HomeMy WebLinkAbout14- Bzmn Ponds Buy Sell Fully Executed 4 15 14AGREEMENT TO SELL AND PURCHASE REAL EST ATE
THIS AGREEMENT ("Agreement") is made, effective as of the date of Seller's signature
below ("Effective Date"), by THE CITY OF BOZEMAN, a self-governing local
government operating pursuant to its Charter, PO Box 1230, Bozeman, MT, 59771
("Buyer"), and GALLATIN VALLEY LAND TRUST, INC, a Montana nonprofit
corporation, PO Box 7021 Bozeman, MT 59771 ("Seller").
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 term hereinafter set forth, land located in Bozeman, Gallatin
County, Montana, legally described as (and hereinafter referred to as the "Property"):
Lots 4A and C1 of the Amended Plat of Tract C of Van Horn Subdivision
and Lots 3 and 4 and portions of Pond ROW of Minor Subdivision No.
223, 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 Reference: E-39-C)
TOGETHER with 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 Property 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 Property in and
to all adjoining streets, alleys, private roads, parking areas, curbs, sidewalks,
landscaping, signage, sewers, and public ways (collectively "Appurtenant Rights").
2. PERSONAL PROPERTY: The following items of personal property, free of liens
and without warranty of condition, are included: None.
3. WATER: Description of water rights, if any, to be transferred: None.
4. PURCHASE PRICE AND TERMS:
Buyer shall pay Seller the purchase price of SIX HUNDRED THOUSAND AND 00/100
U.S. Dollars ($600,000.00) payable in cash, payable at Closing.
In addition, Buyer shall pay Seller SEVEN THOUSAND ONE HUNDRED AND 00/100
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U.S. Dollars ($7, 1 00) for transaction related expenses including title and closing
expenses ($4,000), costs of appraisal ($1 ,850), and costs of survey and boundary line
realignment ($1 ,250), payable at Closing.
5. BUYER'S REPRESENTATION OF FUNDS: Buyer represents that it has sufficient
funds for the payment of the purchase price and closing costs to close this sale in
accordance with this Agreement and is not relying upon any contingent source of such
funds unless otherwise expressly set forth herein.
6. APPRAISAL PROVISION: In accordance with City of Bozeman Municipal Code
Section 2.06.860, Seller has provided Buyer with a complete appraisal prepared by
Bridger Appraisals, Inc. and dated March 10, 2014.
7. PROPERTIES INSPECTIONS: The Seller has completed and provided to the Buyer
a Phase I Environmental Site Assessment, which found no environmental issues that
warrant further investigation. The Buyer is aware that other than this Phase I
Environmental Site Assessment, Seller has not conducted an expert inspection or
analysis of the Property or its condition and, except as otherwise expressly provided in
this Agreement, makes no representations to the Buyer as to its condition, does not
assure that the Property will be satisfactory to the Buyer in all respects, or that the
Property and/or improvements comply with current building and zoning codes.
8. SELLER'S REPRESENTATIONS AND WARRANTIES: Seller represents and
warrants to Buyer that as of the Closing Date:
A. Seller is the fee simple owner of all of 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;
B. Seller has the right and authority to execute documents of conveyance for the
Property to Buyer;
C. Seller has not caused or shall not permit any construction liens to arise against
the Property prior to Closing;
D. 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;
E. There is no action, suit, proceeding, or investigation pending, or to Seller's
knowledge threatened, before any agency, court or other governmental or quasi-
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governmental authority that relates to Seller's ownership, maintenance or
operation of the Property;
F. 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);
G. 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;
H. With respect to the environmental condition of the Property, Seller warrants and
represents that:
i. 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;
ii. To Seller's knowledge, the Property does not contain any Hazardous
Substances in violation of any applicable environmental laws;
iii. 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
iv. 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; and
v. All information and disclosures made by Seller and its agents and
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representatives are true and correct to the best of Seller's knowledge and
belief as of date and time of Closing.
Seller agrees to hold Buyer harmless and indemnify Buyer from and against any and all
liability, claims, actions, suits, damages, and costs arising out of the untruth or out of
Seller's breach of any of the foregoing representations and or warranties. These
representations and warranties, and the indemnification covenant herein contained,
shall survive Closing and not be merged into or extinguished by any documents of
conveyance delivered at Closing.
9. CONVEYANCE: The Seller shall convey the Property by a good and sufficient
Warranty Deed stating the usual covenants set out in Montana Code Annotated § 30-
11-110, in fee simple, free of all liens and encumbrances except taxes and
assessments prorated as of the Closing Date and those described in the Property title
insurance commitment as approved by Buyer. 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.
10. TITLE INSURANCE: Seller, at Seller's expense, shall furnish Buyer as soon as
practicable after the Closing Date Title Insurance evidenced by a standard form
American Land Title Association title insurance commitment in an amount equal to the
purchase price, committing to insure merchantable title to the Property in Buyer's name,
free and clear of all liens and encumbrances except: zoning ordinances; building and
use restrictions; reservations in federal patents; beneficial easements, apparent or of
record; Special Improvement Districts; real estate taxes for the year in which closing
occurs; and the standard pre-printed exclusions. Buyer may purchase additional title
coverage for an additional cost. It is recommended that Buyer obtain details from a title
company.
11. MERCHANTABLE TITLE: If the Seller's title is not merchantable and cannot be
made merchantable before the stated Closing Date, THIRTY (30) ADDITIONAL DAYS
SHALL BE ALLOWED FOR THE SELLER TO MAKE SUCH TITLE MERCHANTABLE.
If title is not merchantable after additional specified time, this Agreement is terminated,
unless Buyer elects to waive defects and proceed to Closing. The parties may agree to
negotiate alternative terms or provisions. All mortgages, judgments, and liens shall be
discharged by the Seller and shall be satisfied at or prior to Closing or from Seller's
proceeds at the time of Closing, unless otherwise provided herein. Seller agrees that
no additional encumbrances, restrictions, easements or other adverse title conditions
will attach or be placed against the title to the Property subsequent to the effective date
of the preliminary title commitment approved by Buyer.
12. PRORATION OF TAXES AND ASSESSMENTS: Seller and Buyer agree to
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prorate taxes and assessments including but not limited to Special Improvement District
assessments for the current tax year as of the Closing Date, unless otherwise agreed.
Seller shall pay costs of document preparation (Warranty Deed, etc.). Buyer to pay for
closing agent's fees and cost of recording warranty deed, said costs shall be included in
the $7,100.00 payable to Seller pursuant to Section 4, above. 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. Gas, electricity, water,
sewer, and other utility and service charges shall be prorated as of the Closing Date.
13. CLOSING AND POSSESSION DATES: The date of Closing ("Closing Date") shall
be April 28 2014. The parties may, by mutual agreement, agree to close the transaction
at any time prior to the date specified. The Buyer and Seller will deposit with the dosing
agent all instruments and monies necessary to complete the purchase in accordance
with this Agreement by such date. The closin~ agent ("Closing Agent") for the
transaction shall be Security Title, 600 South 191 Ave, Bozeman, Montana, 59718.
Buyer and Seller will deposit with the Closing Agent all instruments and monies
necessary to complete the purchase in accordance with this Agreement.
14. POSSESSION: Seller shall deliver to Buyer possession of the Property and allow
occupancy on the beginning of the day following the Closing Date.
15. CONDITION OF PROPERTY: Seller agrees that the Property shall be in the same
condition, normal wear and tear excepted, from the date of the execution of this
Agreement up to the time Buyer takes possession of the Property. Seller will remove all
personal property not included in this sale prior to Closing. Any such items of personal
property remaining on the Property after closing shall become the property of the Buyer.
16. 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
Agreement, 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. 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 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;
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E. Grant Buyer access to any records, documents, and agreements concerning the
Property 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.
17. NOXIOUS WEEDS DISCLOSURE: Buyers of property in the state of Montana
should be aware that some properties contain noxious weeds. The laws of the state of
Montana require owners of property within this state to control, and to the extent
possible, eradicate noxious weeds .. For information concerning noxious weeds and
your obligation as an owner of property, contact either your local County extension
agent or Weed Control Board.
18. 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 the 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
Department of Justice in Helena, Montana, and the probation officers assigned to the
area.
19. RADON DISCLOSURE STATEMENT: The following disclosure is given pursuant
to the Montana Radon Control Act, Montana Code Annotated § 75-3-606. 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. If the Property has been tested for Radon, the Seller will provide a copy
of the test results concurrent with an executed copy of this Agreement. If the Property
has received radon mitigation treatment, the Seller will provide the evidence of the
mitigation treatment concurrent with an executed copy of this Agreement.
20. MOLD DISCLOSURE STATEMENT: The following disclosure is given pursuant to
the Montana Mold Disclosure Act, Montana Code Annotated § 70-16-701 et seq.
MOLD: 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
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county extension agent or health department. Certain strains of mold may cause
damage to property and may adversely affect the health of susceptible persons,
including allergic reactions that may include skin, eye, nose, and throat irritation.
Certain strains of mold may cause infections, particularly in individuals with suppressed
immune systems. Some experts contend that certain strains of mold may cause serious
and even life-threatening diseases. However, experts do not agree about the nature
and extent of the health problems caused by mold or about the level of mold exposure
that may cause health problems. The Center of Disease Control and Prevention is
studying the link between mold and serious health conditions. The seller, landlord,
seller's agent, buyer's agent, or property manager cannot and does not represent or
warrant the absence of mold. It is the buyer's or tenant's obligation to determine
whether a mold problem is present. To do so, the buyer or tenant should hire a
qualified inspector and make any contract to purchase, rent, or lease contingent upon
the results of that inspection. A seller, landlord, seller's agent, buyer's agent, or
property manager who provides this mold disclosure statement, provides for the
disclosure of any prior testing and any subsequent mitigation or treatment for mold, and
discloses any knowledge of mold is not liable in any action based on the presence of or
propensity for mold in a building that is subject to any contract to purchase, rent, or
lease.
21. 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 remedies available to it in law or in equity.
22. BUYER'S AND SELLER'S CERTIFICATION: By entering into this Agreement,
each person or persons executing this Agreement, as Buyer or Seller, represents that
he/she is eighteen {18) years of age or older, of sound mind, and legally competent to
own real property in the State of Montana; and, if acting on behalf of a corporation,
partnership, or other non-human entity, that he/she is duly authorized to enter into this
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Agreement on behalf of such entity.
23. 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 attributable 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.
24. CONSENT TO DISCLOSE INFORMATION: Buyer and Seller hereby consent to
the procurement and disclosure by Buyer and Seller, and their attorneys, agents, and
other parties having interests essential to this Agreement, of any and all information
reasonably necessary to consummate the transaction described in this Agreement,
specifically including access to escrows for review of contracts, deeds, trust indentures,
or similar documents concerning this Property or underlying obligations pertaining
thereto.
25. 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 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.
26. NO CONSTRUCTION AGAINST DRAFTING PARTY: This Agreement shall not be
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construed more strictly against one party than against the other, it being recognized
both parties and/or their legal counsel have contributed substantially and materially to
the preparation of this Agreement.
27. TIME IS OF THE ESSENCE: Time of payment and performance is of the essence
in this Agreement and all clauses herein.
28. BINDING EFFECT AND ASSIGNABILITY: The Agreement is binding upon, and
shall inure to the benefit of, the parties hereto and their respective successors and
assigns.
29. 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.
30. 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.
31. ENTIRE AGREEMENT: This Agreement, together with any attached exhibits and
any addenda or amendments signed by the parties, shall constitute the entire
agreement between Seller and Buyer, and supersedes any other written or oral
agreements between Seller and Buyer. This Agreement can be modified only in writing,
signed by the Seller and Buyer.
32. ALTERNATIVE DISPUTE RESOLUTION: 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 arbitration. The cost of such
mediation/arbitration shall be paid equally by the parties.
33. 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.
34. SURVIVAL OF TERMS: All express representations, warranties, indemnities, and
continuing obligations made in or given in this Agreement, will 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.
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35. REAL ESTATE BROKERS: The parties to this Agreement confirm that no real
estate licensees have been involved in this transaction between Buyer and Seller.
36. 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:
CONTACT PERSON FOR THE BUYER:
CONTACT PERSON FOR THE SELLER:
Chris Kukulski, City Manager
City of Bozeman
121 North Rouse Ave.
Bozeman, MT 59715
Penelope Pierce, Executive Director
Gallatin Valley Land Trust
PO Box 7021
Bozeman, MT 59771
37. 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.
38. BUYER'S ACKNOWLEDGMENT: Buyer acknowledges that it has examined the
Property, that Buyer enters into this Agreement in full reliance upon its independent
investigation and judgment, that prior verbal representations by the Seller does not
modify or affect this Agreement, and that by signing this Agreement Buyer
acknowledges having read and understood this entire Agreement.
*****END OF AGREEMENT EXCEPT FOR COMMITMENT AND SIGNATURES*****
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BUYER'S COMMITMENT: Buyer agrees to purchase the Property on the terms and
conditions set forth in the above Agreement.
BUYER HEREBY ACKNOWLEDGES receipt of a copy of this Agreement bearing
Buyer's sig~~e. _ ~)A A A"' By:~Ac~ l-1-1'1-lY
Chris A. Kukulski
Its: City Manager
SELLER'S COMMITMENT: Seller agrees to sell and convey to Buyer the Property on
the terms and conditions set forth in the above Agreement. Seller acknowledges receipt
of a copy of this Agreement bearing Seller's signature(s) and that of the Buyer named
above. Dated this JS!h day of April, 2014, at J: 2.~ a.m., p_!!l.. (Mountain Daylight
Time). By:____,lt(k._W_h_it-:__,~r-~-C-L-_T_.ilt_w)p_· ____ _
Its: President of the Board of Directors
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