ - ---~_~ ~_... o RETAIL `` `~ `~ ~----.. _ _ _ -_,---- ~ E, ~~ RETAIL UNITS; R-1 . R-2 . R-3 , ~ ( ?;;~ n ~ c ~ ~ ~~`~'"' R-4A, R-5. R-6, 8 R-7 - i d~. ~ ~~~ 6 COMMON t r '" ~~~~ ~~ ~ * ti ~ I _` _ -~ ~* t ~' r ELEMENT ~ ~ i F; ~~ t~~ H~ ~ t ~ ~ 1 _ rr g`,Fa ~ ~'~l ~ t' Y~ .., ~- t it .l. __ -- i,1 LIMITED - COMMON II ELEMENT a II - ,~ ~, RIGHT-OF-WAY s ~ . , ° ~ ~ ~ i ~. ~, ~,~~ y , a I~-~.1 ~ •~ `~~ .__' Y r. ~~ A- ~..~ ~, ;E}-; w , ~ ~ ,_ ~ ~ ~ ~~~ A ~ 'OIL ~3~ .. ~ ~ ~ , < ~ ' I d ~ ~., F - x t. y~ f ., ~ a ~ ~ n `J "`~ V -, s~ ~ ~.~ t - ~ J `~ ` „. m C~ ~ -s.. t- ~. ._"- -._-~. -~.~. - ~ A !, Y ~ ~ OJcRA:._ SEGCND . Tr RG ..cVE~ (?"x'~GAL; F_COR ~,.A\ Bozoman lotormodnl Facdliy pRt~ I EXH1B{T A - --~' AGREEMENT TO SELL AND PURCHASE _.._ . _ . . PAGE 4 OF 5 OVERAII $ECCNA LEVEL PLAN A1.2 103 ~. ~ COB IMF CITY OF BOZEMAN INTERMODAL FACILITY UNIT RETAI L COMMON ELEMENT UNITED COMMON ELEMENT PUBLIC RIGHT-OF-WAY v r ~c rt ~Y SS y \~ ~ /~:. ~,~` r.. ~i ;~ ,~. n ,.~ -- ~, -, I ~~ ~ _ ~ .~; ~ ~ ~. ~ ,, r 's R ~ . o~~~j n..~ _. lr,.~ t. ~/ __ _ wr ~? .~. {{ ~ j /~.~ ~Y ,. ~S k S c. t. r~ Z" ~ ~' ~ r G ~ f.~ o ~~ } y \ ~• ^/YErZP.,-.. 'n 4~ / ' CJQTn I~CO' ~~ JET :'YQ GA_ '.,CC4 F Acv EXHIBIT A - ~---___,; pRK-1 AGREEMENT TO SELL AND PURCHASE ~``~-~~n 'n~a~m~odal FauMly ~~ PAGE50F5 ~---- _I ~, OVLkALL TF4ik0 IkOOFI lYi_P4AN A1.3~ .r ,~G 104 :..t ~ ` a EXHIBIT B -AGREEMENT TO SELL AND PURCHASE ~~ Parking Sfructure 8z Retail Building ,~ DRAWING INDEX N ° " ~ CIVIL DRAWINGS ARCHITECTURAL DRAWINGS ic sEC ri or rs ~:z sui oir A3.3 BUILDING SECTIONS CS CIVIL COVER SHEET A1.0 OVERALL BASEMENT LEVEL FLOOR PLAN A3.4 BUILDING SECTIONS SP CIVIL SITE PLAN A1.1 OVERALL GROUND LEVEL FLOOR PLAN A3.5 STAR 5-1 SECTIONS GP CIVIL GRADING PLAN A1.2 OVERALL SECOND LEVEL FLOOR PLAN A3.6 STAIR S-2 SECTIONS UP UTILITY PUN A1.3 OVERALL THIRD LEVEL FLOOR PLAN A3.7 STAIR 5-3 SECTIONS ST STORM RECEPTOR TREATMENT PLAN A1 5 L Wg S NR TOWE F 00RP S SITE LANDSCAPE PLAN l . F P R l. A4,1 WAIL SECTIONS & ROOF DETAILS . A1.fi STAIR TOWER FLOOR PLANS A4.2 WALL SECTIONS D-1 TREE PLANTING AND STORM WATER Ai J ELEV. ALT. N0.1 FLOOR PLWS A4.3 WALL SECTIONS TREATMENT A4.4 WALL SECTIONS & INTERIOR ELEVATIONS D-2 WATER SERVICE/ FIRELINE SERVICE D-3 SITE DETAILS A2.1 A2.2 PHASE 1 -OVERALL BUILDING ELEVATIONS PHASE 2 -OVERALL BUILDING ELEVATIONS A5,1 STAIR TOWER WINDOW & DOOR ELEVATIONS A2.3 STAIR TOWER BUILDING ELEVATIONS A5.2 RETAIL WINDOW & DOOR ELEVATIONS rCP•1 TRAFFIC CONTROL PLAN TCP-2 TRAFFIC CONTROL PIAN A2.4 RETAIL SUITE BUILDING ELEVATIONS A6.1 STAIR TOWER WINDOW & DOOR DETAILS A6.2 RETAIL WINDOW & DOOR DETAILS A6.3 STAIR & RAILING DETAILS A6.4 MISCELLANEOUS DETAILS A6.5 MISCELLANEOUS DETAILS MECHANICAL STRUCTURAL 51.1 GENERAL NOTES & ABBREVIATIONS MP.O BASEMENT MECHANICAL PLAN 51.2 GENERAL NOTES CONTINUED MP.1 GROUND FLOOR MECHANICAL Pt.AN 51,3 GENERAL NOTES CONTINUED lV~P.2 SECOND FLOOR MECHANICAL PIAN MP.3 THIRD FLCrOR MECHANICAL PIAN 52.1 FOUNDATION PLAN MP.4 SECOND FLOOR PLAN MECHANICAL ADI` hl I J' 52,2 52,3 GROUND LEVEL FRAMING PLAN SECOND LEVEL FRAMING PLAN MPS THIRD FLC?OR PLAN MECHANICAL ADD.:+L} '. 52.4 THIRD LEVEL FRAMING PLAN MP.6 FOIiRTH FLOOR PLAN MECHANICAL ADD ~i ~~ 52,5 52.6 ENLARGED STAIR FRAMING PLrWS ENLARGED STAIR FRAMING PtrWS MM.t 1r1RGE SCALE MECL3. RETAIL ~ OFFICE PIAt~~ 52.7 ENUIRGED STAIR ROOF FRM~LING PLAN ,~,7, LARGE SCALE MECH. STAIR 1 ELE~ PLAh1 M,M 3 LARGE SCALE MECFi STAIR / FLFV PtAN`~ 53.1 FRAME ELEVA710NS Q LINE51, 2 & 3 MM.4 MECHANICAL t}fTAIIS 53.2 53.3 FRAME ELEVATIONS Q LINES 4, 5 & 5 FRAME ELEVATIONS Q LINES 7, 8 & 9 MM.S MECFiANiCAL DETAiI.S & SCHEDULES 53.4 53.5 FRAME ELEVATIONS cQ LINES 10 11 & 12 MISC. FRAME BEAM & SHEAR VfAtl ELEY MFP.1 BASEh1EN1" FIRE PROTECi"ION PLAN , MFP.z BASEMENT FIRE STANDPIPE PIAN 54.1 TYPICAL CONCRETE DETAILS 54.2 COLUMN ELEVATIONS & DETAILS CLECTRIC~AL 54.3 COLUMN ELEVATIONS & DETAILS 54.4 COLUMN ELEVATIONS & DETAILS S OVERAil BASEMENT ELECTRICAL PLAN 55.1 TYPICAL P-T DETAILS & SECTIONS E..3. OVERALL GROUND LEVEL E(.ECI'RICAL PIAN: 55.2 55.3 CONCRETE DETAILS CONCRETE OETAl15 E.3 OVERALL 2nd & 3rd 1.EWEh ELECTRICAL PIAN 55.4 CONCRETE DETAILS E.4 OVERAI L. 3rd & 4th LEVEL ELECTRICAL PIAN E.5 RETAIL & OFFICE ELECTRICAL F100R PLANS 56.1 'TYPICAL STEEL DETALLS E.6 STAIR BSMT & GRND LEVEL LIGHTING; PLANT 56.2 FRAMING DETAILS F,7 Sl"AIR BSM7 & GRND L.FVEI. POWER PIAN 56.3 STAIR FRAMING DETAllS "e,A $TA1R 2r,d & 3rd LEVEL LIGHTING PLr1NS t.9 STAIR Ind & 3rd LEVEL POWER PLANS .3 Ca MAIN SWITCH BRU & SGHEDUC.ES l9J 7 PANELRISER G€AGRAh4 f.72 PANEt.SC:HF.DULfS&t.EGENI) 105 Cc7 ,~ ~`` EXHIBIT C -AGREEMENT TO SELL AND PURCHASE ?v ~~ ~ `~ ~cum~n~ A~21~CN1c - 2003 and ~~C ®cment 565 Standard Form of Agreement Between Owner and Construction JVtanager ~4rhere the Construction Manager rs Also the Constructor AGREEMENT I , . ~~~• i'+ti, l,n ~t ;.,n~ ;n'~re ti,nu or l tti~; 'l nr'i~ :n•~ -Sc~c~r ~ ,,. •,:Ih .,r :+ ~. r ~i ! ADD1T70N5 AND DELETIONS: Trt .2'.thGr ~ 'h'S d':a:.T {,.,r r193 BETWEEN r~',~ i ,~i r~.~. ~~.ied i-fcr~r ai's~ rea ,•.7 ,'c .., h 21:; r6'dl'<'r-9J 'I, nk^ ,.1 GHQ , ~,~ (i;~ ~~t Ii~tzcni.An AIA':13'tCarC `,,^nr Aa Ao::f,:)^s a-.7 ' (711 Ii~;Y 1~Z7J 115@j;pgS fi'~p~n'ha'.'id12~~CDg: i; i ,u~. ~lT ;q:' I ` ~~ ~rrn3 ~ ~ r.a I s r.:.'5~-~r;~- •~ '~,a c,?-vna•,~rs :rte s ~/a .i :, ..nJ th_' ('«n,ir~1. ;:~~a 11an,c:.x~ f•~m t~`° a..;^,:r an:~ ~^::,'n re , _:,~,I ~1,/rir: ,., ~ ao-,.:d A . _"cal I ne m hu~r ~•r, 1T .,,,., (', ,,.u'u~•~~'u. Cite ~. ire.. W , i:`t^r ~tt~', -r;ded .'F~;..>;u~th('hur~h'1t,;7t:~~ t ..~:ay~~'r^tat~o•ta..~:;nrt~ '~ ;3•it U,..I1, X11 Gt.) ~. .J.p.," ~ .-, .C JPJ 1Ci Jr ~d ~'.-. -. ~.. ^1. ~. rl^• 'r~^ 'r . . r _. .. ~,,,.~. _ ...,.. _ - _.,.,_... ,. ~y ..,.t~ar.~;7 .. "i ~,_„_ i5r } ~i,l~~lrnh-tll ,.rnl'I r,~c)' ij ,t'~.lil. ~1T \V ~~~ ~ a;t7 ";C:~~ t1:'~IA C;~ ~. ~ ~ ~ ~i~:.:~i.m ' xher ~p~p,3! l'tC .Ar~htlrCl 1.,. CC^;t:r^ <:rht.ltbZ~d. ,~;ir1~ ::;!rl ~rt;,L';au . .... .. ,.,'I It ~.il .i: .. :.ne.:~, it (~ ' ~ ,.~ ~~~._n. ~1~ n i 6. ~. h~. i~~r .ut.l C.~rm.t.a4t~nn yfaracer ; Lrc~ .a. >r~ far;h hclat.• z A Jnc~,;mrnt At21'"CM.1. 20D3 and AGC Document 565. Copyr ghl :' ^~I a^d ~rJ9 ~, .1 ..r ~ ;1 ~ r ,i .• ~~_ ...'.r .~ .. >cr .... All rights rasorvad. ~.... ., ., ~ r~ ... ,.. .. _ - , - ~ .. > ., r t. , ..~„ .. - ~ - 106 V~" ~$ ~ EXHIBIT D- AGREEMENT TO SELL AND PURCHASE DRAFT FORIVIAT 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 for Yellowstone Bank to finance the purchase of the above referenced cotrunercial 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 of time of closing. This commitz-nent 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 cormnents concerning our commitment for the purchase of the commercial condos, please feel free to contact at 406-587-9900. 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 107