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HomeMy WebLinkAboutSD-24-10 - Supplemental - 0025 Highland Terrace (8)Option Agreement This Option Agreement (the “Agreement”) is by and between MICHAEL J. ANDERSON and KELLY L. LORD (“Anderson and Lord”), of South Burlington Vermont, and ERIC SAMPLE (“Optionee”) and is made and entered into as of the date of execution by the last party to execute this Agreement (the “Effective Date”). Background 1. Optionee owns a parcel of land with improvements thereon located at 25 and 55 Highland Terrace, South Burlington. Optionee’s property is located in the SEQ – Neighborhood Residential District under the City of South Burlington Land Development Regulations (the “LDRs”) and qualifies as a “Receiving Area” for the transfer of development rights (TDRs”) under Section 19.03 of the LDRs. 2. Anderson and Lorde hold one or more TDRs on a parcel of land containing 11.4 acres, more or less, located at 127 Hidden Meadow Lane in South Burlington, Vermont (the TDR land). The TDR land is located in the Southeast Quadrant Natural Resource Protection subdistrict and qualifies as a “Sending Area” for TDRs under Section 19.02 of the LDRs 3. Optionee is seeking to subdivide his parcel of 1.37 acres into two parcels of 1 acre and .37 acres. 4. Anderson and Lord and Optionee enter into this agreement in order to grant Optionee the exclusive option and right to purchase one (1) TDR from Anderson and Lord, pursuant to Article 19 of the LDRs, subject to the terms and conditions of this Agreement. NOW, THEREFORE, In consideration of the foregoing and mutual covenants and agreements herein set forth the parties hereby agree as follows: Section 1. Grant of Option. Anderson and Lord hereby grant to Optionee the exclusive right and option (the “Option”) to acquire one (1) TDR from Anderson and Lord (the “Anderson and Lord TDR”). Under the LDRs, up to 10,000 square feet of additional lot coverage beyond the maximum allowed corresponds with 0.83 acres of land. Section 2. Option Payment. On the effective date of this Agreement, Optionee shall pay an option payment of One Thousand Dollars ($1,000) as consideration for the grant of the option to purchase the Anderson and Lord TDR (the “Option Payment”), to be held in escrow by Eric Sample’s attorney. Except as provided herein, the Option Payment shall be refunded to Optionee, except in the case of default by the Optionee as set forth in Section 15 (a) but shall be applied as credit against the purchase price in the event that the Optionee exercises the Option. Section 3. Term of Option. The Option granted to Optionee to purchase the Anderson and Lord TDR shall be for a term (the “Term”) that shall commence on the effective date of this agreement and shall terminate at 12:01 AM on May 1st 2024 provided however that Optionee may extend the Term up to ninety (90) days by written notice to Anderson and Lord prior to the initial Expiration date if purchaser has applied for but not yet received all permits and approvals for the project. Section 4. Exercise of Option. Optionee may exercise its option for one (1) TDR if at all, at any time during the Term, as it may be extended, by written notice mailed to Anderson and Lord on or before the Expiration Date at the following address, postage prepaid, return receipt or by overnight delivery: Michael Anderson and Kelly Lord 1435 Spear St. South Burlington, Vt 05403 Michael Anderson and Kelly Lord . The date that Optionee mails its written notice to Anderson and Lord is hereinafter defined as the “Exercise Date.” Section 5. Optionee’s Obligations. Optionee shall be solely responsible for preparing and recording a Conservation Easement and Deed of Severance and initiating and pursuing all proceedings before every regulatory authority, including the South Burlington Development Review Board necessary to effectuate Optionee’s acquisition of the Anderson and Lord TDR or any portion thereof under this Agreement and shall pay all costs and expenses associated therewith. Section 6. Purchase and Sale. In the event the Optionee exercises the Option provided herein, the parties shall proceed with the purchase and sale of the Anderson and Lord TDR according to the remaining terms and conditions of this agreement. Section 7 Purchase Price. The purchase price for the Anderson and Lord TDR shall be Fourteen Thousand Dollars ($14,000) (the “Purchase Price”), as it may be adjusted pursuant to Section 11 of this Agreement, payable in cash, certified funds, check drawn on an attorneys IOLTA account or bank wire at the Closing (as defined below) upon transfer of title to Optionee. The Option Payment paid pursuant to Section 2 shall be applied as a credit against the Purchase Price payable at the Closing. Section 8. Closing. The closing and transfer of title (the “Closing”) shall take place at a mutually agreeable location within thirty (30) days of the Exercise Date, or on such earlier date as the parties may mutually agree. Section 9. Title. Optionee shall cause title to the Anderson and Lord TDR to be examined and shall notify Anderson and Lord in writing on or before the Exercise Date of the existence of encumbrances and defects in the title that are not excepted in this agreement and which render Optionee’s use of the Anderson and Lord TDR unusable for the Project. Anderson and Lord shall use good faith reasonable efforts to remove such defects. If, on the date set for closing, Anderson and Lord are then unable to convey the Anderson and Lord TDR in such a condition that it would be usable for the project, Optionee in full satisfaction of Optionee’s obligations hereunder, shall either: (a) Accept such title to the Anderson and Lord TDR as Anderson and Lord can convey without reduction in the Purchase Price: or (b) Terminate this Agreement in which case Anderson and Lord shall refund the Option payment two Optionee and all further rights and liabilities of the parties hereto by reason of this agreement shall terminate. As used herein “unusable for the Project" shall mean that the TDR is encumbered by liens, is legally defective or the City of South Burlington Development Review Board, the City of South Burlington Planning and Zoning Office or the City of South Burlington City Attorney has issued a written determination that the Anderson and Lord TDR may not be used to increase the lot coverage for the project for any reason including without limitation because of the existence of liens or encumbrances of record, including, without limitation, any zoning, subdivision, Act 250 or other land use law violations which may subject the Optionee to an enforcement action were claimed by any permitting authority exercising jurisdiction over the Anderson and Lord TDR or any protective covenants and/or easements which substantially impair the Anderson and Lord TDR for Optionee’s intended purposes. Anderson and Lord covenant and agree with Optionee that during the Term, and if exercised by Optionee, until the closing date, they shall not sell, convey encumber or take any other action that shall render the TDR legally defective. Any breach of this covenant shall be a default under this agreement entitling Optionee to pursue all legal and equitable remedies for damages incurred by Optionee. Section 10. Transfer Documents. Anderson and Lord shall deliver to Optionee, at the closing against payments of the Purchase Price, in a form satisfactory to Optionee and its counsel, as needed, the following: (a) A deed, sufficient to convey good and marketable title to the Anderson and Lord TDR and complying with the requirements of the LDRs. (b) A completed Vermont Property Transfer Tax Return. (c) In the event the sale of the Anderson and Lord TDRs are not exempt from Land Gains Tax, a certificate issued by the Vermont Department of Taxes certifying the amount of the Vermont Land Gains Tax due pursuant to the provisions of 32 V.S.A. 10001 et. seq. or certifying no such tax is due on account of the transaction contemplated by this Agreement. (d) A partial discharge and/or termination statement for any existing mortgage, security interest, lien or encumbrance on the Anderson and Lord TDR or TDR land. (e) Such affidavits, reports and agreements as may be required by the company issuing title insurance to Optionee and to the institution providing financing to Optionee if any, to permit such title insurance company to issue the title insurance policy without standard exceptions for mechanic’s liens or parties-in-possession. (f) A survey depicting the location of the Anderson and Lord TDR in suitable form for recording in the South Burlington Land Records and meeting the requirements of the City of South Burlington for the conveyance of the Anderson and Lord TDR. Such survey shall be prepared at Seller’s cost and expense. Section 11. Adjustments to Purchase Price. All real estate taxes, personal property taxes, and other municipal charges shall be prorated as of the date of the Closing. Apportionments shall be made in accordance with the then prevailing practice in Chittenden County, Vermont, it being expressly understood and agreed however, that the real estate taxes assessed by the City of South Burlington shall be apportioned based on the fiscal year for which such taxes are collected. Should any tax charge or rate be undetermined on the date of the Closing, the last determined tax, charge or rate shall be used for the purposes of apportionment; provided, however, that such apportionment shall be subject to later adjustment between the parties when the actual amounts of any such tax, charge or rate is finally determined, if the cumulative adjustment exceeds five hundred dollars (US $500.00) Section 12. FIRPTA Certificate. Unless Anderson and Lord provide a certificate and affidavit at Closing complying with the provisions of 26 U.S.C 1445 (FIRPTA). Optionee may withhold from the payment of the purchase price and shall pay to the US Internal Revenue Service an amount equal to fifteen percent (15%) of the Purchase Price. Section 13. Vermont Non -Resident Withholding Tax. Unless Anderson and Lord provide a certificate complying with the provisions of 32 V.S.A. 5847, Optionee may withhold from the payment of the Purchase Price and shall pay to the Vermont Department of Taxes an amount equal to two and one-half percent (2.5%) of the purchase price. Section 14. Vermont Property Transfer Tax and Land Gains Tax. Anderson and Lord and Optionee shall execute and deliver such Vermont Property Transfer Tax and Vermont Lands Gains Tax forms as may be required by the State of Vermont. Optionee shall pay the Vermont Property Transfer Tax due on the transfer all of the Anderson and Lord TDR and Anderson and Lord shall pay the Vermont Land Gains Tax, if any. Unless Anderson and Lord provide Optionee with their certificate at Closing complying with the provisions of 32 VSA 10007 or proof that the proposed transaction is exempt from Vermont Land Gains Tax, Optionee may withhold from the Purchase Price and shall pay the Vermont Department of Taxes an amount equal to ten percent (10%) of the Purchase Price. Section 15. Default and Termination. (a) If after the Exercise Date, Optionee shall fail to complete the purchase as provided herein for any reason other than for the reasons set forth in section 9 herein, Anderson and Lord may terminate this Agreement, retain the Option Payment and pursue all legal and equitable remedies provided by law. (b) If after the Exercise Date, Anderson and Lord shall fail to complete said sale as provided herein for any reason, or are otherwise in default, Optionee may receive back the Option Payment and pursue all legal and equitable remedies provided by law, including, without limitation, damages and/or specific performance. (c) In the event that a legal action is instituted rising out of a breach of this Agreement the prevailing party shall be entitled to reasonable attorneys’ fees and costs. Section 16. Successors and Assigns. This agreement shall bind and inure to the benefit of the parties hereto and their respective representatives, successors and assigns. Section 17. Governing law. This agreement shall be governed by and construed in accordance with the laws of the State of Vermont, without giving effect to such jurisdiction’s principles of conflict of laws. Section 18. Notice of Option. Anderson and Lord shall execute, acknowledge and deliver to Optionee a Notice of Option in form acceptable to Optionee which may be recorded by Optionee in the City of South Burlington Land Records. Section 19. Assignment by Optionee. It is expressly understood and agreed that Optionee may assign its rights under this Agreement to any entity which is owned by Optionee or its members upon providing Anderson and Lord with adequate information to enable Anderson and Lord to consent to said assignment, which consent shall not be unreasonably withheld. Section 20. Entire Agreement: Amendment. This Agreement embodies the entire agreement and understanding between the parties related to the subject matter hereof and there are no covenants, promises, agreements, conditions or understandings, oral or written, except as herein set forth. This Agreement may not be amended, waived or discharged except by an instrument in writing executed by the party against whom such an amendment, waiver or discharge is to be enforced. Section 21. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Section 22. Captions: Headings. The captions and section numbers appearing in this Agreement are inserted only as a matter of convenience. They do not define, limit, construe or describe the scope or intent of such sections, nor in any way affect this Agreement or have any substantive effect. Section 23. Incorporation by Reference. All exhibits hereto and the terms contained therein are made part of this Agreement and the contents thereof are hereby incorporated by reference. Section 24. Survival. All the terms, conditions, covenants and representations of this Agreement shall survive the Closing and execution of the Density Reduction Easement and the Transfer of Development Rights and shall be in full effect and enforceable after the Closing. DATED this day of November, 2023. _______________________________ Michael J. Anderson STATE OF VERMONT COUNTY OF CHITTENDEN This instrument was acknowledged before me on ____________________, by Michael J. Anderson. Before me: __________________________________ Notary Public, State of Vermont Print Name: Commission No: Commission expires: DATED this day of October, 2023. _______________________________ Kelly L. Lord STATE OF VERMONT COUNTY OF CHITTENDEN This instrument was acknowledged before me on ____________________, by Kelly L. Lord. Before me: __________________________________ Notary Public, State of Vermont Print Name: Commission No: Commission expires: DATED this day of October, 2023. _______________________________ Eric Sample STATE OF VERMONT COUNTY OF CHITTENDEN This instrument was acknowledged before me on ____________________, by Eric Sample. Before me: __________________________________ Notary Public, State of Vermont Print Name: Commission No: Commission expires: