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Home My WebLink About17- Real Estate Conveyance Agreement - The Trust for Public Land - Story Mill Community Park \�•eman 2587870 Page: 1 of 10 08/04/2017 08:54:45 AM Fee: $80.00 Charlotte Mills - Gallatin County MT MISC •. -� I IIIIIII IIIIII III IIIII IIII IIIIIII IIIIII IIII IIII IIIII IIIII IIIII IIIIIII III IIIII IIIII I I IIII f, MT 59771.1230 PLATTED �� REAL ESTATE CONVEYANCE AGREEMENT BETWEEN THE CITY OF BOZEMAN AND THE TRUST FOR PUBLIC LAND This Real Estate Conveyance Agreement ("Agreement") is made and entered into this bt`' day of , 2017, by The Trust for Public Land, a nonprofit California public benefit corporation with mailing address of 1007 East Main Street, Suite 300, Bozeman, Montana, 59715 ("Grantor") and the City of Bozeman, a political subdivision of the State of Montana ("Grantee" or the "City"), with mailing address of 121 North Rouse, P.O. Box 1230, Bozeman, Montana 59771. RECITALS: A. Grantor is the owner of that certain real property located in the City of Bozeman, Gallatin County, Montana described on Exhibit A attached hereto and hereby incorporated by this reference (the "Property"),together with the following: (a) All improvements, buildings and structures, together with all rights, privileges, easements and appurtenances to the Property including, without limitation, all of Grantor's right, title and interest in and to all mineral and water rights, if any (and without warranty), and all easements, rights-of-- way and other appurtenances used or connected with the beneficial use or enjoyment of the Property; and (b) All right, title and interest of Grantor (if any) in and to all land use steps or actions taken or initiated by Grantor including site plans, plats, surveys, inspections, tests, drainage, grading, soil and substratus studies, environmental, wildlife and mineral studies, utility (water, sewer, natural gas, telephone, cable TV, or electricity, as applicable) studies or agreements, marketing and/or development studies, traffic studies, entitlement and zoning information, governmental and private party applications and approvals, proposed plats, re-platting, approved or proposed development plans, proposed or approved amendments to existing covenants, conditions, and restrictions of record, plans specifications and working drawings for any buildings, improvements and structures that are located on and/or are planned to be constructed on the Property, and other plans, studies, data, or materials of any kind, whether in written or computer (or other electronically) based or retrievable form if existing and Grantor's possession or control (including any of the foregoing prepared by consultants or other third parties on behalf of Grantor) that relate to the Property other than documents or information that is privileged or has been provided to Grantor under a binding confidentiality agreement (collectively, the "Property Documents"). If this Agreement is terminated as permitted hereunder or the conveyance of the Story Mill. Real Estate Conveyance Agreement Grantees'Initials Page I of 11 Grantor's Initials A0 Property fails to close because of a failure of any of the Grantee's or Grantor's Conditions Precedent (as set forth in Section 8 below), Grantee shall promptly return to Grantor all copies of the Property Documents Grantor has previously provided to Grantee. B. Grantee wishes to acquire the Property from Grantor and Grantor wishes to convey the Property to Grantee on the terms of this Agreement. C. Grantor and Grantee have entered into that Memorandum of Understanding dated December 19, 2014 providing for a collaborative effort to create Story Mill Community Park (the "Park"). The parties understand and acknowledge that the Property is intended to be incorporated into the Park. AGREEMENTS: 1. Conveyance. Grantor agrees to convey the Property to Grantee without monetary consideration and Grantee agrees to accept the Property from Grantor. 2. Charitable Gift Element of Conveyance. In conveying the Properly to Grantee, Grantor intends that the Property shall remain forever as public open-space and park land as though it were acquired by the Grantee using Grantee's TOP Bond Funds, thereby providing important public recreational and educational opportunities as well as critical wildlife habitat in perpetuity. Grantor further intends that the Property shall be considered part of the Park, and shall be used as a community center as well as office space and meeting area for the Bozeman Parks and Recreation Department and/or other civic and community groups licensed by the City to use the Property. Grantor intends that the fair market value of the Property be a charitable contribution by Grantor to Grantee. Grantor hereby forever releases and waives any claim against Grantee for payment for any amount for the Property. 3. Closing. The conveyance of the Property from Grantor to Grantee shall close on a date mutually agreeable to Grantor and Grantee, but in no event earlier than August 31, 2017 and in no event later than December 31, 2017 (the "Closing") or ("Closing Date"). Such closing will be at Security Title in Bozeman, Montana. Grantor will pay for the cost to release liens, if any, and any other documents necessary to convey clear title to the Grantee. Grantee shall pay the escrow fee and the recording fee for the statutory warranty deed. Grantee shall pay the premium on a standard homeowner's title insurance policy in favor of Grantee. Real Property taxes shall be prorated and paid by Grantor as of the date of closing based upon the latest available tax bill. 4. Preliminary Title Commitment. Within ten (10) days after mutual execution of this Agreement, Grantor shall provide Grantee with a Preliminary Title Commitment showing the condition of title to the Property, together with legible copies of all instruments of record affecting the Property from Security Title in Bozeman, Montana. Story Mill: Real Estate Conveyance Agreement Grantees'Initials Page 2 of 11 Grantor's Initials 5. Deed. At Closing, Grantor shall execute and deliver to Grantee a statutory warranty deed conveying marketable title to the Property to Grantee, free and clear of all liens and encumbrances, subject only to easements, declarations, covenants, conditions, restrictions and other matters of record as are acceptable to Grantee. Grantor shall convey by Bill of Sale and Assignment executed by Grantor, title to the Property Documents and any water rights (the "Bill of Sale"). 6. Conditions Precedent. Grantee's obligation to accept the Property from Grantor and Grantor's obligation to convey the Property to Grantee is expressly contingent on Grantee's satisfaction with each of the following conditions precedent: 6.1 Grantee having conducted on or before August 15, 2017, an inspection of the Property and approved the physical condition of the Property including but not limited to review of soils, environmental condition, septic, wells, zoning, title, and any other due diligence required by Grantee ("Grantee's Due Diligence Period"). During the Due Diligence Period, Grantor will allow Grantee access to the Property upon prior notice and will allow Grantee and/or Grantee's agents to conduct such inspections or examinations as Grantee deems necessary, provided Grantee will hold Grantor harmless from any claims related to Grantee's activity and will leave the Property in the same condition as it was prior to such inspections. Grantee shall not allow any of Grantee's agents to place liens on the Property in connection with such inspections, and shall indemnify and hold Grantor harmless from any liens placed on the Property as a result of Grantee's actions. Grantee may at any time prior to the end of the Due Diligence Period, by written notice delivered to Grantor, elect to either (i) accept title to the Property (subject to any other conditions contained herein), in which event this Agreement shall continue to be in full force and effect, or (ii) terminate this Agreement. Failure to give such notice shall be deemed an election to terminate this Agreement. Upon Grantor's receipt of written notice terminating the Agreement or the failure of Grantee to respond one way or the other prior to the expiration of the Due Diligence Period, this Agreement shall immediately terminate and be no further force or effect. 6.2 Grantee shall have approved the Preliminary Title Commitment. 6.3 The Resolution of acceptance of the Property by Grantee shall have been approved by the Bozeman City Commission. 6.4 The Story Mill Site Plan Application No. 17257 shall have been approved by the City. 6.5 The foregoing conditions are for the sole benefit of Grantee and Grantor respectively. In the event the foregoing conditions are not Story Mill: Real Estate Conveyance Agreement Grantees'Initials Page 3 of 11 Grantor's Initials �' satisfied or waived prior to Closing, then either party may terminate this Agreement. 7. Title Insurance. At Closing, Grantor shall provide Grantee with a standard owner's policy of title insurance for the Property, insuring Grantee against loss or damage sustained by it by reason of the unmarketability of its title, or encumbrances thereon, other than the exceptions contained in such policies which Grantee previously has approved. Grantee shall be responsible for the cost of any standard or extended title insurance or endorsements to the title insurance policy. 8. Taxes and Assessments. Real property taxes, and any county special assessments for the current year shall be prorated as of Closing and such prorations shall be a final proration and not subject to adjustment. 9. Water. To the extent any water rights exist on the Property,they will be transferred to Grantee at Closing and if feasible will be used by Grantee to serve the water needs of the Park. 10. Grantor's Representations. Grantor represents to Grantee, to the best of Grantor's actual knowledge,that: a. There are no pending or threatened claims, actions, suits, litigation, governmental investigations, or judicial or administrative proceedings, arbitrations, grievance proceedings or unfair labor practice claims involving the Property or Grantor's actions with respect thereto, or which might impede the closing of the transaction contemplated under this Agreement, or which would interfere with Grantee's intended use of, and benefit from, the Property. b. No attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings are pending or threatened against Grantor,nor are any of such proceedings contemplated by Grantor. c. At Closing, Grantor will convey fee simple title to the Property, and will have good, marketable, and insurable title to the Property, free and clear of all liens, encumbrances, claims, covenants, conditions, restrictions, easements, rights of way, land use, zoning and other government regulations, options, judgments, or other matters, except as disclosed on the Preliminary Title Commitment and approved by Grantee; d. Grantor has received no notice of any governmental agency or authority having jurisdiction over the Property that the Property is currently in violation of any law, ordinance, or regulation applicable to the Property. e. To the best of Grantor's knowledge and except as may be identified in any environmental site assessment report that Grantor has provided to Grantee, the Property does not contain and has not been used in any manner for the storage of any hazardous or toxic waste, materials, discharge, deposit, dumping, or contamination, whether of soil, groundwater or otherwise and no activity on the Land has produced any such substances. Story Mill: Real Estate Conveyance Agreement Grantees'Initials Page 4 of 11 Grantor's Initials A0 f. Grantor has the legal power, right, and authority to enter into this Agreement and the instruments referenced herein and to consummate the transactions contemplated hereby. The execution of this Agreement and the Closing will not violate any other agreement of Grantor or to which Grantor is bound. Grantor represents that it is the sole owner of the Property. g. Grantor agrees, within ten (10) business days of mutual execution of this Contract, to provide Grantee with complete copies of any and all Property Documents in Grantor's, or their agents',possession, as defined in Recital A, above. h. At Closing, all of the above representations shall continue to be true and correct. Grantor hereby covenants with Grantee that from the date hereof until the Closing, no part of the Property, or any interest therein, will be sold or otherwise transferred or encumbered without Grantee's prior written consent. 11. Grantee's Representations. In addition to any express agreements of Grantee contained herein, the following constitute representations of Grantee to Grantor, to the best of Grantee's knowledge after diligent inquiry: a. Grantee has the legal power, right, and authority to enter into this Agreement and the instruments referenced herein and to consummate the transactions contemplated hereby. b. Grantee will fully inspect and examine the Property. Grantee is relying on its own independent judgment regarding the Property's value, condition and suitability for its intended use as part of the Park. c. Grantee acknowledges the disclosures of Grantor contained in Exhibit B, which are incorporated by this reference. 12. Possession. Grantee shall be entitled to possession of the Property immediately upon Closing, subject to Grantor's right to access the Property to complete the work provided for in the Memorandum of Understanding between the Parties approved by Resolution No. 4572 (MOU) as well as for office and meeting space for Park-related meetings and activities until such time as the Park is completed. Grantor and Grantee shall mutually agree to the office and meeting space to be used by Grantor pursuant to this section. 13. Remedies. Time is of the essence of this Agreement. If all conditions of this Agreement are met, and the Agreement does not close, through no fault of Grantor, prior to the close of business on the Closing Date specified above, Grantor may declare this Agreement to be terminated. If Grantor cannot furnish marketable title at Closing, or otherwise fails to consummate this transaction through no fault of Grantee, Grantee may terminate this Agreement. Without otherwise limiting this paragraph, each party shall retain all rights and remedies at law or in equity under Montana law, including Grantee's right to the remedy of specific performance. 14. Preservation of Property; Risk of Loss. Grantor acknowledges that Grantee is acquiring the Property to protect and preserve in perpetuity the Property's natural, recreational Story Mill: Real Estate Conveyance Agreement Grantees'Initials Page 5 of 11 Grantor's Initials �, and educational values. Grantor agrees that the Property's natural and recreational values shall remain no less than they are as of the date of signing this Agreement until the Closing Date, and that Grantor shall refrain from and shall not actively permit any use of the Property for any purpose or in any manner which would adversely affect Grantee's intended use. In the event that either (a) Grantor shall fail to refrain from or shall actively permit such adverse use of the Property, or (b) loss or damage occurs to the Property at any time prior to Closing, Grantee may, without liability, refuse to close, or, alternatively, Grantee may elect to accept title to the Property. In addition, prior to Closing, Grantor without written consent of Grantee shall not place any new easements or grant additional rights-of-way over the Property which cannot be removed by Grantor prior to Closing. Moreover, while Grantor may pledge the Property as security, any such security interest, deed, mortgage, etc. shall be removed at Grantor's sole cost and expense prior to Closing. Nothing in this Section 14 shall be deemed to prevent Grantor from making its ordinary and usual uses of the Property prior to Closing, including such activities as meetings, educational programs, etc. And nothing in this Section 14 shall be deemed to prevent or limit Grantor from engaging in such activities as well as the land use actions or activities specifically referred to in this Agreement and/or the MOU both prior to and following Closing. 15. Binding Effect. This Agreement is binding upon and shall inure to the benefit of the parties and their respective heirs, legal representatives and assigns. 16. Attorneys Fees. If suit, action, or other proceeding of any nature whatsoever (including any proceeding under the U.S. Bankruptcy Code) is instituted in connection with any controversy arising out of this Agreement or to interpret or enforce any rights hereunder, the prevailing party shall be entitled to recover its attorney fees (including costs of in-house counsel to include the City Attorney), experts' fees and all other fees, costs, and expenses actually incurred and reasonably necessary in connection therewith, as determined by the court at trial or on any appeal or review, in addition to all other amounts provided by law. 17. Notices. All notices or deliveries required under this Agreement shall be hand delivered or given by facsimile transmittal, regular mail, e-mail, or overnight courier directed to the telecopier number, e-mail address or street address of Grantee and Grantor set forth under their signatures. All notices so given shall be considered effective, if hand-delivered, when received; if delivered by facsimile transmittal, upon telephone confirmation of receipt; if delivered by e-mail, upon electronic confirmation of delivery to the addressee; if delivered by courier, one business day after timely deposit with the courier service, charges prepaid; or if mailed,three days after deposit, first class postage prepaid,with the United States Postal Service. Either party may change the address to which future notices shall be sent by notice given in accordance with this Section. 18. Modification. This Agreement may not be modified except by a written agreement executed by all parties. Story Mill: Real Estate Conveyance Agreement Grantees'Initials Page 6 of 11 Grantor's Initials �', 19. Jurisdiction and Venue. This Agreement shall be construed in accordance with Montana law. Jurisdiction for any dispute or claim raised under this Agreement or proceeding brought to interpret the Agreement shall lie solely in the State of Montana, Gallatin County. 20. Brokers or Third Parties. Each party represents to the other that no party has any claim for compensation or expenses as a result of this transaction and each party shall indemnify the other against any claims for commissions or other compensation by any other broker, finder or third party with whom the indemnifying party has dealt. 21. Facsimile. This Agreement, plus any modifications, may be transmitted by facsimile or electronic transmission. All parties agree that their signatures which are copied on the transmitted documents shall be binding as if they were original signatures. Each party agrees to fully execute with original signatures on all original documents following execution of facsimile transmitted. 22. Counterparts. This Agreement may be executed by the parties in counterparts, each of which when executed and delivered shall be an original, but all of which together shall constitute one and the same instrument. 23. Assignment. Either parry may assign this Agreement to a third party only with the advance written consent of the other party, which consent shall not be unreasonably withheld. 24. Survival. Sections 10, 11, 12, 15, 16, and 20 shall survive Closing. 25. License for Grantor's Use of the Property after Closing. Grantor and Grantee shall enter into the License Agreement attached hereto as Exhibit C and incorporated herein by reference prior to Closing and to be effective immediately upon Closing for the purposes of providing permission for Seller to complete improvements to the Property and for other Park design, development and construction purposes as set forth in the MOU. 26. Entire Agreement. This Agreement constitutes a full and final expression by the parties and supersedes all prior oral or written negotiations and agreements regarding the Property. Signatures to Follow Story Mill: Real Estate Conveyance Agreement Grantees'Initials Page 7 of]] Grantor's Initials GRANTEE: The City of Bozeman, a political subdivision of the State of Montana Dated: Time: City Manager Address: 121 N. Rouse, Bozeman MT 59771 Phone: 406-582-2321 Fax: 406-582-2302 BOZ � V') Federal Tax ID # 81-600238 CAP ., �r • kr 7:crJ1 0� * •, •• z�. GRANTOR: Tj1V co• The Trust for Public Land, a " ' ' non-profit California public benefit corporation Dated: ( 7 By *J4 644V G &ej4j Time: 5-64c_ c4 ,vV� lvii'E K Za Address: Phone: sV ,�Jo - boo �_ L 1041��0� :y •c�K [� 'C.� .J.- �crC-\y Cy/C�Y' `,l/1�OF W A�"'�- 4 •• �`` r I y 11 C - I 1S 1 ►� - i7 C _C'') n W t Is.0 J (� S'F ..�' a 4,c` '7 f v v N v A a�r`i ) S A`At-• O-� r+-.C, `u., S ;S�-��► /7 9 J,��C.t(C- IA t�u S�,. r -�„.-4 c,. s OL'A t,Va Z t�aS. +U � c C �tC �t K b�i� �.�v.c� Sc.1 r '1�•.c '7 t.�r�o S es Story Mill: ( ►� S�t 4 vt1C�+ Real Estate Coni,eyance Agreement Grantees'Initials Page 8 of 11 Grantor's Initials EXHIBIT A (Legal Description) Tract 1B of Certificate of Survey No. 2207B, located in the SE'/4 of Section 31, Township 1 South, Range 6 East, and the NEl/4 of Section 6, Township 2 South, Range 6 East, P.M.M., 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. Story Mill: Real Estate Conveyance Agreement Grantees'Initials Page 9 of 11 Grantor's Initials EXHIBIT B DISCLOSURES Radon Disclosure Statement The following disclosure is given pursuant to the Montana Radon Control Act, Montana Code Annotated Section 75-3-606. RADON GAS: RADON IS 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 HOUSE. If any building on the Property has been tested for radon, the Grantor will provide a copy of the test results concurrent with an executed copy of this Agreement. If any building has received radon mitigation treatment, the Grantor will provide the evidence of the mitigation treatment concurrent with an executed copy of this Agreement. The furnishing of test results is not to be construed as a promise, warranty, or representation of any sort by the Grantor or the Grantor's agent that the test results are accurate or that any mitigation or treatment is effective. 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 cases law enforcement offices will make the information concerning registered offenders available to the public. You may contact the Sheriffs office, the Montana Department of Justice, or a County probation officer for further information. Noxious Weeds Grantee acknowledges the following noxious weeds disclosure: The laws of the State of Montana require Grantors of Property to notify Grantees of Property that noxious weeds exist or potentially exist on the Property being offered for sale. The State of Montana and Gallatin County have established certain requirements for the control of noxious weeds. For information concerning noxious weeds and a Property owner's obligations, Grantee may contact either the local County extension agent or the County Weed Control Board. Story Mill: Real Estate Conveyance Agreement Grantees'Initials �� Page 10 of 11 Grantor's Initials