HomeMy WebLinkAboutFinally Adopt Ordinance No. 1821, Purchase and Sale Agreement for Story Mansion with Exergy Friends of the Story Mansion
Memorandum to City Commission: Provisional Adoption of Ordinance 1821
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Commission Memorandum
REPORT TO: Honorable Mayor and City Commission.
FROM: Greg Sullivan, City Attorney, and Chris Kukulski, City Manager.
SUBJECT: Final Adoption of Ordinance 1821 – an Ordinance authorizing the City
Manager to sign a purchase and sale agreement transferring ownership of the Story Mansion
property to Exergy Friends of the Story Mansion, authorizing the granting of a pedestrian
easement across Story Park, authorizing the placement of restrictive covenants on the Story Park,
authorizing the signing of reciprocal Rights of First Offer.
MEETING DATE: April 23, 2012.
AGENDA ITEM TYPE: Consent (4/5 vote of the Commission required for final adoption
of Ordinance 1821)
RECOMMENDATION: We recommend the Commission give final approval to Ordinance
1821. Adoption of Ordinance 1821 will also authorize the granting of a pedestrian easement
across Story Park and the entering into of restrictive covenants related to the Story Mansion and
Story Park. Finally, we recommend you authorize the City Manager to enter into a maintenance
agreement with Exergy Friends of the Story Mansion for caretaking of Story Park.
SUGGESTED MOTION: If the item is removed from consent, we suggest the following
motion: Having conducted a public hearing on April 9, 2012, considered written and spoken
public testimony, and based on the findings contained in the August 9, 2012 staff memorandum,
Ordinance 1821 and findings articulated by the Commission, I hereby move to: (i) finally adopt
Ordinance 1821 authorizing the City Manger to sign the Agreement to Sell and Purchase Real
Estate for the Story Mansion (which includes authorizing the granting of a pedestrian easement
across Story Park for access to the Story Mansion, authorizing the signing of reciprocal Rights
of First Offer, and the entering into of restrictive covenants related to the Story Mansion and
Story Park).
BACKGROUND:
The action on final adoption of Ordinance 1821 is the culmination of years of effort on the part
of the City and numerous citizens to protect, restore, and preserve the Story Mansion. It also
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Memorandum to City Commission: Provisional Adoption of Ordinance 1821
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represents a new opportunity for the community to work with the Exergy Friends of the Story
Mansion (EFSM) in the next chapter of the history of the Story Mansion.
If the Commission finally adopts Ordinance 1821, upon the expiration of 30 days after approval
of final adoption will the City Manager be authorized to sign the Agreement. Closing will then
take place prior to July 1, 2012.
For information on the sale of Story Mansion please refer to the documents made available to the
Commission with provisional adoption on April 9, 2012:
http://weblink.bozeman.net/WebLink8/DocView.aspx?id=47568&dbid=0
In addition, for a detailed discussion on the City’s efforts regarding rehabilitation of the Story
Mansion please see the Staff Memorandum from the August 15, 2011 public hearing.
ALTERNATIVES: As determined by the City Commission.
FISCAL EFFECTS: The purchase price for the sale is 391,222.00. In addition to the purchase
price, EFSM will transfer to the City at the time of closing $15,803.79 made to the interior of the
Carriage House roof upon the recommendation and request of EFSM for the purpose of
preserving the historic character of the building’s second floor. Ordinance 1821 directs the
proceeds from the sale and the renovation payment to be placed into the City’s general fund.
Overtime, the City, through a combination of grant and general funds, invested approximately
$2.1 million in building improvements to preserve the building and make use of the basement
and first floor as a community center. Since the City began operating the first floor of the Story
Mansion as a community center approximately $24,000/year has been raised in rental income.
Operating expenses for the Story Mansion have been between $16,000 and $25,000 per year.
Finally, in order to fully preserve and make use of the property, the Story Mansion and Carriage
House are in need of substantial renovations and repairs, estimated, at a minimum, to exceed one
million dollars.
ATTACHMENTS:
• Ordinance 1821 for final adoption.
o Agreement to Sell and Purchase Real Estate between the City and Exergy Friends
of the Story Mansion including all of its Exhibits. (Attachment A to Ord. 1821).
o Declaration of Covenants, Conditions, and Restrictions for Block 3 of the Butte
Addition to the City of Bozeman. (Exhibit F to Attachment A).
o Pedestrian Easement to be signed by the City at closing for the granting of a non-
exclusive pedestrian easement across Story Park. (Exhibit A to Attachment A to
Ord. 1821)
Report compiled on: April 13, 2012
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ORDINANCE 1821
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ORDINANCE NO. 1821
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA, AUTHORIZING THE CITY MANAGER TO SIGN A PURCHASE AND SALE
AGREEMENT FOR THE SALE AND CONVEYANCE OF THE STORY MANSION
PROPERTY LOCATED AT 811 SOUTH WILLSON AVENUE INCLUDING SEVERAL
CONTINGENCIES REGARDING THE SALE, AND AUTHORIZING THE GRANTING AT
CLOSING OF THE SALE A NON-EXCLUSIVE PEDESTRIAN EASEMENT FOR ACCESS
TO THE STORY MANSION ACROSS THE STORY PARK, AND REQUIRING THE
PROCEEDS FROM THE SALE BE DEPOSITED IN THE CITY’S GENERAL FUND, AND
PROVIDING FOR AN EFFECTIVE DATE.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF BOZEMAN, MONTANA:
Section 1
Legislative Findings.
The City Commission hereby makes the following findings in support of adoption
of this Ordinance:
1. The City of Bozeman owns real property known as the Story Mansion located at
811 South Willson Avenue.
2. Section 2.11 of the Bozeman City Charter requires adoption of an ordinance when
the City “convey[s]… or authorize[s] the conveyance… of any lands of the city.”
3. Section 2.06.850 of the Bozeman Municipal Code (BMC) (Ordinance 1658) grants
the City Commission the jurisdiction and power to sell any real property, however
acquired, belonging to the City that is not necessary to the conduct of city business
or the preservation of property.
4. Section 2.06.870.D, BMC authorizes the City to sell or give property containing a
historically significant building to a nonprofit organization that agrees to restore or
preserve the property so long as the contract for the transfer of the property contains
a provision that requires the property to be preserved in its present or restored state
upon any subsequent transfer and also provides for the reversion of the property to
the city for noncompliance with the conditions of transfer.
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ORDINANCE 1821
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5. The Story Mansion is a property of historic significance as documented when the
City purchased the property, through several stages of renovation, and most recently
through the “T.B. Story Mansion and Carriage House Conservation Easement
Agreement for Save America’s Treasures Grant No. 30-04-ML-0046” recorded as
Document No. 2338483, in the records of the Gallatin County, Montana, Clerk and
Recorder.
6. During the spring and early summer of 2011 the City Commission authorized the
City Manager to publish a “Request for Proposals” seeking interested parties to
submit proposals for purchasing the Story Mansion and for restoring and preserving
the Story Mansion and ensuring the long-term use of the first floor of the Story
Mansion as a community center.
7. On July 18, 2011, Exergy Development Group, LLC submitted a response to the
City’s Request for Proposals titled “Proposal to Receive Ownership of the Story
Mansion” (the “Proposal”).
8. On August 15, 2011, the Bozeman City Commission, after having conducted a duly
noticed public hearing and by a vote of four to zero, reviewed the Proposal and
determined the sale of the Story Mansion property located at 811 South Willson
Avenue to the soon-to-be constituted Exergy Friends of the Story Mansion is in the
public interest and also that the public interest will be furthered by specific
conditions of the sale requiring reversion to the City if Exergy Friends of the Story
Mansion does not preserve or restore the property. The findings given by the
Commission at that time are hereby incorporated into this ordinance.
9. The Commission also determined, for the reasons given at the August 15, 2011
meeting which are incorporated into this ordinance, that the ownership of the
property is no longer necessary to the conduct of city of Bozeman business.
10. Exergy Friends of the Story Mansion will, at the time of closing, be a qualified non-
profit organization and is required by the terms of the attached Agreement to Sell
and Purchase Real Estate to maintain such status throughout its ownership.
11. As required by the Bozeman Municipal Code, the terms of the attached Agreement
to Sell and Purchase Real Estate of the Story Mansion property require reversion of
the property to the City if the property is not restored according to the terms of the
Agreement.
12. Should the Bozeman City Commission provisionally adopt this ordinance by no less
than a two-thirds vote of its total membership, notice of provisional adoption of this
ordinance shall be published in compliance with Sect. 7-1-4127, MCA, prior to
final adoption.
Section 2
The Bozeman City Commission hereby authorizes the City Manager to enter into the attached
Agreement to Sell and Purchase Real Estate (Attachment A) and to take all other action
necessary to effectuate the sale of the Story Mansion property to purchaser Exergy Friends of the
Story Mansion. The property is located at 811 South Willson Avenue and is legally described as
Lot 1A-1 of the Second Amended Plat of Block 3 of the Butte Addition to the City of Bozeman,
Gallatin County, Montana, according to the official plat thereof on file and of record in the office
of the Clerk and Recorder of Gallatin County, Montana [Plat C-35H].
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ORDINANCE 1821
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The Commission authorizes, subject to fulfillment of the contingencies as stated in the attached
Agreement and those contingencies listed below, the conveyance of the fee title to the Property
by warranty deed to Exergy Friends of the Story Mansion:
1. The sale prices shall be Three Hundred Ninety One Thousand Two Hundred Twenty Two
US Dollars ($391,222.00).
2. The purchaser shall pay cash to the City at closing.
3. The City Manager shall not be authorized to sign the attached Agreement to Sell and
Purchase Real Estate until 30 days after final adoption of this ordinance; as such, the
Agreement to Sell and Purchase Real Estate shall not be binding on the City of Bozeman
until executed by the City Manger at that time.
4. Prior to closing, an agreement shall be signed by Exergy Friends of the Story Mansion
and the City Manager regarding maintenance of the dedicate parkland surrounding the
Story Mansion property and other related issues.
5. The City Manager may execute reciprocal Rights of First Offer for the Story Mansion
and Story Park substantially conforming to Exhibits G and H to Attachment A.
6. Prior to closing, covenants substantially conforming to Exhibit F to Attachment A and
addressing the use of the first floor of the Story Mansion as a community center and
preservation of the Story Mansion shall be executed by the City and Exergy Friends of
the Story Mansion.
Section 3
At closing of the property, the City Manager is authorized to execute a Pedestrian Easement for
access to the Story Mansion across the Story Park (Exhibit A Attachment A).
Section 4
Proceeds of the sale shall be deposited in the City’s general fund.
Section 5
Repealer.
All provisions of the ordinances of the City of Bozeman in conflict with the provisions of
this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances
of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full
force and effect.
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ORDINANCE 1821
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Section 6
Savings Provision.
This ordinance does not affect the rights and duties that matured, penalties that were
incurred or proceedings that were begun before the effective date of this ordinance. All other
provisions of the Bozeman Municipal Code not amended by this Ordinance shall remain in full
force and effect.
Section7
Severability.
That should any sentence, paragraph, subdivision, clause, phrase or section of this
ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect
the validity of this ordinance as a whole, or any part or provision thereof, other than the part so
decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman
Municipal Code as a whole.
Section 8
Codification Instruction.
This Ordinance shall not be codified but shall be kept by the City Clerk and entered into a
disposition list in numerical order with all other ordinances of the City and shall be organized in
a category entitled “Ordinances for Sale, Transfer, or Conveyance of Real Property.”
Section 9
Effective Date.
This ordinance shall be in full force and effect 30 days after final adoption.
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ORDINANCE 1821
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PROVISIONALLY PASSED by the City Commission of the City of Bozeman,
Montana, on first reading at a regular session held on the 9th day of April, 2012.
____________________________________
SEAN A. BECKER, Mayor
ATTEST:
_______________________________
STACY ULMEN, CMC
City Clerk
APPROVED AS TO FORM:
_________________________________
GREG SULLIVAN
City Attorney
FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the
City of Bozeman, Montana on second reading at a regular session thereof held on the 23rd day of
April, 2012. The effective date of this ordinance is May 23, 2012.
_________________________________
SEAN A. BECKER, Mayor
ATTEST:
_______________________________
STACY ULMEN
City ClerK
APPROVED AS TO FORM:
_________________________________
GREG SULLIVAN
City Attorney
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AGREEMENT TO SELL AND PURCHASE REAL ESTATE (CITY OF BOZEMAN / EXERGY FRIENDS OF THE STORY MANSION) ..................... PAGE 1 OF 16
AGREEMENT TO SELL AND PURCHASE REAL ESTATE
THIS AGREEMENT (“Agreement”) is made, effective as of the date of Seller’s signature below
(“Effective Date”), by THE CITY OF BOZEMAN, City Hall, 121 North Rouse Avenue, Bozeman,
Montana 59715 (“Seller”), and EXERGY FRIENDS OF THE STORY MANSION, a Montana non-profit
corporation, c/o Exergy Integrated Systems, 40 West 14th Street, Suite 4A, Helena, Montana 59601
(“Buyer”).
In consideration of the mutual promises, the money consideration hereinafter described, and other
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer
agree as follows:
1. Property. Seller shall convey to Buyer, and Buyer shall purchase from Seller, for the price and on
the terms hereinafter set forth, land located at 811 South Willson Avenue, Bozeman, Gallatin
County, Montana (“Land”) legally described as follows:
Lot 1A-1 of the Second Amended Plat of Block 3 of the Butte Addition to the City of
Bozeman, Gallatin County, Montana, according to the official plat thereof on file and
of record in the office of the Clerk and Recorder of Gallatin County, Montana.
[Plat C-35H]
The Land shall be conveyed together with:
(a) All attached buildings and structures, including but not limited to the buildings known as the
“Story Mansion” and the “Carriage House,” and all equipment, fixtures, and other
improvements owned by Seller (including leasehold improvements to which Seller has
succeeded or will succeed pursuant to leases of the Land to tenants) and located at or used in
connection with the ownership, operation, and maintenance of the Land, including without
limitation all heating, lighting, air conditioning, ventilating, plumbing, electrical or other
mechanical equipment, appliances, and other equipment used in the operation of the Land
(collectively “Improvements”);
(b) All of Seller’s right, title, and interest in and to all rights of way, tenements, hereditaments,
easements, rights, interests, claims, minerals and mineral rights, water and water rights, utility
capacity, and appurtenances in any way belonging or appertaining to the Land and all of
Seller’s right, title, and interest, insofar as Seller holds such right, title, and interest by virtue
of its ownership of the Land in and to all adjoining streets, alleys, private roads, parking
areas, curbs, sidewalks, landscaping, signage, sewers, and public ways (collectively
“Appurtenant Rights”);
(c) To the extent assignable, all of Seller’s right, title, and interest in and to all contracts,
agreements, guarantees, warranties, and indemnities, written or oral, affecting the ownership,
operation, management, and maintenance of the Land, Improvements, and Appurtenant
Rights, that Buyer, except for agreements and permits for rental of the Property as provided
for in Section 5, elects in writing (at least seven (7) days prior to the Closing Date) to assume
and that are not (with Buyer’s prior written consent and upon Buyer’s election) terminated by
Seller on or before the Closing Date as provided herein (collectively “Contracts”);
(d) To the extent assignable, all of Seller’s right, title, and interest in and to all (i) plans,
drawings, designs, specifications, blueprints, surveys, engineering reports, environmental
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AGREEMENT TO SELL AND PURCHASE REAL ESTATE (CITY OF BOZEMAN / EXERGY FRIENDS OF THE STORY MANSION) ..................... PAGE 2 OF 16
reports, and other technical descriptions or materials relating in any way to the Land,
Improvements, Appurtenant Rights or Contracts, and (ii) licenses, franchises, certificates,
occupancy and use certificates, permits, authorizations, consents, variances, waivers,
approvals and the like from any federal, state, county, municipal or other governmental or
quasi-governmental body, agency, department, board, commission, bureau or other entity or
instrumentality affecting the ownership, operation or maintenance of the Land or the
Improvements (collectively “Licenses”);
(e) A non-exclusive Pedestrian Easement (as defined in Section 4) for ingress and egress from
the right-of-way of Willson Avenue to the entrance of the Story Mansion fronting Willson
Avenue;
(f) All tangible and intangible personal property owned by Seller associated with the above-
described Land and Improvements and used in the operation, maintenance or management
thereof (collectively “Personal Property”) except for the following which shall be removed
from the Property by the Seller prior to the Closing Date: six (6) beige texture circular tables
(5 ft. diameter); two (2) beige texture circular tables (6 ft. diameter); two (2) 30 inch x 8 feet
beige texture rectangular tables; two (2) carts for holding circular tables; and all personal
property located within the Carriage House.
The Land, Improvements, Appurtenant Rights, Contracts, Licenses, Pedestrian Easement, Personal
Property, and other property described above are collectively referred to herein as the “Property.”
The parties agree that this Agreement shall be amended to conform the legal description of the
Land stated above to the legal description stated in the policy of title insurance to be obtained
pursuant to Section 10.
2. Purchase Price.
(a) Purchase Price. The purchase price (“Purchase Price”) for the Property shall be THREE
HUNDRED NINETY ONE THOUSAND TWO HUNDRED TWENTY TWO US DOLLARS
($391,222.00).
(b) Manner of Payment. Buyer shall pay Seller the Purchase Price as follows:
(i) Credit. Buyer shall receive a credit at closing in the amount of $1,000.00, which
amount represents a contribution made by Friends of the Story Mansion to the City of
Bozeman and accepted by the City as a good faith payment.
(ii) Balance. The balance of the Purchase Price, in the amount of $390,222.00 (plus or
minus prorations and adjustments), shall be paid by Buyer to Seller at closing in
certified or other immediately available cash funds.
3. Reimbursement for Carriage House Expenses. The parties acknowledge that the Seller has
expended certain amounts for modifications to the interior of the Carriage House roof. These
modifications were made at the recommendation and request of Friends of the Story Mansio n for
the purpose of preserving the historic character of the building’s second floor. As such, in addition
to (but not as part of) the Purchase Price, Buyer agrees to reimburse the Seller at closing, in the
amount of $15,803.79, for these expenditures.
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AGREEMENT TO SELL AND PURCHASE REAL ESTATE (CITY OF BOZEMAN / EXERGY FRIENDS OF THE STORY MANSION) ..................... PAGE 3 OF 16
4. Easements.
(a) Pedestrian Easement. Seller agrees to convey to Buyer a non-exclusive access easement
(“Pedestrian Easement”) across Lot 1A-2 of the Second Amended Plat of Block 3 of the
Butte Addition to the City of Bozeman, Gallatin County, Montana (“City Lot”) for pedestrian
ingress and egress to and from the Land by the Property owner and its members, tenants,
occupants, and invitees. The easement centerline shall be the centerline of an existing
walkway and shall proceed from the public right-of-way of South Willson Avenue directly to
the boundary of the Land in such a manner as will provide direct access from Willson
Avenue to the front entrance of the Story Mansion. The easement width shall be twelve (12)
feet, measured six (6) feet on each side of the easement centerline. Buyer shall have the right
to construct, reconstruct, and maintain a walkway on the easement. Buyer may also use the
easement area to install those fixtures and utilities necessary to illuminate the walkway,
subject to Buyer first obtaining all necessary governmental permits and approvals. The Land
shall be the dominant tenement and the City Lot shall be the servient tenement of the
Pedestrian Easement. The Pedestrian Easement shall be documented substantially in the form
attached hereto as Exhibit A.
(b) Pipeline Easement and Well Sharing Agreement. The Buyer agrees the Seller may reserve an
easement for itself and its successors in interest for access to and shared use with the Buyer of
a water well located on the Land. If the Seller determines to reserve such an easement, the
easement shall be documented as an exhibit to a Well Sharing Agreement which Agreement
and easement shall be substantially in the form attached hereto as Exhibit B.
5. Existing Rental Agreements for the Property. The Buyer shall honor all agreements and permits
between the Seller and a third party for rental of the Property which are entered into by Seller prior
to the Closing Date as listed on Exhibit C. Buyer shall have the right to collect all agreed upon fees
for any event occurring after the Closing Date. Deposits required by the Seller from each permittee
for events occurring after the Closing Date shall be transferred to Buyer at Closing.
6. Conveyance Documents.
(a) Warranty Deed. Seller agrees that when the purchase price has been paid to Seller in full,
Seller will convey the Land, Improvements, and Appurtenant Rights to Buyer by a good and
sufficient warranty deed stating the usual covenants set out in Montana Code Annotated § 30-
11-110, in fee simple, free and clear of all encumbrances, excepting only:
(i) Reversion to the City of the fee interest in the Property should the Buyer fail to restore
the Property in compliance with Section 17. The Seller’s reversionary interest reversion
shall run with the land and be binding on all Buyer’s successors in interest. The
warranty deed shall provide a mechanism for release and reconveyance to Buyer of
Seller’s reversionary interest upon Buyer’s completion of the restoration obligations set
forth in Section 17;
(ii) Taxes and assessments prorated as of the date of closing;
(iii) A conservation easement and all conditions of said easement as set forth in a document
entitled “T.B. Story Mansion and Carriage House Conservation Easement Agreement
for Save America’s Treasures Grant No. 30-04-ML-0046” and recorded as Document
No. 2338483, in the records of the Gallatin County, Montana, Clerk and Recorder;
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AGREEMENT TO SELL AND PURCHASE REAL ESTATE (CITY OF BOZEMAN / EXERGY FRIENDS OF THE STORY MANSION) ..................... PAGE 4 OF 16
(iv) The Conditions of Approval for a Conditional Use Permit for Property Located at 811
South Willson Avenue, Bozeman, MT, for the establishment of a community center,
recorded as Document No. 2337320 in the records of the Gallatin County, Montana
Clerk and Recorder;
(v) Such other title exceptions as Buyer shall approve in writing pursuant to Section 10.
(b) Bill of Sale. Seller shall convey the Personal Property by good and sufficient bill(s) of sale.
(c) Additional Documentation. Each party from time to time, on or subsequent to the Closing
Date, at the other party’s request and without further consideration, shall execute and deliver
to the other party such other instrument of conveyance, assignment or transfer and take such
other action as the other party may reasonably require in order to effectively convey, transfer
and vest and put Buyer in possession of the Property.
7. Closing and Possession Dates. Subject to the terms and conditions herein, the closing of the
transaction contemplated by this Agreement shall take place after advance written notice to Seller
from Buyer of no less than ten (10) business days, but in no event later than June 30, 2012
(“Closing Date”). Seller shall deliver possession and occupancy to the Buyer on the beginning of
the day following the Closing Date.
8. Closing Agent, Fees. The closing agent (“Closing Agent”) for the transaction shall be American
Land Title Company, 1800 West Koch, P.O. Box 396, Bozeman, Montana 59715. Buyer and Seller
will deposit with the Closing Agent all instruments and monies necessary to complete the purchase
in accordance with this Agreement. The closing fee charged by the Closing Agent shall be divided
equally between Seller and Buyer. Except as otherwise specifically provided herein, Buyer and
Seller shall each pay their own attorney’s fees for document preparation, review, and counsel prior
to closing.
9. Prorations.
(a) Taxes and Assessments. Seller shall pay all taxes and assessments levied on the Property and
all delinquent taxes and assessments, if any, prior to the Closing Date. Buyer shall pay all of
such taxes and assessments levied on the Property after the Closing Date.
(b) Special Improvement Districts. Special improvement districts, including but not limited to all
perpetual special improvement districts and those that have been noticed to the Seller but not
yet spread or currently assessed, will be assumed by Buyer at closing.
(c) Rents. Rents receivable from tenants, permittees, and licensees and earned and attributable to
the period prior to the Closing Date shall be paid to the Seller to the extent that such rents
have been collected prior to the Closing Date. Rents earned and attributable to the period
beginning on the Closing Date and thereafter shall be paid to the Buyer. Upon receipt after
the Closing Date by the Buyer of rents earned by the Property prior to the Closing Date, the
same shall be paid to the Seller; provided, that the Buyer shall have no obligation, except as
provided in Section 5, above, to enforce collection of such rents.
(d) Utility Charges. Gas, electricity, water, sewer, and other utility and service charges shall be
prorated as of the Closing Date.
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AGREEMENT TO SELL AND PURCHASE REAL ESTATE (CITY OF BOZEMAN / EXERGY FRIENDS OF THE STORY MANSION) ..................... PAGE 5 OF 16
10. Title Insurance. Not later than five (5) days after the Effective Date, Seller shall, at Seller’s sole
expense, order for delivery to Buyer a preliminary title report from a title company authorized to do
business in Montana for a standard coverage owner’s title insurance policy in the amount of the
Purchase Price, covering title to the Land, Improvements, and Appurtenant Rights and showing title
in Seller, dated not earlier than the Effective Date, together with legible copies of each of the
documents underlying the title exceptions listed therein. On or before a date that is twenty (20) days
after receipt of the title report, Buyer shall notify Seller in writing of any exceptions to title set forth
in the title report that are unacceptable to Buyer. Within ten (10) days following the delivery of
Buyer’s notice (“Title Clearance Date”), Seller shall identify in writing to Buyer any of those
exceptions that Seller, using Seller’s reasonable efforts and without material cost to Seller, will not
be able to resolve prior to closing. Buyer shall then report in writing to Seller, on or before the later
of ten (10) days after the Title Clearance Date, whether Buyer is willing to accept the title as shown
in the title report subject to those exceptions or whether Buyer has elected to terminate this
Agreement. If Buyer makes no such written report to Seller on or before such date, then Buyer shall
be deemed to have waived its right to terminate this Agreement pursuant to this Section. If Buyer
has elected to terminate this Agreement, then the parties hereto shall have no further obligations
hereunder (except for obligations which are expressly intended to survive the termination of this
Agreement). If, however, the transaction contemplated by this Agreement closes, then Seller shall
deliver to Buyer as soon as practicable after closing the issued title insurance policy containing only
the exceptions shown in the title report as approved by Buyer. Seller shall be obligated to pay only
the portion of the premium of the title policy exclusive of any charge for coverage for survey
matters and exclusive of any charges for special endorsements, extended coverage, or enhanced
coverage requested by Buyer.
11. Sellers Obligation to Provide Documentation for Review. Within ten (10) days after the
Effective Date, Seller shall deliver to Buyer the following documents for Buyer’s review:
(a) Copies of any and all existing rental agreements together with any and all exhibits and
amendments thereto;
(b) Copies of any warranties, maintenance, service, supply, management or other agreements
presently in effect, or which may come into effect, of whatsoever nature affecting the
Property.
(c) Copies of all engineering reports and environmental reports and assessments pertaining to the
Property in Seller’s possession or available to Seller made within the last five (5) years;
(d) Such other relevant documents as Buyer may reasonably request.
12. Inspection Period; Conditions Precedent.
(a) Inspection. Buyer shall have from the Effective Date through May 25, 2012 (the “Approval
Date”) to inspect the Property and complete such appraisals, tests, inspections and
investigations as Buyer may determine to be necessary or desirable in its sole discretion.
The period between the Effective Date and the Approval Date is called the “Inspection
Period”. Without limiting the generality of the first sentence of this Paragraph 11(a), prior
to or during the Inspection Period Buyer may conduct such tests, inspections or
investigations of the Property as it deems reasonably necessary. If, in the sole discretion
and at the sole election of Buyer, any of said tests, inspections or investigations are
unsatisfactory to Buyer, in any manner or for any reason in Buyer’s sole discretion, Buyer
may terminate this Agreement. If Buyer notifies Seller, in writing, on or before the
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AGREEMENT TO SELL AND PURCHASE REAL ESTATE (CITY OF BOZEMAN / EXERGY FRIENDS OF THE STORY MANSION) ..................... PAGE 6 OF 16
Approval Date of Buyer’s election to terminate this Agreement, this Agreement shall
terminate and the parties hereto shall have no further obligations hereunder (except for
obligations which are expressly intended to survive termination of this Agreement). If
Buyer fails to notify Seller, in writing, on or before the Approval Date, of Buyer’s election
to terminate this Agreement, Buyer’s right to terminate this Agreement under this
Paragraph 11(a) shall expire.
(b) Entry. Seller agrees to permit Buyer, and its agents and contractors, to enter onto the Land at
all reasonable times for the purpose of conducting inspections and assessments prior to and
during the Inspection Period. Seller agrees to provide reasonable assistance and cooperation
to Buyer in the conduct of such activities.
(c) Management Agreement. The obligation of Buyer to close the transaction contemplated by
this Agreement is conditioned upon Buyer and Seller entering into an agreement at closing
for the cooperative management and operation of the Land and the City Lot (Lot 1A-2)
(“Management Agreement”). The Management Agreement shall be substantially in the form
set forth in Exhibit D attached hereto.
(d) Financial Disclosure. The obligation of Seller to close the transaction contemplated by this
Agreement is conditioned upon the Bozeman City Manager’s reasonable satisfaction that
Buyer has the financial and organizational capacity to restore the Property pursuant to the
requirements of Section 17 and to preserve the Property after such restoration. Buyer and
Seller acknowledge that satisfaction of this condition precedent may necessitate that certain
of Buyer’s major donors disclose private financial and other proprietary information to the
City Manager. The parties agree to implement reasonable procedures to protect such
information from subsequent disclosure.
(e) Other Conditions Precedent. The obligations of Seller and Buyer to close the transaction
contemplated by this Agreement are subject to the conditions that: (i) all of the
representations and warranties of Seller and Buyer (as the case may be) contained in this
Agreement are true and correct, in all material respects, at the date hereof and as of the
Closing Date, and (ii) all of the obligations and duties of Seller and Buyer (as the case may
be) to be performed hereunder have been timely and duly performed on or before the Closing
Date.
13. Representations and Warranties.
(a) Seller represents and warrants to Buyer, as of the Effective Date and again on the Closing
Date, that:
(i) Seller has fee simple title to the Property, and Seller has no knowledge of any person or
entity with any right of first refusal, right of first offer, option or similar rights to
acquire any interest in the Property or any part thereof.
(ii) Neither the execution and delivery of this Agreement, nor the consummation by Seller
of the transaction contemplated hereby, will result in a breach of any applicable statute
or regulation, or of any administrative or court order or decree, nor conflict with or
result in the breach of any term, provision, covenant or condition of any agreement or
other instrument to which Seller is a party or by which it or the Property may be bound,
or which with the giving of notice or lapse of time or both would constitute an event of
default thereunder.
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AGREEMENT TO SELL AND PURCHASE REAL ESTATE (CITY OF BOZEMAN / EXERGY FRIENDS OF THE STORY MANSION) ..................... PAGE 7 OF 16
(iii) There is no action, suit, proceeding, or investigation pending, or to Seller’s knowledge
threatened, before any agency, court or other governmental or quasi-governmental
authority that relates to Seller’s ownership, maintenance or operation of the Property.
(iv) Seller has received no notice of any violation of any building, fire, insurance, safety,
health, environmental or other applicable laws, ordinances or regulations (whether
related to the Property or the use and occupancy thereof).
(v) No building or other improvement encroaches onto the Property, nor does any building
or improvement that is part of the Property encroach on lands of others or any public or
private road or right-of-way. The Carriage House encroaches into the side yard zoning
setback.
(vi) With respect to the environmental condition of the Property, Seller warrants and
represents that:
(A) Seller has not conducted, transported, generated, stored, treated, used or disposed
of any Hazardous Substances (as defined below) at or from the Property in
violation of any applicable environmental laws. Seller’s representation in this
subparagraph is made subject to the following exception: In 2009, during interior
renovations of the Mansion, asbestos was identified and remediated by Seller in
the floor beneath the second floor bathroom. The Seller did not conduct any
further testing to determine whether any additional asbestos material is present in
this location or the Property and the Seller makes no representations or
warranties regarding the presence of asbestos in or on the Property;
(B) To Seller’s knowledge, the Property does not contain any Hazardous Substances
in violation of any applicable environmental laws;
(C) Seller has not received any notice of, and has no actual knowledge that, any
administrative agency or other governmental authority or any employee or agent
thereof has determined or alleged that there has been (or is investigating whether
there is) a presence at, release or threat of release from, or placement on or in, the
Property of any Hazardous Substances, or any generation, transportation, storage,
treatment or disposal at or from the Property of any Hazardous Substance in
violation of any applicable environmental laws; and
(D) To Seller’s knowledge, no underground storage tanks are located on the Property.
“Hazardous Substances” as used herein means (1) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, polychlorinated biphenyls and radon gas and (2)
any chemicals, materials or substances defined as or included in the definitions of
“hazardous substances,” “hazardous wastes,” “restricted hazardous wastes,” “toxic
substances,” “toxic pollutants,” “bio-hazard,” “biological waste,” “medical waste” or
words of similar import, under any applicable federal, state or local environmental,
safety or health laws, ordinances, rules of common law, regulations or directives;
(b) Buyer represents and warrants to Seller, as of the Effective Date and again on the Closing
Date, that:
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AGREEMENT TO SELL AND PURCHASE REAL ESTATE (CITY OF BOZEMAN / EXERGY FRIENDS OF THE STORY MANSION) ..................... PAGE 8 OF 16
(i) Buyer has all necessary power and authority to enter into this Agreement and to
consummate all the transactions contemplated herein;
(ii) Buyer is a qualified non-profit organization under law and will maintain such status
during its ownership of the Property;
(iii) This Agreement and all documents to be executed by Buyer and delivered to Seller
hereunder (A) are and will be the legal, valid and binding obligations of Buyer,
enforceable in accordance with their terms, (B) do not or will not c ontravene any
provision of Buyer’s organizational documents or any existing laws and regulations
applicable to Buyer and (C) will not conflict with or result in a violation of any
agreement, instrument, order, writ, judgment or decree to which Buyer is a p arty or is
subject.
(c) All of the representations and warranties of Seller and Buyer contained in this Section 13 are
material, none shall merge into the deed herein provided for, and all shall survive the Closing
Date or termination of this Agreement.
14. Operation of Property Pending Closing; Seller’s Covenants. From and after the date of this
Agreement through the Closing Date, Seller shall at Seller’s expense:
(a) Maintain the Property in the condition in which it existed as of the date of this Agr eement,
normal wear and tear excepted, free from construction liens or other claims for liens, not
commit waste of or on the Property;
(b) Keep in existence all fire and extended coverage insurance policies, and all public liability
insurance policies that are in existence as of the date of this Agreement with respect to the
Property;
(c) Except for entering into agreements for rental of the Property subject to the Seller’s existing
procedures of which Buyer specifically agrees to accept pursuant to Secti on 5 not enter into
any transaction with respect to or affecting the Property which would affect or bind Buyer
following the Closing Date;
(d) Not sell, encumber or grant any interest in the Property or the Offered Property (defined in
Paragraph 17(a)), or any part thereof, in any form or manner whatsoever or otherwise
perform or permit any act which would prevent Seller’s full performance of its obligations
hereunder;
(e) Grant Buyer access to any records, documents, and agreements concerning the Propert y
within Seller’s possession or control;
(f) Upon written notice from Buyer on or before closing, give appropriate notices of termination
of Contracts designated by Buyer; and
(g) Provide Buyer with any other relevant information with respect to the Property upon Buyer’s
reasonable request including contact information regarding the fire alarm monitoring
equipment.
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AGREEMENT TO SELL AND PURCHASE REAL ESTATE (CITY OF BOZEMAN / EXERGY FRIENDS OF THE STORY MANSION) ..................... PAGE 9 OF 16
15. Risk of Loss. All loss or damage to the Property by any cause is assumed by Seller through the
Closing Date. If any loss, casualty or other occurrence shall have taken place, whether or not
covered by insurance, which has or could have a material adverse impact on the Property, then
Buyer, at Buyer’s option, shall have no obligation to complete the purchase of the Property on the
Closing Date and shall be entitled to return of Buyer’s earnest money deposit, if any, unless such
loss or damage is fully repaired or restored on or before the Closing Date or, if not fully repaired or
restored, is covered by insurance in an amount satisfactory to Buyer and the proceeds of such
insurance are assigned or delivered to Buyer at closing.
16. Allocation of Responsibility.
(a) Seller agrees to indemnify and hold Buyer, its successors, assigns and agents, harmless from
any loss, damage, expense, liability, or claim, including without limitation, attorney’s fees
and expenses of litigation, to which Buyer may become subject arising, directly or indirectly,
from:
(i) Any falsity, omission or misstatement of the Seller with respect to the representations
and warranties set forth in this Agreement;
(ii) Any claim by any permittee or licensee of the Property in connection with any permit,
or license attributed to periods prior to or on the Closing Date; and
(iii) Any claim by any person arising from or att ributable to any action which has occurred
prior to or on the Closing Date.
(b) Buyer agrees to indemnify and hold Seller, its officers and employees harmless from any
loss, damage, expense, liability, or claim, including without limitation, attorney’s fees and
expenses of litigation, to which Seller may become subject arising, directly or indirectly,
from:
(i) Any falsity, omission or misstatement of the Buyer with respect to the representations
and warranties set forth in this Agreement;
(ii) Any claim by any permittee, or licensee of the Property in connection with any of
Buyer’s actions after the Closing Date; and
(iii) Any claim by any person arising from or attributable to any of Buyer’s action which
has occurred after the Closing Date.
17. Condition for Rehabilitation. The parties acknowledge and agree that Seller is selling the
Property pursuant to its authority as a self-governing charter local government and the Seller’s
authority set forth in Section 2.06.870.D, Bozeman Municipal Code (Bozeman City Ordinance No.
1658, Section 1, Chapter 2.05.030.D (a copy of which is attached hereto as Exhibit E), pertaining to
the sale of city-owned property containing a historically significant building. The provisions set
forth in this Section are made to establish a condition attached to the transfer of the Property
pursuant to this Agreement and to ensure compliance with the requirements of the Propos al and the
Bozeman Municipal Code.
(a) Definitions. Unless the context requires otherwise, the following definitions shall pertain
throughout this Section 17 and in the interpretation thereof:
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AGREEMENT TO SELL AND PURCHASE REAL ESTATE (CITY OF BOZEMAN / EXERGY FRIENDS OF THE STORY MANSION) ................... PAGE 10 OF 16
(ii) “Expenditure Cap” means a total of $1,500,000 expended by Buyer and/or its
successors and assigns for improvements to the Property. All amounts expended by
Buyer and/or its successors and assigns for improvement of the Land, Improvements,
or Appurtenant Rights shall added together in determining whether the Expenditure
Cap has been met. Such amounts include but are not limited to the actual costs of: (A)
preparation of architectural or engineering plans or drawings (whether or not the
physical changes contemplated by such plans or drawings are actually made); (B) all
required or reasonably necessary testing and analysis pertaining to the Work; (C)
demolition and excavation; and (D) materials, labor, and services intended to effect a
physical change in the Land, Improvements, or Appurtenant Rights. The Expenditure
Cap shall also include the fair market value of any donated materials and supplies that
are used in the completion of the Work.
(ii) “Force Majeure” means any prevention, delay or stoppage due to strikes, lockouts,
labor disputes, court orders, acts of God, inability to obtain labor or materials,
unreasonable government restrictions, regulations or controls, hostile government
action, unforeseen adverse economic circumstances that substantially impact Buyer or
any of its major sponsors and contributors, civil commotion, fire or other casualty and
other causes beyond the reasonable control of the Buyer, and it shall excuse Buyer’s
performance for a period equal to the duration of such prevention, delay or stoppage.
(iii) “Target Completion Date” means the date that is the five (5) year anniversary of the
Closing Date.
(iv) “Work” means the work necessary to perform and complete rehabilitation in keeping
with the architectural character of the Story Mansion and Carriage House of any two of
the three following projects: (A) rehabilitation of the Story Mansion’s second floor
(“Second Floor Project”); (B) rehabilitation of the Story Mansion’s third floor (“Third
Floor Project”); and (C) rehabilitation of the Carriage House (“Carriage House
Project”).
(b) Condition Subsequent for Restoration of Property. It shall be a condition of Seller’s transfer
of the Property to Buyer that Buyer shall, on or before the Target Completion Date (as it may
be extended from time to time under Paragraph 17(c)), perform and complete the Work. The
Work shall be performed and completed in a manner sensitive to the historic significance of
the Property, in a good and workmanlike manner, and in accordance with all requirements of
laws, ordinances, rules, regulations, codes, permits, and lawful orders bearing on performance
of the Work. The Work shall be deemed completed and the condition satisfied upon either of
the following occurrences:
(i) Buyer obtains one or more Certificates of Occupancy from the City of Bozeman,
Building Division, evidencing completion and allowing occupancy of two of the
following three projects: Second Floor Project, Third Floor Project, Carriage House
Project. For avoidance of doubt, it is not necessary that the Buyer complete al l three of
the Projects in order to complete the Work and secure Seller’s release of the condition
set forth in this Paragraph 17(b); or
(ii) Buyer and/or its successors and assigns have met the amount of the Expenditure Cap.
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AGREEMENT TO SELL AND PURCHASE REAL ESTATE (CITY OF BOZEMAN / EXERGY FRIENDS OF THE STORY MANSION) ................... PAGE 11 OF 16
Upon satisfaction of the condition set forth in this Paragraph 17(b), Seller shall execute such
documents as are reasonably required to clear the title of Buyer and its successors and assigns
from the encumbrance of the condition and to release Seller’s right of reversion described in
Paragraph 17(f).
(c) Extension of Target Completion Date. If prior to the Target Completion Date Buyer and/or its
successors and assigns have expended at least fifty percent (50%) of the Expenditure Cap, the
Target Completion Date shall be extended for an additional three (3) years. The Target
Completion Date shall also be extended by (i) Force Majeure and (ii) by unreasonable delays
caused by the Seller and/or other governmental bodies and agencies or other persons or
entities having jurisdiction over the issuance of building permits and other approvals and
consents (including but not limited to the consents of easement holders) that are required or
advised for completion of the Work.
(d) Right of Access; Inspection. Seller and its authorized officials, agents, and employees may
enter the Story Mansion and Carriage House at reasonable times to inspect the progress of the
Work. Seller’s right of access is conditioned upon Seller (i) giving Buyer at least seventy-two
(72) hours advance notice of entry, and (ii) causing the least practicable interference to
tenants, renters, and other legal occupants of the Land and Improvements.
(e) Failure to Satisfy Condition Subsequent; Opportunity to Cure. If Buyer fails to satisfy the
condition subsequent set out in Paragraph 17(b) above by the Target Completion Date, as
extended pursuant to Paragraph 17(c) above, Seller shall give Buyer notice of non-
compliance with the requirements of this Section 17. Seller’s notice must assert and detail
with reasonable specificity all instances of non-compliance with the requirements of this
Section 17. If Seller’s notice asserts failure to meet the Expenditure Cap, the notice shall
itemize those expenditures that it contends should be disallowed from Buyer’s calculation of
the Expenditure Cap. Upon its receipt of such notice, Buyer shall have ninety (90) days
within which to cure its non-compliance, provided, however, that if any noticed deficiency
reasonably requires more than ninety (90) days to cure, Buyer shall have such time as is
reasonably necessary to cure the deficiency so long as Buyer is proceeding diligently and in
good faith to effect compliance.
(f) Reversion to Seller. If Buyer fails to satisfy the condition subsequent set out in Paragraph
17(b) above by the Target Completion Date, as extended, and if Buyer, after receipt of
Seller’s notice of non-compliance, fails to cure the deficiencies within the time allotted in
Paragraph 17(e), then the Property shall revert to the Seller. Upon such occurrence, Buyer
shall execute and deliver to Seller such instrument(s) of conveyance, assignment or transfer
and take such other action as Seller may reasonably require in order to effectively convey,
transfer and vest and put Seller in possession of the Property. Reversion of the Property to the
Seller shall be Seller’s sole remedy for failure by Buyer and/or its successors and assigns to
satisfy the condition subsequent set out in Paragraph 17(b). Upon reversion, Buyer shall not
be entitled to reimbursement or recovery from the Seller for the Purchase Price, Buyer’s costs
and expenses related to restoring, renovating or preserving the Property, or any other cost and
expense incident or related to Buyer’s ownership of the Property.
18. Subsequent Transfers; Covenants.
(a) Subsequent Transfers – Preservation of Property; Reversion. Buyer agrees that, should Buyer
subsequently sell or transfer the Property, it will require in the documents governing such sale
or transfer that the subsequent purchaser or transferee preserve the Pro perty in its present or
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AGREEMENT TO SELL AND PURCHASE REAL ESTATE (CITY OF BOZEMAN / EXERGY FRIENDS OF THE STORY MANSION) ................... PAGE 12 OF 16
rehabilitated state. In the event that the rehabilitation requirements set forth in Section 17
(Condition for Rehabilitation) have not been met and the Seller’s reversionary interest has not
been released as provided in Paragraph 17(b), the subsequent purchaser or transferee shall
take the Property subject to the Seller’s reversionary interest and all obligations of the Buyer
as provided in Paragraph 17.
(b) Covenants. Seller and Buyer agree to execute at closing, to be effective immediately
subsequent to closing, covenants pertaining to the use of the Story Mansion’s first floor as a
Community Center, the preservation of the Story Mansion in its rehabilitated condition, and
the use of the grounds surrounding the Story Mansion, including the present Story Park. The
covenants, entitled “Declaration of Covenants, Conditions, and Restrictions for Block 3 of the
Butte Addition to the City of Bozeman,” shall be in the form attached hereto as Exhibit F.
19. Rights of First Offer. At closing Seller and Buyer agree to execute Right of First Offer
Agreements substantially in the form attached hereto as Exhibits G and H. In one agreement Seller
shall grant to Buyer a right of first offer to purchase Lot 1A-2 of the Second Amended Plat C-35H
of Block 3 of the Butte Addition to the City of Bozeman (“Story Park”), and in the other agreement
Buyer grant to Seller a right of first offer to purchase the Property. Buyer may record the Right of
First Offer Agreement pertaining to Story Park at Buyer’s expense. Seller may record the Right of
First Offer Agreement pertaining to the Property at Seller’s expense.
20. Default; Remedies.
(a) If Seller fails to close under the provisions of this Agreement because of Seller’s default, then
Buyer shall have as Buyer’s sole and exclusive remedy the option of either of the following:
(i) Terminating this Agreement by giving written notice to Seller; or
(ii) Enforcing specific performance by Seller of Seller’s obligations under this Agreement.
(b) If Buyer fails to close under the provisions of this Agreement because of Buyer’s default,
Seller shall have as Seller’s sole remedy the option of either of the following:
(i) Terminating this Agreement by giving written notice to Buyer; or
(ii) Enforcing specific performance by Buyer of Buyer’s obligations under this Agreement.
(c) For all other breaches by a party of the express representations, warranties, and continuing
obligations made or given in this Agreement, the other party shall have any and all reme dies
available to it in law or in equity.
21. Radon Disclosure Statement. Pursuant to the requirements of Mont. Code Ann. §75-3-606, Seller
makes the following disclosure:
RADON GAS: RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT, WHEN IT HAS
ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY PRESENT HEALTH RISKS TO
PERSONS WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT EXCEED FEDERAL
GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN MONTANA. ADDITIONAL INFORMATION
REGARDING RADON AND RADON TESTING MAY BE OBTAINED FROM YOUR COUNTY OR STATE
PUBLIC HEALTH UNIT.
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AGREEMENT TO SELL AND PURCHASE REAL ESTATE (CITY OF BOZEMAN / EXERGY FRIENDS OF THE STORY MANSION) ................... PAGE 13 OF 16
By executing this Agreement, Buyer acknowledges receipt of this disclosure.
22. Lead Paint Warning and Disclosure Statement.
(a) Disclosure. Every purchaser of any interest in residential real property on which a residential
dwelling was built prior to 1978 is notified that such property may present exposure to lead
from lead-based paint that may place young children at risk of developing lead poisoning.
Lead poisoning in young children may produce permanent neurological damage, including
learning disabilities, reduced intelligence quotient, behavioral problems, and impaired
memory. Lead poisoning also poses a particular risk to pregnant women. A risk assessment or
inspection for possible lead-based paint hazards is recommended prior to purchase.
(b) Representation. Seller discloses to Buyer the existence of lead-based paint as detailed in the
2003 Architectural Assessment Report prepared by Comma-Q Architects, a copy of which
Buyer has been provided by Seller. Seller represents that this report contains the only
information known to it of lead-based paint.
23. Mold Disclosure.
(a) Description; General Information. There are many types of mold. Inhabitable properties are
not, and cannot be, constructed to exclude mold. Moisture is one of the most significant
factors contributing to mold growth. Information about controlling mold growth may be
available from your county extension agent or health department. Certain strains of mold may
cause damage to property and may adversely affect the health of susceptible persons,
including allergic reactions that may include skin, eye, nose, and throat irritation. Certain
strains of mold may cause infections, particularly in individuals with sup pressed immune
systems. Some experts contend that certain strains of mold may cause serious and even life-
threatening diseases. However, experts do not agree about the nature and extent of the health
problems caused by mold or about the level of mold exposure that may cause health
problems. The Centers for Disease Control and Prevention is studying the link between mold
and serious health conditions. Seller cannot and does not represent or warrant the absence of
mold. It is the Buyer’s obligation to determine whether a mold problem is present. To do so,
the Buyer should hire a qualified inspector and make any contract to purchase contingent
upon the results of that inspection. A seller or seller’s agent who provides this mold
disclosure statement, provides for the disclosure of any prior testing and any subsequent
mitigation or treatment for mold, and discloses any knowledge of mold is not liable in any
action based on the presence of or propensity for mold in a building that is subject to any
contract to purchase.
(b) Disclosure. Seller discloses that the Property has mold present on it. This disclosure is made
in recognition that all inhabitable properties contain mold, as defined by the Montana Mold
Disclosure Act (“any mold, fungus, mildew, or spores”). Seller does not represent that a
significant mold problem either exists or does not exist on the Property as such a
determination may only be made by a qualified inspector. Seller has no knowledge of any
testing for mold conducted on the Property. In addition, Seller discloses a mold assessment
was conducted as part of the 2003 Architectural Assessment Report prepared by Comma-Q
Architects a copy of which Buyer recognizes it has been provided by Seller and Seller further
discloses that the Seller remediated to the extent reasonably feasible the mold condition
identified in said report.
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AGREEMENT TO SELL AND PURCHASE REAL ESTATE (CITY OF BOZEMAN / EXERGY FRIENDS OF THE STORY MANSION) ................... PAGE 14 OF 16
24. Megan’s Law Disclosure. Pursuant to the provisions of Title 46, Chapter 23, Part 5 of the Montana
Code Annotated, certain individuals are required to register their address with local law
enforcement agencies as part of Montana’s Sexual and Violent Offender Registration Act. In some
communities, law enforcement offices will make the information concerning registered offenders
available to the public. If you desire further information please contact the local County Sheriff’s
office, The Montana Department of Justice in Helena, Montana, and the probation officers assigned
to the area.
25. Noxious Weeds Disclosure. Buyers of property in Montana should be aware that some properties
contain noxious weeds. Montana law requires owners of property within the state to control, and to
the extent possible, eradicate noxious weeds. For information concerning noxious weeds and your
obligations as an owner of property, contact a county extension agent or the Weed Control Board.
26. Assignment. Except as otherwise provided herein, Buyer shall not assign Buyer’s rights under this
Agreement, in whole or in part., without the prior written consent of the Seller.
27. Notices. Any notice, demand, request or other communication which either party hereto may be
required or may desire to give under this Agreement shall be in writing and shall be deemed to have
been properly given if (a) hand delivered (effective upon delivery), (b) mailed (effective three (3)
days after mailing) by United States registered or certified mail, postage prepaid, return receipt
requested, (c) sent by a nationally recognized overnight delivery service (effective one (1) day after
delivery to such courier) or (d) sent by facsimile (effective upon confirmation of transmission), in
each case, addressed as follows:
IF TO BUYER:
Exergy Friends of the Story Mansion
c/o Exergy Integrated Systems
40 West 14th Street, Suite 4
Helena, Montana 59601
Fax: (208) 336-9431
IF TO SELLER:
The City of Bozeman
Attn: City Manager
City Hall
121 North Rouse Avenue
Bozeman, Montana 59715
Fax: (406) 582-2273
28. Brokerage Fees. Buyer and Seller represent that they have dealt with no brokers in connection with
the Property or the transaction that is the subject matter of this Agreement.
29. Miscellaneous.
(a) No Construction Against Drafting Party. This Agreement shall not be construed more strictly
against one party than against the other merely by virtue of the fact that the Agreement may
have been prepared primarily by counsel for one of the parties, it being recognized both
parties and/or their counsel have contributed substantially and materially to the preparation of
this Agreement.
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AGREEMENT TO SELL AND PURCHASE REAL ESTATE (CITY OF BOZEMAN / EXERGY FRIENDS OF THE STORY MANSION) ................... PAGE 15 OF 16
(b) Time is of the Essence. Time of payment and performance shall be of the essence of each and
every provision of this Agreement.
(c) Attorney Fees. Should either party incur any costs or expenses, including reasonable attorney
fees to include those of the Bozeman City Attorney, in enforcing any of the provisions of this
Agreement, then the other or unsuccessful party shall reimburse the prevailing party on
demand.
(d) Entire Agreement. This Agreement contains the entire agreement and understanding of the
parties, and supersedes any and all prior negotiations and understandings. This Agreement
shall not be modified, amended or changed in any respect except by a written document
signed by all parties hereto.
(e) Captions. The captions, titles and section headings throughout this Agreement are for
convenience and reference only and shall not be deemed or held to explain, modify, amplify
or aid in the interpretation, construction or meaning of the provisions of this Agreement, nor
to define, limit or describe the scope or intent of a particular section.
(f) Successors and Assigns. The terms, covenants and conditions of this Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
(g) Nonwaiver. No waiver of any condition expressed in this Agreement shall be implied by any
neglect of Buyer or Seller to enforce any remedy on account of the violation of such
condition, whether or not such violation be continued or repeated subsequently, and no
express waiver shall affect any condition other than the one specified in such waiver for the
time and in the manner specifically stated.
(h) Survival of Terms. All express representations, warranties, indemnities, and continuing
obligations made in or given in this Agreement, including but not limited to those stated in
Paragraphs 6(c), 9(c), and 29(c) and Sections 13, 16, 17, and 18will survive the closing of the
purchase and sale transaction contemplated by this Agreement or the expiration or the
termination of this Agreement for any reason, and such express representations, warranties,
and continuing obligations shall not merge into the terms of any deed or other instrument of
conveyance.
(i) Governing Law. This Agreement and any disputes arising hereunder shall be governed
hereafter and construed and enforced in accordance with the laws of the State of Montana,
without reference to principles of choice or conflicts of laws.
(j) Counterparts; Facsimile. This Agreement (and any amendment hereto) may be executed in
any number of counterparts, all of which when taken together will constitute one and the
same instrument. A counterpart signed and delivered by facsimile transmission copy thereof
or via electronic means in portable document format (.pdf) shall be as valid and effectual as
the original of that counterpart.
(k) Non-Discrimination. The parties agree to not discriminate in the fulfillment of this
Agreement on the basis of race, color, religion, creed, sex, age, marital status, national origin,
or actual or perceived sexual orientation, gender identity or disability.
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AGREEMENT TO SELL AND PURCHASE REAL ESTATE (CITY OF BOZEMAN / EXERGY FRIENDS OF THE STORY MANSION) ................... PAGE 16 OF 16
IN WITNESS WHEREOF, the parties have executed this Agreement to Sell and Purchase Real Estate
effective as of the date of the Seller’s signature below.
_______________, 2012
BUYER:
Exergy Friends of the Story Mansion
by: ___________________________________
its: ___________________________________
_______________, 2012
SELLER:
City of Bozeman
by: ___________________________________
its: ___________________________________
Attached Exhibits:
Exhibit A – Pedestrian Easement
Exhibit B – Well Sharing Agreement
Exhibit C – Permits and Rental Agreements Assumed by Buyer
Exhibit D – Park Management Agreement
Exhibit E – Bozeman City Ordinance No. 1658
Exhibit F – Covenants, Conditions, and Restrictions
Exhibit G – Right of First Offer – Lot 1A-1
Exhibit H – Right of First Offer – Lot 1A-2
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