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HomeMy WebLinkAboutProvisional Adoption Ordinance 1885, Sale of North Park property_129 a Commission Memorandum REPORT TO: Honorable Mayor and City Commission. FROM: Brit Fontenot, Director of Economic Development. SUBJECT: Provisional Adoption of Ordinance 1885 — an ordinance ratifying the City Manager's signature on a purchase and sale agreement transferring ownership of the North Park property to Micropolitan Ent., LLC and Powder River Comp., LLC. MEETING DATE: July 7, 2014 AGENDA ITEM TYPE: Action (4/5 vote of the Commission required for adoption of Ordinance 1885). RECOMMENDATION: Staff recommends the Commission hold a public hearing on the ordinance, consider this, and other related staff memoranda, written and spoken public testimony, and provisionally adopt by a two-third majority(i.e. four affirmative votes) Ordinance 1885 ratifying the City Manager's signature, upon expiration of the 30 day effective period, on the attached Agreement to Sell and Purchase Real Estate, the North Park property, with Micropolitan Ent., LLC and Powder River Comp., LLC (the "Agreement"). SUGGESTED MOTION: Having conducted a public hearing, considered written and spoken public testimony, and based on thefindings contained in this and other related staffmemoranda, the content of Ordinance 1885 andfindings articulated by the Commission during discussion, I hereby move to provisionally adopt Ordinance 1885 ratifying the City Manager's signature on the Agreement to Sell and Purchase Real Estate, the North Park property, with Micropolitan Enterprises, LLC and Powder River Company, LLC. L AUTHORITY TO SELL REAL PROPERTY Ordinance 1885 authorizes the sale of the North Park property. (EXHIBITS A, Al & A2). The City Commission has authority over the disposition of property owned by the City pursuant to Chapter 2.06 of the Bozeman Municipal Code (BMC). This chapter was created by Ordinance 1658 (2006) and later amended by Ordinances 1683 (2006) and 1713 (2007). Memorandum for Provisional Adoption of Ordinance 1885 Page 1 of 10 110 II. BACKGROUND: For a complete history of the North Park project please refer to the January 14, 2013 EXHIBITS B & B1) and May 13, 2013 staff memos to the City Commission. In January, 2013, the City Commission, via Resolution 4426, unanimously adopted the North Park Concept Land Use Plan (the Plan). Additionally the North Park project webpage contains a link to the adopted plan and additional North Park materials including the North Park Marketing Brochure, Phase 1 Environmental Site Assessment and the North Park Economic Impact Study and Job Benefit Anal_. In May, 2013, the Commission authorized staff to prepare and publish a Request for Proposals (RFP) for the acquisition of professional realty services and authorized the North Park Realtor Selection Committee composed of EDC members and City staff (the Committee) to select a real estate broker to negotiate the sale of the property should the Commission make the determination that the North Park property is not needed for public use and that the public interest is furthered by the sale of the property. Both the Plan and the direction to engage a realtor were unanimously supported by the Commission. In August, 2013, after conducting a public hearing, the Commission determined the North Park property was no longer necessary for the conduct of City business and that the public interest would be furthered by disposing of the property, (EXHIBITS C & Cl). The Commission directed staff to hire a real estate professional to list and market the property for sale. A Committee was formed to produce an RFP. The Committee reviewed the three proposals submitted and selected CBRE to represent the City in the sale of the North Park property. On September 25, 2013, the City signed the listing agreement with CBRE for a one- year term, with an option to renew the agreement for one additional year, (EXHIBIT D). Since the listing agreement was signed, CBRE has actively marketed the property nationwide. To date, two parties have shown interest in the North Park property but only one has agreed to terms. III. THE NORTH PARK PROPERTY The North Park property was purchased in July, 2003, without the benefit of an appraisal, for $3M dollars. The North Park property consists of approximately 85 acres of unimproved land zoned M-2 (manufacturing and industrial) and within the boundaries of an industrial tax increment finance, or TIF, district. Currently, the Industrial TIF District fund is experiencing a deficit of approximately$180,000. The legal description of the North Park property is: TRACTS 1A, 2A, 3A & 4A OF COS 2153 LOCATED IN THE NW '/4 & NE '/4 OF SECTION 36, TOWNSHIP 1 SOUTH, RANGE 5 EAST, PRINCIPAL MERIDIAN MONTANA, CITY OF BOZEMAN, GALLATIN COUNTY, MOTANA. Memorandum for Provisional Adoption of Ordinance 1885 Page 2 of 10 111 The North Park property is generally located within the Bozeman City limits, between Frontage Road (Highway 10) and Interstate 90 and interchanges at North 7th and North 19th Avenues and is proximate to Redwing Drive, Reeves Road and North 7th Avenue. Click here for a map of the North Park property generally showing the physical relationship between the City, and neighboring State of Montana owned properties. Currently, public infrastructure is limited on the property. Additionally, access to the property is limited to one at-grade railroad crossing to the north and west. There is an absence of a road network, curbs, gutters, sidewalks and functional water and sewer services. Additionally, there are poor intersections for ingress and egress and limited connectivity to the existing street network. IV. NORTH PARK APPRASIALS In January, 2014 the City conducted an appraisal on the North Park property. The appraisal determined an "as is" market value of $850,000, or $10,000 per acre. As part of the appraisal, the City requested an "as proposed" value. The "as proposed" value assumes viable access to the site. The "as proposed" value is estimated at $1,536,300, or $18,000 per acre. EXHIBIT E) The date of valuation of the City's North Park appraisal is February 28, 2014. The City's North Park appraisal addenda are linked here. Additionally, at the request of the Commission, Staff reviewed the content and conclusions of a second appraisal, the Buyer's North Park appraisal. Staff found that the Buyer's appraisal was performed by a licensed and certified real estate appraiser. Staff also found that the Buyer's appraisal made assumptions about access to the property not made in the City's "as is" appraisal. The Buyer's appraised value is $1,280,000, or $14,997 per acre. The date of valuation on the Buyer's appraisal is December 16, 2013. V. RATIONALE FOR THE SALE OF THE NORTH PARK PROPERTY In August of 2013, the Commission determined the North Park property was no longer necessary for the conduct of City business and the public interest findings supported the sale. In doing so, the Commission considered and adopted the following findings: a.The North Park property, if developed as proposed in the Plan, furthers the City's goals of job creation and economic diversification as described in the Commission's 2013 —2014 Priorities; b.The aggregate costs to date, approximately $5.25M, of the North Park property are high including purchase price, costs of preliminary plat and the MMIA settlement, with very little return on this investment. The sale of the property would help recoup some portion of the investment made by the City over the past decade. Additional value, through private sector job creation and industry diversification, could be realized by the sale of the property; C.The costs to the City to fund basic infrastructure to facilitate development is higher than the City is willing to invest to develop the property. According to the Memorandum for Provisional Adoption of Ordinance 1885 Page 3 of 10 112 Plan, Phase I development is estimated at $5.4M. Phase I includes the majority of the City owned portion of the North Park property; d.The Plan, through local research and data collection, establishes the market viability of developing the property. In addition to the Plan, the partnership has generated additional documents referenced in this memorandum. Through these documents, a great deal of value has been created for the North Park that, once the city-owned portion is sold, can be utilized to execute the development of the property; e.There is both local and national interest in the sale or lease of the property for private development. That interest has been generated, primarily, by the Plan; f.Sale of the North Park property supports the City's desire to facilitate the development of the property without the negative perception that as property owner, the City may provide itself exemptions or variances to its own regulatory processes; g.The City does not have the staff resources or expertise to develop the property without significant outside assistance; and h.There are significant bureaucratic implications of creating an additional layer of quasi-governmental administration through the creation of a development authority structure to manage the sale or development of the property. In considering the above, Staff provided the following additional discussion in support of the determination that sale of the property furthers the public interest. Primarily, the objective of the North Park Plan was to raise awareness of the economic development potential, in terms of job creation and economic diversification, existing at the North Park properties. Additionally, an objective of the Plan was to demonstrate how governmental organizations and the private sector can work together to support a vision greater than any one partner organization. Also, Plan objectives include provision of locally supportable, market based economic analysis using local data, codes, standards and regulations, realistic infrastructure cost estimates and timelines through multiple phases and viable use patterns, all to facilitate informed decision making. Finally, given rapidly changing market conditions and increasing development costs, the Plan established a sense of urgency for the sale and development ofthe North Park. Throughout the project, selling all or part of the City-owned portion of the North Park property at anytime, conditionally or unconditionally, remained a viable consideration. CBRE has marketed the property touting the aforementioned benefits as part of the overall strategy. The buyers have reviewed the North Park material and believe the property does have the potential set forth in the Plan vision. Additional rational for the sale of the North Park property include: a.The buyer desires to begin development of portions of the property immediately; b.The property has access limitations; C.The property has infrastructure limitations; and d.The City will apply the proceeds to the Landfill Post-Closure Fund. Memorandum for Provisional Adoption of Ordinance 1885 Page 4 of 10 113 Private ownership of the North Park property will likely result in a more timely and cost effective development resulting in the catalyst for job creation and industry diversification originally envisioned by the Commission. VI. CURRENT PURCHASE AND SALE AGREEMENT: OFFER PRICE, DUE DILLIGENCE AND CONDITIONS OF THE SALE OF THE NORTH PARK PROPERTY Over the past several months, the City Manager and I have been working with Micropolitan Ent., LLC and Powder River Comp., LLC to negotiate a purchase and sale agreement for the North Park Property. The attached agreement is the result of these negotiations. The Commission's action will be to ratify the City Manager's approval of this agreement. The sale price for the property will be $1,500,000. This price constitutes 176% of the as is" appraised value ($853,500) and 98% of the "as proposed" appraised value ($1,536,300) Exhibit Al). Additional conditions for the sale of the North Park property as stated in the agreement include: a.DUE DILIGENCE: BUYER shall have a due diligence period of six (6) months from the Effective Date of this Agreement as defined in Paragraph 6B below, during which time it shall be entitled to inspect the Property, examine all available records and review other relevant matters pertaining to the Property. If BUYER, in its sole discretion, is unsatisfied with the Property or any aspect thereof, it shall give SELLER written notice prior to the expiration of this due diligence period, and this Agreement shall terminate and BUYER shall be entitled to a refund of earnest money. b. BOZEMAN CITY COMMISSION RATIFICATION CONTINGENCY: The parties recognize and agree the sale of the Property is contingent upon ratification by the Bozeman City Commission of the City Manager's approval of this Agreement by duly adopted ordinance of the Bozeman City Commission pursuant to the requirements of Section 2.11 of the Bozeman City Charter and Chpt. 2, Art. 6, Div. 5, BMC. Final ratification of this agreement shall not be effective until thirty (30) days after final adoption of such ordinance ("Effective Date"). Should the Bozeman City Commission fail to ratify the City Manager's approval of this Agreement for whatever reason, this agreement shall be terminated, and SELLER shall have no further obligations to BUYER except return of BUYER'S Earnest Money. If the Effective Date is not established within ninety (90) days of the date of this Agreement then at BUYERS election this Agreement shall terminate and BUYER shall be entitled to a refund of earnest money. Memorandum for Provisional Adoption of Ordinance 1885 Page 5 of 10 114 C.ACQUISITION OF ACCESS AND UTILITY EASEMENTS FROM STATE OF MONTANA: The closing of this Agreement is contingent on SELLER, at no cost to BUYER, obtaining and recording within six (6) months of the Effective Date, public utility and public access easements ("State Easements") over and across the State of Montana lands lying between the Property and the existing terminus ends of Wheat Drive and Flora Lane in locations substantially similar to Exhibit A as provided by BUYER. If SELLER fails to secure the State Easements, BUYER, in its sole discretion, may either (i) waive this contingency, or (ii) give SELLER written notice prior to the expiration of the six (6) month period (or any extension thereto) of SELLER'S failure to meet its obligations, and upon such notice this Agreement shall terminate and BUYER shall be entitled to a refund of earnest money. d. APPROVAL OF MASTER SITE PLAN FROM CITY OF BOZEMAN: The closing of this Agreement is contingent on BUYER obtaining approval to its satisfaction from the City of Bozeman of BUYER'S application of a Master Site Plan for the Property within six (6) months of the Effective Date which application may seek access to the Property through Red Wing Drive over right of way owned by Burlington Northern Sante Fe Railroad and leased to Montana Rail Link thus necessitating BUYER obtaining an access agreement from the railroad(s) for access to the Property. If the Master Site Plan is not obtained within the time period described above or the results and content of the Master Site Plan is not satisfactory to BUYER for any reason, BUYER, in its sole discretion, may either (i) waive this contingency, or (ii) give SELLER written notice prior to the expiration of the six (6) month period (or any extension thereto) of SELLER'S failure to meet its obligations or of its dissatisfaction, and upon such notice this Agreement shall terminate and BUYER shall be entitled to a refund of earnest money. Nothing herein shall be construed to require the SELLER to obtain the access agreement with Montana Rail Link or to bind the City of Bozeman to approve a Master Site Plan or any future development on the Property. Further, nothing herein shall be construed to restrict the City of Bozeman when acting in its regulatory capacity to impose reasonable conditions regarding improvements to or maintenance of Red Wing Drive as part of the Master Site Plan or any other development on the Property. e.TIF DISTRICT: The closing of this Agreement is contingent on BUYER and the City of Bozeman entering into a memorandum of understanding ("MOU") within six (6) months of the Effective Date regarding the North Park Economic Development District (the "TIF District") and the allocation of tax increment financing funds to the BUYER for costs related to public infrastructure, including, but not limited to, those costs associated with the Bozeman Solvent Site Water Main Payback District. If the MOU is not obtained or is not satisfactory to Memorandum for Provisional Adoption of Ordinance 1885 Page 6 of 10 115 BUYER, BUYER, in its sole discretion, may either (i) waive this contingency, or ii) give SELLER written notice prior to the expiration of the six (6) month period or any extension thereto) of SELLER'S failure to meet its obligations or of its dissatisfaction, and upon such notice this Agreement shall terminate, and BUYER shall be entitled to a refund of earnest money. f.CLOSING: Closing of the transaction set forth in this Agreement shall occur on the later of (i) within sixty (60) days of the expiration of the six (6) month contingency periods, or (ii) within sixty (60) days of the expiration of the due diligence period. SELLER and BUYER may mutually agree in writing to extend the Closing. Closing Agent shall be Security Title Company, Bozeman, Montana. The parties agree to share equally in the fee of the Closing Agent of the transaction. The BUYER agrees to pay all recording fees. Lastly, the parties shall each pay the fees and costs of their own attorneys. VII. THE DEVELOPMENT PROPOSAL The buyers, Micropolitan Ent., LLC and Powder River Comp., LLC, have indicated that they intend to develop the property in phases and are prepared to begin seeking entitlements immediately. Initially, a site, or sites, will be prepared for the construction of one or more buildings compatible with the existing zoning (M-2). On a portion of the property, the buyers intend to consolidate business activities currently spread about community onto one site for the purposes of accommodating current and future business growth and increasing efficiencies by consolidating disparate activities. Other phases likely include additional build-out for other compatible M-2 uses. The North Park concept land use plan anticipates M-2 uses on the city-owned portion of the site. The Plan sought to take advantage of the existing adjacency to a main-line railroad track and partnerships with the State, through the DNRC, for improved access to the parcel. Adjacency to rail may represent future opportunities. VIII. ACCESS EASMENTS As required by the Agreement, the City has submitted two (2) applications to the State of Montana's Department of Natural Resources and Conservation for the acquisition of two public access easements across State land. The applications propose purchasing easements for Wheat Drive and Flora Lane (Exhibit Al). As set forth in the Agreement, the City must attain the easements within six (6) months of the effective date of Ordinance 1885. If provisionally adopted on June 9, 2014 and finally adopted on June 23, 2014, the effective date of Ordinance 1885 is July 23, 2014. Memorandum for Provisional Adoption of Ordinance 1885 Page 7 of 10 116 IX. UNRESOLVED ISSUES Other than the City and the buyers addressing the contingencies, there are currently no unresolved issues as it relates to the sale of the North Park property. Water rights are proposed to transfer with the property as are the cell tower and agricultural leases currently in place. X. ALTERNATIVES The listing agreement is in effect until August 29, 2014, with an additional one year option to extend the agreement. An alternative to selling the property to the buyers listed herein is to maintain the listing with CBRE until at least August 29, 2014 and continue to work with the DNRC to secure access through State property via Wheat Drive and Flora Lane. The Wheat Drive access acquisition was attempted several years ago when the transfer station was under consideration and the property was preliminarily platted for that proposed use. When the transfer station discussion ended, further negotiations with the State on securing the access through easements on the DNRC property ceased without executing the easement documents. If the City were to retain ownership of the property, secure the two access easements discussed above and continue to market it, the property value may continue to increase due to an overall strengthening of the commercial real estate market. While this alternative is feasible, Staff suggests that the timing of such work may not be in the best interest of the City for the following reasons: a.Since the initial listing in September of 2013, we have had one (1) signed Purchase and Sale agreement; b.The current offer of $1,500,000, or $18,000 per acre, achieves 98% of the "as proposed" market value using the City's "as proposed" appraisal estimate. While currently trending upward, there is no way to predict how the commercial real estate market may change if a sale is delayed; C.The listing agreement, without extension, terminates in approximately four months; d. Delays in a sale preclude the property from working for the community by adding significantly to the property tax base, creating jobs and diversifying the economy; and e.Given what we know about the property today, limited infrastructure and access, it is unlikely that even once the access issues are resolved, the value of the North Park property would likely not reach that of the original purchase price of 3,000,000. XI. FISCAL EFFECTS Pursuant to the requirements of the Bozeman Municipal Code, the property cannot be sold for less than 90% of appraised value. Upon sale, because the City is using a real estate broker, a commission of 6% will be paid. The City may have minimal additional expenses Memorandum for Provisional Adoption of Ordinance 1885 Page 8 of 10 117 related to the transfer including title insurance, recording fees and expenses related to outside counsel. At this price, the City would receive approximately $1,410,000 upon closing, after realtor commission. The City's North Park Economic Development District, an industrial TIF district, invested approximately$225,000 in development of the preliminary plat in 2006-2008. The plat is currently active and the potential buyers are considering an extension. The Industrial TIF continues to have a small amount of increment each year, but has not fully recovered the money spent to develop the plat. The balance in the Industrial TIF fund is $180,000. Selling this land to a private developer will positively impact the TIF, bringing cash streams from property taxes into the fund to recover the initial investment and to possibly provide financing for the installation of public infrastructure within the district. The City receives revenue from an agricultural lease and cell tower lease on the property, which is deposited into the Solid Waste Fund. In 2012, the City obtained $5,148 from the agricultural lease and $7,260 from the cell tower lease. Should the City sell the property, these revenues will no longer be realized. To date, the total value of the two (2) public access easements has not been firmly established. Cost estimates range from between $50,000 and $100,000 to acquire both Wheat Drive and Flora Lane easements from the State. The value will be established by the State in accordance with their policies and will be communicated to the City during the easement application review process. The North Park property was purchased without an appraisal in 2003 for $3,000,000 with money from the City's Solid Waste Fund. At this time, staff believes the goal is not to recover the initial purchase price; the goal is to turn the property over to a private owner and developer who will, in a timely manner, move forward with plans for development which result in job creation and industry diversification as originally intended by the Commission. Additional benefits include the addition of the North Park property on the City tax rolls, investment in the industrial TIF, and new development in the largest M-2 zoned property left in the Bozeman City limits. These benefits are consistent with the Commission's intent to increase and support manufacturing, and the associated jobs, as a primary sector development initiative. Staff recommends that the proceeds from the sale ofthe North Park property be deposited in the Landfill Post-Closure Fund, to be used to assist with Landfill site remediation and monitoring. XII. EXHIBITS: A Ordinance 1885 for provisional adoption including Attachment Al to Ordinance 1885, the Purchase and Sale Contract Documents and Exhibit A to the Purchase and Sale Contract Documents which include the easement alignments for Wheat Drive and Flora Lane; Memorandum for Provisional Adoption of Ordinance 1885 Page 9 of 10 118 A] Agreement to Sell and Purchase the North Park Property; A2 COS 2153; B August 26, 2013 City Commission Staff Memo; BI August 26, 2013 City Commission Meeting Minutes; C January 14, 2013 City Commission Staff Memo; Cl January 14, 2013 City Commission Meeting Minutes; D CBRE Listing Agreement; and E Hyperlink to the North Park appraisal and addenda. Report prepared on June 12, 2014 Memorandum for Provisional Adoption of Ordinance 1885 Page 10 of 10 119 ro ORDINANCE NO. 1885 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, RATIFYING THE CITY MANAGER'S SIGNATURE ON A PURCHASE AND SALE AGREEMENT FOR THE SALE AND CONVEYANCE OF THE NORTH PARK PROPERTY DESCRIBED AS TRACTS 1-A, 2-A9 3-A AND 4-A OF CERTIFICATE OF SURVEY 2153 CITY OF BOZEMAN, GALLATIN COUNTY, MONTANA INCLUDING CONTINGENCIES REGARDING THE SALE AND REQUIRING THE PROCEEDS FROM THE SALE BE DEPOSITED IN THE CITY'S LANDFILL POST-CLOSURE 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 ofthis Ordinance: 1. The City of Bozeman owns real property known as the North Park Property, formerly known as the Mandeville Farm identified as Tracts 1-A, 2-A, 3-A and 4-A of Certificate of Survey 2153 located in the NW 1/4 and NE 1/4 of Section 36, Township 1 South Range 5 East, Principle Meridian Montana, City of Bozeman, Gallatin County, Montana. 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 2.06.890.B, BMC, subject to section 2.06.870.1), authorizes the sale of City property for not less than 90 percent of the appraised value. 5. Section 2.06.900, BMC provides that "[N]o sale of real property shall be made of any property unless it has been appraised within one year prior to the date of the sale. 6. On August 26, 2013, the Bozeman City Commission conducted a public hearing wherein the Commission determined by a vote of 4 — 0, adopted the findings Page 1 of4 120 Ordinance 1885, Purchase and Sale Agreement,North Park Property included in the August 26, 2013 staff memorandum and concluded the City-owned portion of the North Park property, described in Section II of the staff memo, was no longer needed for public use and the public interest will be furthered by the sale of the property as provided for in §§ 2.06.880 through 2.06.910 of the Bozeman Municipal Code and directed the City Manager to complete all steps necessary to negotiate a sale and transfer of the property and return to the Commission with an ordinance authorizing the City Manager to execute a Purchase and Sale Agreement for same. 7. 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 ratifies the City Manager's signature on the attached Agreement to Sell and Purchase Real Estate (Attachment Al) and to take all other action necessary to effectuate the sale of the North Park property to purchaser Micropolitan Ent., LLC and Powder River Comp. LLC and/or their assigns. The property is legally described as Tracts 1- A, 2-A, 3-A and 4-A of Certificate of Survey 2153 located in the NW I/4 and NE '/4 of Section 36, Township 1 South Range 5 East, Principle Meridian Montana, City of Bozeman, Gallatin County, Montana, according to the official Certificate of Survey thereof on file and of record in the office of the Clerk and Recorder of Gallatin County, Montana. 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 Micropolitan Ent., LLC and Powder River Comp. LLC and/or their assigns: 1. The sale price shall be One Million Five Hundred Thousand Dollars($1,500,000.00). 2. The purchaser shall pay cash to the City at closing. 3. The Commission's ratification ofthe City Manager's signature shall not be effective 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 ofBozeman until that time. Section 3 Proceeds of the sale shall be deposited in the City's Landfill Post-Closure Fund. Section 4 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. Page 2 of4 121 Ordinance 1885, Purchase and Sale Agreement,North Park Property Section 5 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. Section 6 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 7 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 8 Effective Date. This ordinance shall be in full force and effect 30 days after final adoption. Page 3 of4 122 Ordinance 1885, Purchase and Sale Agreement,North Park Property PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the 9th day of June, 2014. JEFFREY K. KRAUSS Mayor ATTEST: STACY ULMEN, CMC City Clerk 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 day of 2014. The effective date of this ordinance is 2014. JEFFREY K. KRAUSS Mayor ATTEST: STACY ULMEN, CMC City Clerk APPROVED AS TO FORM: GREG SULLIVAN City Attorney Page 4 of4 123 AGREEMENT TO SELL AND PURCHASE THIS AGREEMENT is made and entered into thisdof June, 2014, by and between City of Bozeman, hereinafter referred to as SELLER, and Micropolitan Enterprises, LLC and Powder River Company, LLC and (or assigns), hereinafter collectively referred to as BUYER. WITNESSETH: WHEREAS, SELLER is the legal owner of the following described real property situated in Gallatin County, State of Montana, more particularly described as follows, to wit: Tracts 1-A, 2-A, 3-A, 4-A of Certificate of Survey 2153, situated in the NW1/4 of Section 36, Township 1 South, Range 5 East, PMM, Gallatin County, City of Bozeman, Montana. WHEREAS, BUYER desires to purchase the above-described real property (the Property") under the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the sure of Ten Thousand and No/100 Dollars 10,000.00) earnest money, and other good and valuable consideration the parties agree as follows: 1.AGREEMENT SUPERSEDES EXISTING AGREEMENT: BUYER and SELLER agree this document shall supersede the existing Buy-Sell Agreement executed by BUYER on March 4, 2014 and by SELLER on February 28, 2014 and said agreement is hereby terminated and shall no longer have any force and effect. 2.TERMS. SELLER shall sell and BUYER shall purchase the Property for the sum of One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00) to be paid in certified or other immediately available cash funds (plus or minus prorations and adjustments as provided herein) at Closing. 3.GOOD FAITH DEPOSIT: Upon SELLER'S acceptance of this offer, BUYER will cause the assignment of an existing earnest money deposit currently held by Security Title of Bozeman in the sum of Ten Thousand and No/100 Dollars ($10,000.00) in an interest-bearing Trust Account which was deposited pursuant to the agreement terminated in Section 1 above, to be held and applied as the earnest money pursuant to this Agreement. sof JAgreementtoSellandPurchase......................................................................................................1 124 4.CONVEYANCE DOCUMENTS: The conveyance documents shall consist of a Warranty Deed from SELLER to Buyer and a good and sufficient assignment of the Seller's interest as a landlord in leases affecting the Property. 5.TITLE INSURANCE: SELLER shall, at its expense, furnish BUYER a title policy from a title company of Seller's choice in a sum equal to the purchase price insuring title to the Property to be vested in BUYER free and clear of title defects except as agreed herein. BUYER shall have ten(10) days after receipt of a commitment for title insurance in which to object to the same, which objections must be in writing and directed to the SELLER. If BUYER makes no such written report to SELLER within the 10-day time period, then BUYER shall be deemed to have waived its right to terminate this Agreement pursuant to this section. Any title defects the BUYER objects to in writing within the 10-day time period shall be corrected by the SELLER within fifteen (15) days. Failure to cure the same by the SELLER will result in this Agreement being canceled at the discretion of the BUYER. 6.CONTINGENCIES: A) DUE DILIGENCE: BUYER shall have a due diligence period of six (6) months from the Effective Date of this Agreement as defined in Paragraph 6B below, during which time it shall be entitled to inspect the Property, examine all available records and review other relevant matters pertaining to the Property. If BUYER, in its sole discretion, is unsatisfied with the Property or any aspect thereof, it shall give SELLER written notice prior to the expiration of this due diligence period, and this Agreement shall terminate and BUYER shall be entitled to a refund of earnest money. B) BOZEMAN CITY COMMISSION RATIFICATION CONTINGENCY: The parties recognize and agree the sale of the Property is contingent upon ratification by the Bozeman City Commission of the City Manager's approval of this Agreement by duly adopted ordinance of the Bozeman City Commission pursuant to the requirements of Section 2.11 of the Bozeman City Charter and Chpt. 2, Art, 6, Div. 5, BMC. Final ratification of this agreement shall not be effective until thirty(30) days after final adoption of such ordinance("Effective Date"). Should the Bozeman City Commission fail to ratify the City Manager's approval of this Agreement for whatever reason, this agreement shall be terminated, and SELLER shall have no further obligations to BUYER except return of BUYER'S Earnest Money. If the Effective Date is not established within ninety (90) days of the date of this Agreement then at BUYERS election this Agreement shall terminate and BUYER shall be entitled to a refund of earnest money. C) ACQUISITION OF ACCESS AND UTILITY EASEMENTS FROM STATE OF MONTANA: The closing of this Agreement is contingent on SELLER, at no cost L Agreement to Sell and Purchase..................................................... 2. 125 to BUYER, obtaining and recording within six (6) months of the Effective Date, public utility and public access easements ("State Easements")over and across the State of Montana lands lying between the Property and the existing terminus ends of Wheat Drive and Flora Lane in locations substantially similar to Exhibit A as provided by BUYER. If SELLER fails to secure the State Easements, BUYER, in its sole discretion,may either(i) waive this contingency, or(ii) give SELLER written notice prior to the expiration ofthe six (6) month period (or any extension thereto) of SELLER'S failure to meet its obligations, and upon such notice this Agreement shall terminate and BUYER shall be entitled to a refund of earnest money. D) APPROVAL OF MASTER SITE PLAN FROM CITY OF BOZEMAN. The closing of this Agreement is contingent on BUYER obtaining approval to its satisfaction from the City of Bozeman of BUYER'S application of a Master Site Plan for the Property within six (6)months of the Effective Date which application may seek access to the Property through Red Wing Drive over right ofwayownedbyBurlingtonNorthernSanteFeRailroadandleasedtoMontanaRail Link thus necessitating BUYER obtaining an access agreement from the railroad(s) for access to the Property. If the Master Site Plan is not obtained within the time period described above or the results and content of the Master Site Plan is not satisfactory to BUYER for any reason, BUYER, in its sole discretion, may either(i)waive this contingency, or(ii) give SELLER written notice prior to the expiration of the six (6) month period (or any extension thereto) of SELLER'S failure to meet its obligations or of its dissatisfaction, and upon such notice this Agreement shall terminate and BUYER shall be entitled to a refund of earnest money. Nothing herein shall be construed to require the SELLER to obtain the access agreement with Montana Rail Link or to bind the City of Bozeman to approve a Master Site Plan or any future development on the Property. Further,nothing herein shall be construed to restrict the City of Bozeman when acting in its regulatory capacity to impose reasonable conditions regarding improvements to or maintenance of Red Wing Drive as part of the Master Site Plan or any other development on the Property. E) TIF District: The closing of this Agreement is contingent on BUYER and the City ofBozeman entering into a memorandum of understanding ("MOU") within six(6)months of the Effective Date regarding the North Park Economic Development District (the"TIF District") and the allocation oftax increment financing funds to the BUYER for costs related to public infrastructure, including, but not limited to, those costs associated with the Bozeman Solvent Site Water Main Payback District. If the MOU is not obtained or is not satisfactory to Agreement to Sell and Purchase...................................................................................... . . L"" 126 to BUYER,obtaining and recording within six(6)months of the Effective Date, public utility and public access easements("State Easements")over and across the State of Montana lands lying between the Property and the existing terminus ends of Wheat Drive and Flora Lane in locations substantially similar to Exhibit A as provided by BUYER. If SELLER fails to secure the State Easements,BUYER, in its sole discretion,may either(i)waive this contingency, or(ii)give SELLER written notice prior to the expiration ofthe six (6)month period(or any extension thereto)of SELLER'S failure to meet its obligations,and upon such notice this Agreement shall terminate and BUYER shall be entitled to a refund of earnest money. D) APPROVAL OF-MASTER-SITE PLAN FROM CITY OF BOZEMAN: The closing of this Agreement is contingent on BUYER obtaining approval to its satisfaction from the City of Bozeman of BUYER'S application of a Master Site Plan for the Property within six(6)months ofthe Effective Date which application may seek access to the Property through Red Wing Drive over right of way owned by Burlington Northern Sante Fe Railroad and leased to Montana Rail Link thus necessitating BUYER obtaiaLnz an access a Bement from the railroad(s)for access to the Proms. If the Master Site Plan is not obtained within the time period described above or the results and content of the Master Site Plan is not satisfactory to BUYER for any reason,BUYER,in its sole discretion,may either(i)waive this contingency, or(ii)give SELLER written notice prior to the expiration of the six(6)month period(or any extension thereto)of SELLER'S failure to meet its obligations or of its dissatisfaction, and upon such notice this Agreement shall terminate and BUYER shall be entitled to a refund of earnest money. Nothing herein shall be construed to require the SELLER to obtain the access agreement with Montana Rail Link or to bind the City ofBozeman to approve a Master Site Plan or any future development on the Property. Further,nothing herein shall be construed to restrict the City of Bozeman when acting in its regulatory capacity to impose reasonable conditions regarding improvements to or maintenance ofRed Wing Drive as part of the Master Site Plan or any other development on the Property. E) TIF District: The closing of this Agreement is contingent on BUYER and the City of Bozeman entering into a memorandum ofunderstanding(`NIOU")within six (6)months of the Effective Date regarding the North Park Economic Development District(the"TIF District")and the allocation oftax increment financing funds to the BUYER for costs related to public infrastructure,including, but not limited to,those costs associated with the Bozeman Solvent Site Water Main Payback District. Ifthe MOU is not obtained or is not satisfactory to Agreement to Sell and Purchase......................................................................................................3 127 BUYER, BUYER, in its sole discretion, may either(i) waive this contingency, or ii) give SELLER written notice prior to the expiration of the six (6) month period or any extension thereto) of SELLER'S failure to meet its obligations or of its dissatisfaction, and upon such notice this Agreement shall terminate, and BUYER shall be entitled to a refund of earnest money. 7.SELLER'S COVENANTS, WARRANTIES AND REPRESENTATIONS: A) Priority of Agreement: During the period from the execution hereof until Closing, any agreement of SELLER for the sale, use or occupancy of the property to be conveyed to BUYER hereunder shall be subject to this Agreement and all of the rights of BUYER as specified herein. B) Title to Property: SELLER will, at Closing, have fee simple, insurable title to the Property free and clear of all mortgages, liens, pledges, encroachments, encumbrances, charges, agreements, claims, restrictions, and rights of parties in possession, subject to the following: 1.All reservations and exceptions of record and in patents from the United States or the State of Montana or in Acts authorizing the issuance thereof; 2.Covenants, restrictions, reservations, limitations, conditions, easements, rights of way, notations contained in or on any recorded plat, uses, waivers, agreements, bylaws, and other provisions of record. 3.Taxes and assessments for the current year and subsequent years; 4.All prior conveyances, leases or transfers of any interest in minerals, including, oil, gas, and other hydrocarbons, including access to and from to extract the same, whether or not shown in the public records; 5.Building, use, zoning, sanitary, safety, and environmental rules, regulations, and restrictions; 6.Water rights, claims of title to water, and ditch rights apparent or of record; 7.A Site lease with Option Agreement dated effective May 15, 2000 between John M. Mandeville and Donna R. Mandeville, as landlord, and WWC Holding Co., Inc., as tenant, and any amendments thereto; Agreement to Sell and Purchase 4 Q - 128 8.The current agricultural Iease affecting the Property. C) No Condemnation Pending or Threatened. There are no pending or threatened condemnation, eminent domain or similar proceedings affecting the Property or any portion thereof, nor does SELLER have any knowledge that any such action is presently contemplated. D) Rights Transferred. SELLER will, at Closing, transfer the Property together with all of SELLER'S interest in mineral, timber and water rights free and clear of all mortgages, liens, pledges, encumbrances, charges, agreements, claims, and restrictions to the BUYER. E) No Special Assessments. No outstanding special assessments or special taxes are due on the Property, and SELLER has no knowledge of any pending assessments affecting the Property except those of record. BUYER acknowledges the existence of Bozeman Solvent Site Water Main Payback District established by Resolution 3519 of the Bozeman City Commission for certain water infrastructure related to the Bozeman Solvent Site and BUYER further acknowledges that any assessments or charges related to said payback district will not be paid off by Seller at Closing and shall become the responsibility of SELLER. F) Due Authorization. All of the documents to be executed by SELLER and delivered to Buyer at closing: (i) are duly authorized and will be the legal, valid, and binding obligations of Seller, enforceable in accordance with their terms; (ii) do not or will not contravene any existing laws and regulations applicable to SELLER; and (iii) will not conflict with or result in a violation of any agreement, instrument, order, writ,judgment or decree to which SELLER is a party or is subject or which governs the Property. G) No Judgments. That there are no judgments existing against SELLER in any court of competent jurisdiction which constitute or might be construed to constitute a lien of any nature upon the Property and neither SELLER nor any representative of SELLER has received any notice or notices, either oral or written, nor has any knowledge of any action, suit or proceeding pending or threatened against or affecting the Property relating to or arising out of the operation, ownership, custody or control of the Property. H) Litigation. There are no legal actions, suits, or other legal or administrative proceedings, including condemnation cases, pending or threatened against the Property, and SELLER is not aware of any facts which might result in any such action, suit or other proceedings, and there are no outstanding judgments against SELLER or the Property. Agreement to Sell and Purchase......................................................................................................5 129 I)Compliance. SELLER has received no notification from agencies responsible for the enforcement of fire, building and health codes, and other federal, state and local laws applicable to the Property or its operation that either the condition of the property or its operation is in violation of any such laws, rules or regulations, J)Environmental. To the best of the knowledge of SELLER, there are no Hazardous Substances (defined below) on the Property except such as are being used, stored, handled and disposed of in accordance with applicable environmental protection laws. Except for the existence of a Phase 1 Environmental Assessment, which SELLER has provided to BUYER, SELLER has made no investigation or inquiry to determine if any Hazardous Substances exist on the Property or the nature thereof. SELLER has received no notification from any agency responsible for the enforcement of environmental protection laws of any failure to comply with applicable environmental protection laws. No claim has been asserted against SELLER to the effect that SELLER is responsible or liable for cleaning up or removing any Hazardous Substance present on the Property as a result of activities on, or the contamination of,the Property. As used in this paragraph, "Hazardous Substances" means any substances or material defined or designated as hazardous or toxic waste, hazardous or toxic material, a hazardous toxic or radioactive substance or other similar term by any federal, state or local environmental statute, regulation or ordinance presently in effect. The term "environmental protection laws" means all federal, state, and local statutes, regulations and ordinances and administrative and judicial orders defining hazardous substances or relating to the generation, recycling, reuse, sales, storage, handling, transport, and disposal of any Hazardous Substances, K) Books Records Leases Agreements. SELLER shall, at the request of BUYER, make available for inspection by BUYER and its agents as soon as possible but no later than ten(10) days after mutual acceptance of this Agreement all documents available to SELLER relating to the ownership and operation of the Property, including without limitation: (i) statements for real estate taxes, assessments, and utilities, service contracts, leases of personal property or fixtures, leases of all or a portion of the Property, rents, and deposits; (ii) plans, specifications, permits, drawings, surveys, reports, and maintenance records; and (iii)accounting records and audit reports. BUYER shall determine within the due diligence period whether it wishes and is able to assume, as of Closing, all of the foregoing leases, contracts, and agreements which have terms extending beyond Closing. BUYER shall be solely responsible for obtaining any required consents to such assumption. BUYER agrees to indemnify and defend SELLER from any liability including for attorney's fees) arising from or relating to performance required after Closing under such leases, contracts, and agreements and leases assumed by Agreement to Sell and Purchase......................................................................................................6 130 BUYER. This Agreement to indemnify and defend SELLER shall survive Closing. L) Disclosure of Adverse Facts and Accurate Information: There is no significant adverse fact or condition relating to the Property which has not been specifically disclosed in writing by SELLER to BUYER and SELLER knows of no fact or condition of any kind or character whatsoever which has not been disclosed and which materially and adversely affects the Property or the operation thereof substantially as conducted by SELLER as of the date of this Agreement. All statements made herein are true and correct to the best of SELLER'S knowledge, information and belief, and the information provided and to be provided by SELLER to BUYER relating to this Agreement does not and will not contain any statement which is, at the time and in the light of the circumstances under which it is made, false, or misleading with respect to any material fact. 8.BUYER'S WARRANTY AND DISCLOSURE: The BUYER agrees and represents that it has conducted an independent investigation and inspection of the Property and has entered into this Agreement in full reliance thereon, and that there are no other agreements, verbal or otherwise, modifying or affecting the terms hereof, and that BUYER is not relying upon any oral representations made by the SELLER or SELLER'S agents. BUYER specifically understands that the Property is being sold "AS IS" AND WITHOUT WARRANTIES,EITHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,EXCEPT THE WARRANTIES OF TITLE AS HEREINAFTER SET FORTH. 9. TAXES AND ASSESSMENTS: Taxes and assessments on the Property shall be prorated between SELLER and BUYER as of the date of Closing. SELLER shall be responsible for said taxes, fees and assessments as of the date of Closing and at all times prior thereto; BUYER shall pay all taxes, fees and assessments accruing on the Property subsequent to the date of Closing. 10. RISK OF LOSS: The parties hereto understand and agree that SELLER shall bear the risk of loss to the Property and appurtenances until title is conveyed at the date of Closing. 11. POSSESSION: Possession of the subject premises will be delivered to the BUYER on the date of Closing. 12, 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 Agreement to Sell and Purchase......................................................................................................7 1 1 131 information concerning registered offenders available to the public. If BUYER desires further information,he/she should contact the local County Sheriff's office, the Montana Department of Justice, in Helena, Montana, and the probation officers assigned to the area. 13. NOXIOUS WEEDS DISCLOSURE. BUYER 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 obligations as an owner of property, contact either your local County extension agent or Weed Control Board. 14. REPRESENTATION: The parties acknowledge that the law firm of Christian, Samson, Jones & Chisholm, PLLC of 310 W. Spruce, Missoula, Montana 59802, represents BUYER with regard to the preparation of these documents and with regard to the legal consequences of such documents. SELLER is encouraged to have these documents independently reviewed and to seek independent legal advice with respect to the effect of these documents. 15. CLOSING: Closing of the transaction set forth in this Agreement shall occur on the later of(i) within sixty(60) days of the expiration of the six (6) month contingency periods, or ii) within sixty (60) days of the expiration of the due diligence period. SELLER and BUYER may mutually agree in writing to extend the Closing. Closing Agent shall be Security Title Company, Bozeman, Montana. The parties agree to share equally in the fee of the Closing Agent of the transaction. The BUYER agrees to pay all recording fees. Lastly, the parties shall each pay the fees and costs of their own attorneys. 16. SELLER'S OBLIGATIONS AT CLOSING: On or before Closing, SELLER shall deliver to Closing Agent and shall execute such documents as are necessary for the SELLER to take title to the Property, including a Warranty Deed. 17, BUYER'S OBLIGATIONS AT CLOSING: On or before Closing, BUYER shall deliver to the Closing Agent certified funds in the amount of that portion of the purchase price remaining after the Earnest Money has been applied to the purchase price. 18. DEFAULT REMEDIES: A) BUYER'S Default. In the event BUYER shall fail to pay the purchase price as herein provided, to close the transaction as herein provided or otherwise breach any term or condition of this Agreement, SELLER may: 1.Terminating this Agreement by giving written notice to BUYER, in which event SELLER shall be entitled to retain the earnest money deposit made Agreement to Sell and Purchase 132 by BUYER, together with interest earned thereon plus such damages as may be awarded to SELLER by a court of competent jurisdiction or through arbitration; or 2. File and maintain a suit against BUYER for specific performance of BUYER's obligations under this Agreement. B) SELLER'S Default. In the event SELLER shall fail to consummate the sale in accordance with its terms, BUYER shall have as Buyer's sole remedy the option of either of the following: 1. Terminating this Agreement by giving written notice to SELLER, in which event BUYER shall be entitled to immediate return of the BUYER'S earnest money, together with interest earned thereon, plus such damages as may be awarded to BUYER by a court of competent jurisdiction or through arbitration; or 2. File and maintain a suit against SELLER for specific performance of SELLER's obligations under this Agreement. 19. INSTRUMENTS OF FURTHER ASSURANCE: GOOD FAITH: Each of the parties hereto agrees, at their own expense, to execute and deliver to the other at or after the Closing any and all further instruments and documents as either may reasonably request in order to carry out any of the provisions of this Agreement. SELLER and BUYER shall act in good faith in all respects relative to the transactions contemplated hereby. 20. NOTICES: Any notice required or permitted hereunder shall be in writing and shall be deemed delivered if personally delivered or two (2) days after being sent by United States First Class Certified Mail, postage prepaid, to the SELLER or BUYER at the addresses specified herein below. 0 SELLER: BUYER: Bozeman City Manager Micropolitan Enterprises, LLC City of Bozeman Powder River Company, LLC 121N. Rouse Ave. Box 1152 Bozeman, MT 59715 Bozeman, MT 59715 Notices shall be addressed to any other person and address as may be specified from time to time by any party by written notice to the other party. Agreement to Sell and Purchase 133 21. PARTIES IN INTEREST; ASSIGNMENTS: This Agreement, and each and every term and provision hereof, shall inure to the benefit of, and be binding upon and enforceable against, BUYER and SELLER hereto and their respective legal representatives, successors and assigns. 22. BROKERAGE; INDEMNITY: SELLER will indemnify and hold harmless BUYER against all claims for any broker's or finder's fees made or asserted by any person claiming to have been employed by SELLER relative to this transaction and all costs and expenses (including the reasonable fees of counsel) of investigating and defending such claims. BUYER will indemnify and hold harmless SELLER against all claims for any broker's or finder's fees made or asserted by any person claiming to have been employed by BUYER relative to this transaction and all costs and expenses (including the reasonable fees of counsel) or investigating and defending such claims. 23. NO THIRD-PARTY BENEFITS: This Agreement is not intended, and shall not be deemed or construed, to confer any rights, power or privileges on any person, firm, partnership, corporation or other entity not a party hereto, except as otherwise provided. 24. TIME IS OF THE ESSENCE: Time is specifically declared to be of the essence of this Agreement, and of acts required to be done and performed by BUYER and SELLER. 25. GOVERNING LAW: This Agreement is executed and delivered and is to be performed in, and shall be governed by and construed in accordance with, the laws of the State of Montana. 26. ATTORNEY'S FEES: Should either party hereto reasonably retain counsel for the purpose of enforcing or preventing the breach of any provision or alleged breach hereof, including but not limited to instituting any action or proceeding to enforce any provision hereof, for damages by reason of any alleged breach of any provision of this Agreement, for a declaration of such party's rights or obligations hereunder or for any other judicial remedy, then the prevailing party shall be entitled to be reimbursed by the other party for all costs and expenses incurred in connection therewith, including but not limited to reasonable attorney's fees for the services rendered to such prevailing party. 27. ENTIRE AGREEMENT: This Agreement expressly terminating all previous agreements among the parties related to the property, and constitutes and contains the entire agreement between SELLER and BUYER and supersedes any and all prior negotiations, correspondence,understandings and agreements between the parties respecting the subject matter hereof. 28. AMENDMENT: This Agreement may be amended only by a writing signed by each of the parties hereto. Agreement to Sell and Purchase...................................................................................•-...............10 134 F> "` ENI) OF AGREEMENT EXCEPT FOR SIGNATURES Agreement to Sell and Purchase...................................11 135 IN WITNESS WHEREOF, the parties have executed this agreement the day and year last below written. Seller: CITY BQZ 1By: Date: Chris A. Kukulski, City Manager Buyer: MICROPOLI ENTERPRISES, LLC By: Date: _ Z- /1 X1 Clayton R. Schubert, Member PO RIVER COMPAN , LLC By: _ Date: Quin Williams, managing member Agreement to Sell and Purchase..................................................... 12 136 EASEMENT DESCRIPTION PROPOSED EXHIBIT "A'" FLORA LANE 6-2-14N I A 60 foot wide public access and utility easement 30' either side of the following centerline description with the easement sidelines foreshortened and lengthened as necessary to parallel the new easement centerline: Commencing at the Northwest corner of lot 6 of the Gordon Mandeville State School Section Subdivision, Located in Section 36, Township 1 South, Range 5 East of the y Montana Principal Meridian, In the County of Gallatin, State of Montana: Thence North Bg"42'00" West, a distance of 30.00'; Thence North 00'18'00" East, a distance of 160-00' to the C.O.S. 2153 true point of beginning of this easement, being a point onTRACT4-A the northerly right of way line off Flora Lane; Thence North28.360 Acres 0'18'00" East a distance of 1088.7' more or less to the terminus of this Easement at the intersection with the southern property boundary of Tract 4-A of Certificate of Survey No. 2153, Situated in the Section 36, T.1.S., R.5.E., P.M.M., Gallatin County, Montana. Containing 1.50 Acres more or less. POINT OF ITERMINUS I I RICHARD HIXSON, being duly sworn says: That he is the Professional Engineer who made the plot of the right of way shown hereon; that the plat was correctly and accurately made; that the tracing or plat thereof is true andaccurateandthatitcorrectlyshowsthequantityoflandrequiredfortheIrightofwayineachforty-acre tract or government lot and also the amount of land remaining in each portion of such forty-orce tract or government lot. Subscribed and sworn to before me this 'ydtiy of &-k 20-Ltl- PROPOSED 60' PUBLIC ACCESS UTILITY EASEMENT N00° 18' 00.00"E__Zi I 1088.7 POINT OF -- BEGINNING I STATE OF MONTANA ) S5. COUNTY OF GALLATIN ) Helene Q r Lata Ct,t 4 areningar N00° 18'OO.OD"E F1.1 z 1.• . .!YQS Notary Public 160-0 z•'.Xotnttrq4. for the :ttP of hlonta t=Resir`it'._; sT;EALSL' Eiozoman, l4nlnMauN89p4200.00"W_1 30.0 Lot 6 Lat 8 M t My Commission tory Public for the State of Montana Ld March 25,2O','_ 3. n y o Residing at D?P-I'^4/VS } L My Commission Expires 3IVIA ,('S' 0 Lot 5s Lot to ?' v BUYER Lot 4 r% Lot 11 N00' 18' 00.00"E Lot 3 Lot 12 PROPOSED PUBLIC ACCESS DATE. 6j29/14 THE CITY OF BOZEMAN m+ltaa tnvc n1PaLr[>KIOar DRAWN BY: RMG E6 1. Gun--P.O.SNL 1890UTILITYEASEMENTROMMM.xatvr.NA 8MI-1290 PROJECT No.: PHONE:(40a)Bak-2286--F61L• (40a)M2-2263 137 r I —.55 Par=-or T"MNUS,tut t s cT10.ti 7d .. IL ` I I / r sdo l 1 l SEE OETNL 2 4 f I t r 9x149-x14.IT t r1i I I l l rI ECENu1EN801.12;ts" w I l I I l r EASEMENT DESCRIPTION11I NE 1 r4 Sw 114 S A 60 10111 rifle public access and utility easement 30'NH l/+SE 1/4 either side of the fallowing eeniarline 'tiOO with the Eaxmenl Area: 1.1± Acros Easement Areo: 0.79 Aires ecssnenk sidelines f„reshoemned and ;e49thened as Remander. 3&84 Acres F Remainder. 34.21 Acres necessary to parallel the new easement aea leonine; I I Cammencing at the South 1/4 Comer of Section 36,Township 1 South, Range 5 East, PMM Gaftotin County,Manton., I f Thence North 8833'25'Emt,a distanaa of 196,0$'; I l Thence North 00`4724"East, o dislaoee of 57.33' to thetruepointofbeginningofthisCasement,being a point on N 00'25'15" W the na01eiiR/W lint`of Monderlla Lomc;Thence North 76268' 1731'36-W. a distance o1 300.15'; Thencealong a tangent circular curve to the felt with a radius of 300', o cenllalfIangleof1456'03'• on arc distance of 78.19';Thenac Northlrt1527'39"West, a distance o1 699.97'. Thence along aII r tangent Ciewor carve to the right with a radius of 300.0'.I` a central angle of 15102'24 an are d"rstonce of 78,75'; Thence North 0"2515" West, a distance or 762,6W; Thence- North02T15"West. a distance of 801.12 Feet; Thence I i North 0122'40'W; o distance of 9.11'more or less to the 8-300' Point of terminus of this casement, said point being on thee0sl-.est midsection lima of said Section 36, from whichQ= 24" the center 1/4 comer of said section Iles South 89'21'43'L=778,7a,75'East, 5.20 Feel Contorniag 3.76 Acres more or less. SA1L4SE1!4 Easement Area: 1.62 Acres It t Remainder, 36.38 Aces 4 1 STATE OF MONTANA, 55. I4 COUNTY OF GALLATIN SE.1/a Sw 1 fh ! t t N 169913T W RICHARDlttX=;.being duly sworn says: That he is the Professional Engineer t {who made the plot of the right of way shown hereon; that the plat wosEasementArea: 0.24 Acres correctly and accurately made; that the trorini9 or plat thereof Is true andRemainer: 34.76 Acres accurate and that it earrertly shows the quantity of fond required for therightofwayineachfatty-acre tract or goarnvmernt lot and of=the amount l t+ t of fend remaining in each portion f ah forty"-a ant or ovemment lot. h i Subscrbed and sworn la before me this L-4& day of t 20-114, L,14'56'03'Notary btic far the to f AfonlanaL-78.19' Residing at p 4Z Any Cammisslon Cicpires 1 '-300'N 00'39"36` w tZ` S00,jrj' lttllltlifllripr SOUTH j CORNER SEC. 36 M dow,'.ie Lane SEE DETAIL 1 U rZ' BUYFR' ff, ' r°711int14[a TRUE PCI-NT4mk OF BEGINNING S I N ' E 57-357.33' N 68'53'25"[ S i CORNEf2 196.0$ SEC11ON36 DETAIL 1 N.T.S. PROPOSED CITY OF BOZEMAN PUBLIC ACCESS 8c EXHIBIT A ENGINEERING DEPARTMENT UTILITY EASEMENT MARCH 2004 PROPOSED EXHIBIT "A" FOR WHEAT DRIVE - 6-2-14 138 CERTIFICATE A TRACT OF LAND BEING TRACT A OF CERTIFICATE OF SURVEY No. 939 AND TRACTS 1 , 3 & 4 OF CERTIFICATE OF SURVEY NO. 1723 SITUATED IN THE NW1 /4 OF SECTION 36, TAS., R.5E., P.M.M., GALLATIN COUNTY, MONTANA FOR: JOHN & DONNA MANDEVILLE AND JANUARY, 2000 CRAIG & CONNIE MANDEVILLE SCALE:1 = 300 BOZEMAN, MONTANA BY: GASTON ENGINEERING AND SURVEYING Point of GRAPHIC SCALE Beginning 300 0 130 300 too 1200 NW CORNER SEC 36 FND REBAR do ALUM CAP L3 IN FLET } N 00'20'58" E 1 i' 1 inch = 300 & 147.62' i 1 9 AREA i 8S S GROSS AN T AREA = 4 N 04'58'21" W ss" \ D NE E 853 6ACRES 343.21 h BASIS OF BEARING F O T E-W MID SECTION LINE OF SECTION 36 AS SHOWN ON C.O.S. No. 1723 - BEARING IS N 89'21'43" W A = 06'3834 AA rss R = 2196.58' Mj e 06' NOTES L = 254.67 1 ti .s FOUND REBAR WITH Y.P.C. UNLESS OTHERWISE NOTED FND M.D.O.T- RIGHT-OF-WAY MONUMENT C 2RAC 1 A 1 TRACT 2-A o = SET 5/8" X 24" REBAR WITH CAP 8 R) = RADIAL BEARING 10.002 Acres 05 04'20'09" 630.00' f• R 4379.25' 0=481.55 41 72. LINE TABLE0=43'4742" L = 331.40' s y ,w o LINE LENGTH BEARINGra0L1124.76 N IO6'34' 228.20 N1t L3 92 WW25N$9'30'0SgZ'4314 3 I TRACT 2 N61 LOT 1 I N 133.13' 04'5704" P EXISTING EASEMENT TOYELLOWSTONEPI R=4407.5 ' PER B 1 PG. E INE CO. L=380.87 TRACT 3-A \ \ 24.761 Acres IRodid) S 84'545' w Q S88*0725N 407.25' LOT 3 R=3619.69 S"OVTAL 7RAX c;OURT 3 j. L=628.60 w w 1 TRACT 4-ALOT5 I Cal TRACTACTrs3 z 28360Acres LOT 12a' N08'28'24"E DEAD MAN'S at 217.13 CENTER 1/4 COR SEC 38 F FND 5/8" REBAR w/ALUM CAP 967.68' 855.69' E-w MID SEC11ON LINE - N89`21'43"W 1823.37' W 1/4 CORNER OF7 N 89'21'43" W 2683.43' SECTION 34 FOUND STATE' OF MONTANA5/8" REBAR W/CAP DESCRIPTION A Tract of land being Tract A of Certificate of Survey No. 939 and Tracts 1, 3 and 4 of Certificate of Survey No. 1723, situated in the NW1/4 of Section 36, T1S„ R.5E , P.M.M., Gallatin County, Montana, and being further described as CERTIFICATE OF SURVEYORfollows: Beginning at a point being the northwest comer of said Section 36, said point being on the east Right-of-way line of I, the undersigned, Dennis L. Foreman, Registered Land Surveyor, do hereby certify that during August 1999, 1 surveyed Interstate Highway 90; Thence along the north line of said Section 36 (0) N 89'30'02" E a distance of 92,25 feet to a Certificate of Survey and platted the some as shown on the accompanying Certificate of Survey and as described in point on the south line of Montana Rail Link; Thence along said line S 53'37'55" E a distance of 1559.06 feet, accordance with the provisions of the Montana Subdivision and Platting Act, Section 76-3-101 thro"0r1;7e,%, 625, M.C.A. S 53'31'12" E a distance of 1762.94 feet to curve to the right with a radius of 3619.69 feet a distance of 628.60 feet and the Gallatin County Subdivision Regulations. r4 T and S 43'34'12" E a distance of 416.35 feet to a point on the north line of State of Montana Lands, said point also being on the E-W mid-section line of said Section 36; Thence along said line N 89'21'43" W a distance of 1823.37 Dated this day of 1 NUA Y - _- 2000 feet to a point being the southeast comer of Tract 2 of said Certificate of Survey No. 1723; Thence along the east and y r northerly lines of said Tract 2 N 08'28'24" E a distance of 217.13 feet, N 5857'57" W a distance of 1307.86 feet and S 88'07'25" W a distance of 407.25 feet to a point on the easterly Right-of-way line of Interstate Highway 90; Dennis L. Foreman Thence along sold line along a non-tangent curve to the left with a radial bearing of S 84'45'45"W with a radius of Registration # 5606S 4407.50 feet a distance of 380.87 feet, (L1) N 06'06'34" E a distance of 124.76 feet to a non-tangent curve to the righty with a radial bearing of S 82'43'14" W with a radius of 4379.25 feet a distance of 331.40 feet, (L2) N 11'36'55" W a distance of 228.20 feet to a curve to the right with a radius of 2196.58 feet a distance of 254.67 feet, I N 04'58'21" W a distance of 343.21 feet to a point on the west line of said Section 36; Thence along said line CERTIFICATE OF COUNTY TREASURER vflillrsfllf1al N 00'20'58" E a distance of 147.62 feet to the Point of Beginning. Said Tract being 85.346 acres along with and subject to any existing easements.1, Jeffrey K. Krauss Treasurer of Gallatin County, Montana, do hereby certify that the accompanying plot or Certificate of Survey has been duly exomined that all real property taxes and special assessments assessed and levied on the land to CERTIFICATE OF EXEMPTION be subdivided have bw paid. We Certify that the purpose of this survey is to relocate common boundaries between adjoining properties. Therefore this Dated this day of 2000. survey is exempt from review as a subdivision pursuant to Section 76-3-207 (1)(a), M.C.A., as amended. We hereby Certify that Tract 2A is not subject to Montana Department of Environmental Quality review pursuant to 17.36.605 j Treasu o 1 t-Ir, County2)(b) A.R.M. which allows for divisions made to correct errors in construction where buildings, shrubs or other permanent vegetation may encroach upon the neighboring property. Tracts 1A, 3A and 4A are greater than 20 acres and are exempt from review. D ed _A-'____ day of 2000 CERTIFICATE OF COUNTY COMMISSIONERS I, the Chairman of the Board of County Commissioners, do hereby certify that the use of the exemption claimed on the o n andevllie Donna R. Mandeville accompanying Certificate of Survey has been duly reviewed, and has been found to conform to the requirements of the Subdivision and Platter Act, Section 3-101 et.seq. M.C.A. and the Gallatin County Subdivision Regulations.STATE OF MONTANA l SS Dated this day of 2000. County of Gallatin Oersonoll 2.6 geared John IIR Mandeville andbonno R. Mandeville, husband and wifo!L" h 6-to : for the,State of Montana,Y_ rtµ.yNotaryme, n p y pp td me to be the parsons airmanwhosenamesaresubscribedtointheaboveinstrument, and who acknowledged to -that they exe00ed_the some, Board of County Commissioners WITNESS my hand and seal, the day and year abovv-e first written. 11.1a. _ l.t. .-tai ri•-q Notary Public for the State of MT c` .. ,. CERTIFICATE OF CLERK & RECORDER Residing at Z,,.i..>t.K, AAS My Commission Expires 7/y;/2ri1L- I, ____________ __--_____, C erk & Recorder of Gallatin County, Montana, do hereb ce ify that the foregoing Dote this t- instrument was filed in my office at o'clock, (o 1. or p.m.). this __Alh-day of - A.D., 2000,day of __ _ 2000 and assigned Certificate of Survey No, A]3-, Records of the Clerk & Recorder, Gallatin County, Montana Craig A.. ondeviile N Connie J. Mdfideville Dated this day of v , 2000. T- STATE OF MONTANA } BY: SS Clerk & Recorder County of Gallatin On this ;-6 w day of J t! 2000, before me, a Notary Public in and.f,9h;the 4tate of Montana, personally appeared "Craig A.. Mandeville and Connie J. Mandeville, husband and wife" know) 't9, nM trK persons whose names are subscribed to in the above instrument, and who acknowledged to me thbt,,Ahey. exe i ftt some.20071110 WITNESS my hand and seal, the day and year above first writer. 9 Page: 1 of 1 02/17/2900 03:14P Notary Public for the s ate of MT a Shelley Vance-Gallatin Co MT PLAT 7.00 GASTON ENGINEERING y s , .ir SURiBYING SOILST&STIlYG Residing at My Commission Expires 7/ Ny J ,WARY A 10160 139 08 Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Brit Fontenot, Economic Development Director SUBJECT: Approval of Resolution 4426 Adopting the North Park Properties Concept Land Use Plan. MEETING DATE: January 14, 2013 RECOMMENDATION: Approve Resolution 4426 adopting the North Park Properties Concept Land Use Plan and direct Staff on the future of the city- owned North Park property. RECOMMENDED MOTION: I move to approve Resolution 4426 adopting the North Park Properties concept land use plan. OR ALTERNATIVE MOTION: I move to approve Resolution 4426 adopting the North Park Properties Concept Land Use Plan and direct staff to pursue one of the following or an alternative option or options provided by the Commission: 1) Maintain the current status and condition of the North Park property; 2) Sell the property in whole or part, unconditionally or with conditions to develop in keeping with the North Park vision; 3) Develop the property in keeping with the North Park vision; 4) Turn the property over to a management/development authority or entity to develop and manage the property in keeping with the North Park vision; and/or 5) Alternative option or options provided by the Commission. 1 840 INTRODUCTION: Staff recommends adoption of the North Park Properties Concept Land Use Plan (the Plan") through approval of Commission Resolution 4426 (Attachment 1). Adoption of the Plan does not obligate the City to implement any part, or parts, of the Plan. As provided for in the motion and vote language above, adoption of the Plan requires no further action by the Commission. T he Commission may adopt the Plan and provide no a dditional direction; however, staff suggests that if the Commission adopts the Plan, direction to staff concerning the future of the City-owned portion of the North Park properties, be provided. The name of the project was changed from Mandeville Farm Concept Land Use Plan to North Park Properties Concept Land Use Plan in order to re-launch the project without the negative history associated with the purchase of the City-owned portion of the property in 2003 and the ensuing litigation. The settlement is now final and the City of Bozeman retains a clean and clear ownership title to the City-owned portion of the North Park properties. In the context of the Plan, "North Park property"refers to the approximately 85 acres city-owned portion of the property formerly known as the Mandeville farm and "North Park properties" refers to the combination of the City-owned portion and the approximately 190 acres of State of Montana owned property managed by the Department of Natural Resources and Conservation ("DNRC") for the benefit of the Montana public education system. BACKGROUND: BriefHistory of the North Park Properties The City-owned portion of the North Park properties was purchased from John and Donna Mandeville in July, 2003 as a potential future site of a City-owned and operated solid waste transfer station. By 2003, the approximately 190 acres of the State-owned portion was aggregated by the State of Montana. Most of the State-owned portion of the North Park properties was acquired at Statehood as part of the Enabling Act of 1889, the remainder was acquired from the Mandeville family in 2003. Combined both properties total approximately 275 acres and currently support agricultural activities. The City-owned portion of the property consists of approximately 85 acres, is zoned M-2 manufacturing and industrial) and is within the boundaries of an industrial tax increment finance, or TIF, district. The 190 acres of State owned property is zoned M-1 (manufacturing and industrial). The industrial TIF District, encompassing both parcels, was established in 2006 with a 15 year term. The industrial TIF District is 6 years old and approximately 40% through its "life"; It sunsets in 2021. Given the 20 — 30 year time horizon of the Plan, consideration should be given to extending the life of the industrial district. The City-owned portion of the North Park property was subdivided and platted preliminary) but due to rising project costs, objections from nearby residents and other related issues, the transfer station was never constructed. The City's Economic Development Council EDC") and internal Economic Development Team ("EDT") have discussed the North Park properties on several occasions and have suggested the existing preliminary plat design on the 2 821 City-owned 85 acres may not represent the highest and best design for the property today. Given the amount of money invested in the engineering and preliminary platting of the City-owned portion of the North Park properties and despite the uncertainty of the applicability of the existing preliminary plat design, in April, 2012, the preliminary plat on the City-owned portion was extended for two additional years. The original site design and engineering on the City- owned portion of the North Park properties was intended for an entirely different configuration and mix of uses than being contemplated in the Plan. Currently, infrastructure resources are limited on the property. There is an absence of a road network, curbs, gutters, sidewalks and functional water and sewer services. Additionally, there are poor intersections for ingress and egress and limited connectivity to the existing street network. Please note that a small portion of the State-owned North Park properties, managed by the DNRC, was identified as a possible location for future Bozeman Fire Station 7 in the Fire Protection Master Plan adopted by the City Commission in August, 2006, see page 170. RATIONALE FOR THE PLAN: The Commission identified North Park as part of their number one 2012 —2013 Work- Plan goal via implementation of the adopted 2009 Economic Development Plan, integrating economic development principles throughout the organization through the adoption of a North Park Properties Concept Land Use Plan in collaboration with the DNRC. To assist with the project, the EDC identified several high growth potential sectors including manufacturing and fabrication, along with the bio-science and bio-technology, high- technology, photonics and the outdoor industry as sectors that the City should encourage and support in an effort to create new, higher paying and skilled jobs while diversifying the local and regional economies. The North Park properties represent a physical location where these types of economic activities can be encouraged and supported. Plan Obiectives Primarily, the objective of the Plan is to raise awareness of the economic development potential in terms of job creation and economic diversification that exists in the North Park properties. Additionally, an objective of this Plan is to demonstrate how governmental organizations and the private sector can work together to support a vision greater than any one partner organization. Also, an objective of the Plan is to provide a locally supportable, market based economic analysis and feasibility study and concept land use plan using local data, codes, standards and regulations and adding realistic infrastructure cost estimates through multiple phases to establish viable use patterns, timelines and costs to inform decision making and decision makers. Finally, given market conditions and development costs, the Plan establishes a sense of urgency for the development of the North Park. Specific objectives for the North Park project are shown below in long, medium and short term time horizons. The total build-out time frame for the entire North Park properties is 25- 30 years. Please note that many of the medium and short term objectives are complete or are currently underway. 3 882 Long term objectives (present—25 to 30 years) 1) In partnership with the DNRC, create a place (and space) where, once developed, high growth potential businesses including manufacturing and fabrication, bio-science and bio-technology, high-technology, photonics and the outdoor industry and others, can start, grow or relocate to North Park, resulting in the creation of new jobs and increased economic diversity(Underway); and 2) Continue with infrastructure improvements for undeveloped phases. Medium term objectives (present— 12 to 24 months) 1) Identify and seek funding sources for the preliminary engineering report and Phase I infrastructure development (Underway); 2) Create and/or adopt a management and operational structure that will manage the development of the North Park properties (Underway); 3) Identify and/or secure an anchor tenant or tenants (Underway); and 4) Commence Phase I infrastructure improvements. Short term objectives (present 3 to 6 months) 1) Complete the North Park Properties Concept Land Use Plan and the North Park Properties Marketing Brochure (Completed); 2) Commission approval of the North Park Properties Concept Land Use Plan (Underway); 3) Add the North Park Phase 1 infrastructure improvements to the CIP (Completed); 4) Identify capacity expanding, off-site improvements that may aid in the development of the North Park properties, i.e. intersection control device at the intersection of North 7th Avenue and Griffin Drive (Completed); 5) Re-name and re-brand the project from Mandeville Farm to North Park(Completed); 6) Recreate/extend the life of the industrial TIF district; 7) Phase 1 Environmental Site Assessment(Completed); 8) Low to moderate income study, or LMI, to support a State of Montana Department of Commerce economic development public infrastructure grant application(Underway); 9) Preliminary engineering report or PER, to support a State of Montana, Department of Commerce, CDBG for public infrastructure application (Underway); 10)Install appropriate signage at key locations on the property representing the vision of North Park; 11)Property appraisal; and 12)Phase 1 preliminary platting. Selling all or part of the City-owned portion of North Park at anytime, conditionally or unconditionally, as allowed in §§ 2.06.880 through 2.06.910 of the Bozeman Municipal Code, remains an option. 4 843 THE NORTH PARK PROPERTIES: North Park Properties Physical Adiacencies and Geographical Assets Its size, approximately 275 acres within Bozeman city limits, as well as North Park's existing zoning designations (M-1 and M-2), current inclusion in an industrial TIF district, potential as a Foreign Trade Zone (FTZ), proximity to, and frontages on, Interstate 90, interchanges at North 7th Avenue, North 19th Avenue and a future interchange near Belgrade at the Bozeman Yellowstone International Airport, the existing rail corridor and possible rail spur and proximities to North 7th Avenue, Griffin Drive, Frontage Road, and Bozeman Yellowstone International Airport, collectively support the concept of the North Park properties as an ideal location for the development of a mixed use, light manufacturing/fabrication and/or distribution centers, commercial and/or hospitality center(s), flexible, unique and specialized office and hi- tech facilities (technology, biosciences, etc.) with the vision of creating new job opportunities and increasing the economic diversification in southwest Montana. The North Park vision is supported by local market data research and feasibility studies conducted by the consultants in preparation of the final Plan. Please note that a significant connectivity improvement suggested in the preferred option identifies a possible overpass spanning Interstate 90 and linking Baxter Lane and Mandeville Road. This connection is identified in the Greater Bozeman Area Transportation Plan (2007 update),p. 3-38. PARTNERSHIPS: In the early stages of the project (2011) it became clear that the City of Bozeman and the State of Montana, through the DNRC, would benefit by working collaboratively on the North Park project. Each piece of property has inherent advantages and disadvantages. When considered and planned separately, many of the inherent disadvantages remain, i.e. size, transportation connections, land features (grade, creeks etc.). When aggregated, the properties may still have certain disadvantages like access and connectivity; however, the overall benefit of working in cooperation with the DNRC on N orth Park begins to mitigate some of the disadvantages outlined above. T he City and the DNRC are an example of an effective partnership. With the assistance of our consultants, we have jointly brought the North Park Properties Concept Land Use Plan to life. Both organizations agree on the overall vision of the North Park project as a place where job creating and industry diversifying businesses can come to start, grow or relocate operations adding value to the property, the community and the region. The North Park properties and associated plans and projects represent an important piece of the City's economic development strategy and works in cooperation with many other economic development projects currently underway, i.e. the MSU Innovation Campus, Gallatin College Programs and overall cluster support and development. 5 854 It is important to note that as the MSU Innovation Campus begins campus expansion within the recently established South Bozeman Technology District, there will likely be opportunities to work together to facilitate the success of each site, the Innovation Campus and North Park, by collaborating on t he most appropriate locations for new and expanding businesses. THE NORTH PARK PROPERTIES CONCEPT LAND USE PLAN: North Park Properties Concept Land Use Plan The North Park Properties Land Use Plan was a cooperative effort between the City, the DNRC, CTA Architects Engineers, MXD Development Strategists, City of Bozeman Planning Department and Grants and Engineering Divisions, the Northern Rocky Mountain Economic Development District (the "NRMEDD"), the Prospera Business Network ("Prospera"), The Bozeman Area Chamber of Commerce (the `SACC") and local business owners and real estate and development professionals. As discussed above, the goals of the Plan are to recognize the community value, in terms of job creation and economic diversification, in developing the North Park properties in some form or iteration using the Plan as a framework for development. Also, the Plan demonstrates effective intergovernmental partnerships. Additionally, the Plan establishes the uses of the North Park properties based largely on local sources of information, i.e. local codes and requirements, building data, real estate market data and trends etc., while factoring in regional and national trends and sources. While the Plan has a 2 5- 30 year outlook, the father away from the data collection the less reliable are the assumptions. Lastly, given market conditions, bare ground development costs and time lines, the Plan establishes a sense of urgency. The Planning Process This section of the memo describes the process for creating the DNRC partnership and getting the North Park project underway. In August, 2011, City staff was contacted by Mr. Craig Campbell, Unit Manager for the DNRC's Bozeman Field Office to discuss City plans for the Mandeville [North Park] property. Mr. Campbell was informed that our EDT was working on the issue and was exploring how an FTZ might function on the property. The EDT quickly entered into discussions with the DNRC about the 200 +acres of State public school trust land. It was during those discussions that the DNRC was informed of the availability of Community Development Block Grant (CDBG) economic development planning grant and the City's desire to apply for the grant in order to produce a workable plan for the City-owned 85 acres of North Park. Recognizing that the DNRC has similar goals for maximizing the economic output of the State's school trust lands, they were invited to join the City's effort to seek the grant in partnership. The DNRC manages approximately 190 acres known as the State [of Montana] school trust lands to the south, south-east, and contiguous with the City-owned North Park property. The stated goal of the DNRC is "manage the State of Montana's trust land resources to produce 6 865 revenue for the trust beneficiaries while considering environmental factors and protecting the future income-generating capacity of the land." Rather than simply plan for the City-owned portion of the North Park property, we endeavored to plan for the approximately 275 acres of City and State-owned property. Additionally, the DNRC matching funds in the amount of 12,500 offset the total required grant match of$25,000 by one-half. The CDBG Economic Development Planning Grant presented a unique opportunity to partner with the State of Montana through the DNRC and collectively plan both properties to work together on one site. The North Park vision is to create a place in southwest Montana wherein manufacturers of products, i.e. textiles, vaccines, lasers, informatics, etc., can realize cost savings, increase efficiencies or take advantage of the existing TIF or future FTZ and/or proximities to transportation corridors and air services by strategically locating, re-locating or expanding operations into an area supportive of efforts to encourage job growth and increase the economic diversity of southwest Montana. These efforts support Commission goals of creating jobs and diversifying the local and regional economies. The North Park properties represent the garden in our economic gardening strategy, a physical space where businesses can germinate, grow, or become transplanted. The City successfully negotiated, and the Commission approved, a Memorandum of Agreement (MOA) with the DNRC in September, 2011 to collaborate on a land use plan for the properties now collectively known as the North Park properties. On September 19, 2011, the Commission authorized the City Manager to sign and submit the grant application for the Montana Community Development Block Grant(CDBG), Economic Development Program 2011 Planning Grant, in partnership with the DNRC. In November, 2011, The City received the $25,000 C DBG grant for economic development from the Montana Department of Commerce. As outlined in the MOA, the City and the DNRC agreed to equally divide the match requirement in the amount of$12,500 each. In January— March, 2012, the City and DNRC proceeded to draft and publish an RFP for professional services to produce a joint land use and marketing plan for the North Park properties. The City and the DNRC received five (5)proposals, interviewed four(4) respondents and chose CTA Architects Engineers and MXD Development Strategists as project consultants. On April 9, 2012 t he Commission authorized the City Manager to sign a contract for services with CTA Architects Engineers (CTA) for the commencement of the North Park Properties Concept Land Use Plan. On April 23, 2012 C TA provided the Commission with a special presentation outlining the goals and strategies of the project and plan. Additionally, CTA organized two public stakeholder meetings designed to open the public discussion on t he use of the North Park properties and identify opportunities for sustained economic development on the site. In addition to the public stakeholder meetings and in conjunction with the Plan development, staff, Prospera, the NRMEDD, and the BACC organized and/or attended several developer and anchor tenant meetings. The goal of these meetings was twofold. First, the team intended to generate interest 7 846 in the project. Second, we sought to listen and understand the needs of interested developers and potential anchor tenants. We also met with private and public sector leaders. Many of whom maintain a high level of interest in the North Park project. Proiect Funding We continue to discuss Phase I development funding. The estimated Phase I development costs associated with the preferred development option, Option D, page 91 of the Plan, is approximately $5.4m. With Plan completion, we have expended all the funds available from the Department of Commerce for the original planning grant. If the Plan is approved and direction to move forward provided by the Commission, we intend, in cooperation with the DNRC, to seek additional funding to complete the Preliminary Engineering Report (PER). Possible sources for PER funding include the City's General Fund, the State's Big Sky Trust Fund and/or the U.S. Economic Development Administration. On December 3, 2012 t he Commission approved the Capital Improvement Plan (CIP) which includes North Park Phase I improvements (GF 185) broken down over three fiscal years: 1) Scheduled in FY 14 — $150k (for partial Phase 1 development including preliminary engineering, site, geo-technical and platting work); 2) Scheduled in FY 15 - $4.6m (for partial Phase 1 development including completing the geotechnical and platting work, if necessary, and major Phase I infrastructure improvements); 3) Scheduled in FY 16 - $550k(for completion of the Phase 1 development) It should be noted that the CIP process was completed prior to the North Park Properties Concept Land Use Plan review or adoption by the Commission. North Park Phase I improvements shown on the CII' in FY 14 — 16 will be adjusted based on Commission direction for Plan implementation. Also in 2012, the Commission approved adding an intersection control device(s) at the Griffin Drive/Mandeville Road and North 7th Avenue (south and east of the North Park properties) intersection to the CIP as unscheduled items in the amount of $500k from street impact fees (SIF33). Public/private partnership arrangements should also be considered as a potential source of funding for Phase I infrastructure improvements. Additionally, we are aware of a State of Montana, Department of Commerce, CDBG for public infrastructure in the amount of$400k($400k match required). Grant applications are due in May, 2013 and require and completed PER and LMI referenced above. During plan development we discussed and researched the concept of establishing a development entity or authority that would be contractually responsible for the development of North Park. If the Plan is adopted and implementation follows, we should be prepared to discuss management and ownership alternatives to the City as property owner, property developer and development regulator. A s part of our research and investigation into development authorities/entities we traveled to Great Falls, Montana to discuss the success of the Great Falls 8 887 Development Authority (GFDA) managed by Mr. Bret Doney. The Great Falls model may be transferable to Bozeman. If directed to do so, staff will return to the Commission in the future to discuss specific models and options for the structure of ownership, management and operations of North Park. The Marketing Brochure North Park Properties Marketing Brochure The North Park Properties Marketing Brochure was created along with the Plan using the information and graphics provided by the consultants for generating interest in the North Park project to Bozeman residents and business owners, the wider southwest Montana community, potential anchor tenants, development and real estate professionals and public officials. NEXT STEPS IN COOPORATION AND COORDINATION WITH THE DNRC: If the Plan is adopted, the next most critical next step in the North Park project includes Commission direction on the goals with, and future of, the City-owned North Park property. The Commission may have additional options not listed below. Some options include: Determining the North Park Vision 1) Maintain the current status and condition of the North Park property; 2) Sell the property in whole or part, unconditionally or with conditions to develop in keeping with the North Park vision; 3) Develop the property in keeping with the North Park vision; 4) Turn the property over to a management/development authority or entity to develop and manage the property in keeping with the North Park vision; and/or 5) Alternative option or options provided by the Commission. If direction is given on which path to pursue any number of next steps are required. The list of"next steps" below assumes the Plan is approved and the North Park project is directed toward options 2), 3) and/or 4) listed above. Some or all of the steps may be required as the North Park direction is refined. Any action will have associated costs. Possible Next Steps 1) Add signage at the appropriate areas to encourage interest; 2) Preliminary Engineering Report (approximately $100k) March 1St, 2013. Possible funding sources include: a. BSTF Planning Grant — $50k (inc. $12.5k match from each City and DNRC); b. EDA Grant - $50k($50k match with CDBG and COB/DNRC funding); c. City's General Fund, see CIP, FY 14 - 16. 3) Identify an ownership, management and operational structure for North Park; 4) Secure a property appraisal; 9 848 5) Begin preliminary platting process; and 6) Re-establish industrial TIF district. UNRESOLVED ISSUES: The most substantial unresolved issue is that of the vision and direction of the North Park project. Once the North Park vision is established by the Commission there are many additional unresolved issues to consider. If job creation and industry diversification are cornerstones of our economic development strategy and if the North Park vision represents an opportunity to strengthen these economic cornerstones, and in order to move the project forward past the planning stage into the implementation stage we will require more leadership, more hard work and more commitment. Additionally, we must move forward on answering the following questions: 1) Who is interested in becoming the anchor tenant or tenants? 2) What incentives will be necessary to secure commitments for anchor tenants? 3) Where will Phase I infrastructure funding come from? 4) When will Phase I infrastructure funding be available? 5) How will the ownership, management, development and operational structure function at North Park? ALTERNATIVES: As determined by the Commission. FISCAL EFFECTS: The direction on t he future of the North Park project will determine the ultimate fiscal effects. If the status quo is maintained, the fiscal effects will continue to be minimal. If the Commission directs something other than that, the costs will rise commensurate with the scale and scope of the project. It should be noted that the fiscal effects have the potential to be significant. Specific effects are undetermined at this time. Attachments: 1. Resolution 4426 adopting the North Park Properties Concept Land Use Plan. Report prepared on December 27, 2012 10 909 ca e y RESOLUTION NO. 4426 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, ADOPTING THE NORTH PARK PROPERTIES CONCEPT LAND USE PLAN. WHEREAS, job creation and industry diversification are critical to the long-term economic vitality of Bozeman; and, WHEREAS, the City wishes to stimulate, encourage and support the attraction, retention and growth of jobs and industry in a variety of high growth potential sectors. The number and diversity of jobs created in a variety of sectors including manufacturing and fabrication, bio- science and bio-technology, high-technology, photonics and the outdoor industry have high growth potential and support moderate to high income employment; and, WHEREAS, the City of Bozeman's 2012 — 2013 adopted Work-Plan includes the implementation of the adopted economic development plan, integrating economic development principles throughout the City of Bozeman organization which includes the adoption of a North Park properties [formerly Mandeville farm] concept land use plan in collaboration with the Montana Department of Natural Resources and Conservation("DNRC"); and, WHEREAS, the City of Bozeman and the DNRC have collaborated on the North Park Properties Concept Land Use Plan (the "Plan") which includes contiguous property owned by the City of Bozeman (85.34 acres) and the State of Montana (189.66 acres) and entirely within the Bozeman city limits, and, WHEREAS, when combined, the North Park properties represent the largest contiguous M-zoned parcels adjacent to a rail line within the Bozeman city limits; and, WHEREAS, the North Park properties are entirely included in an established (2006) industrial tax increment finance district; and, WHEREAS, the North Park properties site is zoned M — 1 and M — 2, the highest intensity zoning districts allowed, and could support the uses identified in the Plan; and, 1 950 WHEREAS, the Plan suggests reasonable development patterns, configurations and timelines based on locally, regionally and nationally acquired market and feasibility data; and, WHEREAS, the Plan provides cost estimates on infrastructure requirements for North Park Phases I—IV; and, WHEREAS, the Bozeman City Commission did, on the 7th day of January, 2013, conduct a public hearing to consider the proposed Plan. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, that: Section 1 That the North Park Properties Concept Land Use Plan, attached hereto as Exhibit A, is hereby adopted. Section 2 That the North Park Properties Concept Land Use Plan includes a marketing brochure for the site and is attached hereto as Exhibit B. Exhibit B is hereby incorporated herein and made a part hereof. This resolution shall be in full force upon passage and approval. PASSED AND APPROVED by the City Commission of the City of Bozeman, Montana at a regular session thereof on the of 2013. SEAN A. BECKER Mayor ATTEST: STACY ULMEN, CMC 2 9s1 City Clerk APPROVED AS TO FORM: GREG SULLIVAN City Attorney 3 932 MINUTES OF THE SPECIAL MEETING OF THE CITY COMMISSION BOZEMAN, MONTANA January 14, 2013 The Commission met in the City Commission Room, City Hall at 121 North Rouse on Monday, January 14, 2013. Present were Mayor Sean Becker, Deputy Mayor Jeff Krauss, Commissioner Cyndy Andrus, Commissioner Carson Taylor, Commissioner Chris Mehl, City Manager Chris Kukulski, City Attorney Greg Sullivan, and City Clerk Stacy Ulmen. These minutes are not wordfor word and should be considered along with the audio recording. 0:33:36 A. Call to Order—6 p.m.—Commission Room, City Hall, 121 North Rouse Mayor Becker called the regular meeting to order at 6:02 p.m. 0:33:40 B. Pledge of AIlegiance and a Moment of Silence 0:34:20 C. Changes to the Agenda Mayor Becker asked City Manager Chris Kukulski if there were any changes to the Agenda. Mr. Kukulski stated no. 0:34:26 D. Public Service Announcement— City Office Closure on Monday,January 21st (Ulmen) City Clerk. Stacy Ulmen gave a PSA regarding the City Office Closure on Monday, January 21 st. 0:35:32 E. Minutes—December 10th, December 17th and December 28th,2012 0:35:36 Motion and Vote to approve the Minutes from December 10th, December 17th and December 28th, 2012 as submitted. It was moved by Cr. Andrus seconded by Cr. Taylor to approve the Minutes from December 10th, December 17th and December 28th, 2012 as submitted. Those voting Ave being Crs.Andrus, Taylor, Mehl, Deputy Mayor Krauss and Mayor Becker. Page 1 of 9 153 Minutes of the Bozeman City Commission,January 14,2013 Those votine No beim none. The motion passed 5-0. 0:35:55 F. Consent 1,Authorize Payment of Accounts Payable Claims (LaMeres) 2.Authorize issuance of a Call for Projects from local non-profits, non-governmental organizations and similar community service providers interested in applying for a Community Development Block Grant under the Economic Development Program through the City from the Montana Department of Commerce (Stocks) 3.Authorize City Manager to sign the Christenot Annexation Public Street and Utility Easement (Murray) 4.Authorize City Manager to sign the Leep Annexation Public Street and Utility Easement Murray) 5.Approve Cancelling the Commission meeting the week of January 21st (Ulmen) 6.Finally Adopt Ordinance No. 1852,establishing an initial zoning of Community Business District (B-2) for the Cresent Cross annexation at the SE corner of Huffine Lane and Cottonwood Road (Saunders) 7. Appoint Chris Kukulski to the Montana Municipal Interlocal Authority Board of Directors Kukulski) 0:35:56 Public Comment Mayor Becker opened Public Comment on the Consent agenda. No person commented. Mayor Becker closed public comment. 0:36:12 Motion. and Vote to approve Consent items F. 1-7 as submitted. It was moved by Cr. Taylor, seconded by Cr. Mehl to approve Consent items F. 1-7 as submitted. Those voting Aye beim Crs. Taylor, Mehl, Deputy Mayor Krauss, Cr. Andrus and Mayor Becker. Those voting No beim none. The motion passed 5-0. 0:36:26 G. Public Comment Mayor Becker opened general public comment. No person commented. Mayor Becker closed public comment. 0:36.53 H. Special Presentation—Street Lighting Inventory (Emily Baker) Page 2 of 9 154 Minutes of the Bozeman City Commission,January 14 2013 0:37:02 Chuck Winn, Assistant City Manager Mr. Winn began the presentation for the Street Lighting Inventory and introduced City Intern Emily Baker. 0:38:11 Emily Baker, City Intern Ms. Baker stated that she is an Energy Core Member and gave the presentation for the Street Lighting Inventory which she put together. She explained why this was done, mapping, contracts, a review of current districts, findings including billing errors,$5,000 in refunds and 13,000 in savings identified, the amount of lights, sky compliance, metered lights, the LED pilot program and how the information will be used. 0:48:43 Commission questions for Staff The Commission and staff discussed future management of the lights,the errors in billing, dark sky safe lighting, light replacement, LED lights, expected savings, updating the data base, and the next steps with this information. 0:59:59 I.Action Items 1:00:01 1. Creekwood Guest House/Vacation Rental Conditional Use Permit and Certificate of Appropriateness Application Z-12290, 2421 Creckwood Drive (Quasi- Judicial) (Riley) 1.00:55 Doug Riley, Associate Planner Mr. Riley gave the staff report regarding the Creekwood Guest House/Vacation Rental Conditional Use Permit and Certificate of Appropriateness Application Z-12290, 2421 Creekwood Drive. 1:10:27 Questions for Staff The Commission and staff discussed the review of similar situations and models, the amount of approved CUPs ofthis nature which there are none,turn over, the size of the lot, conformance to R-1 housing standards and running a vacation rental business. 1:19:03 Applicant Presentation Applicant Phil Sgamma gave the applicant presentation for the project. 1:22:43 Questions for applicant The Commission and applicant spoke regarding the rental agreement and conditions,how the conditions will be met and property transfer. Page 3 of 9 155 Minutes of the Bozeman City Commission,January 14,2013 1:25.55 Public Comment Mayor Becker opened public comment. 1.26:07 KimherIV Graham, Public comment Ms. Graham 22449 Creekwood Drive stated that there are new homes built all around the applicant's property. There are tenants in and out of there. This last summer the yard died. This may set a precedent for this area. Property management is at a minimum. She is concerned that the renters have dogs that wander, are not contained and do not pick up waste. 1:28:12 Ken Danhof.Public comment Mr. Danhof of 6570 Jackson Creek Road stated that this important investment for a young family . The unit next door has a negative impact and social impact. This is a commercial enterprise and it is in violation. 1:29:37 Keith Paterson,Public comment Mr. Paterson of 2270 Boylan Road stated that he agrees with what the lady before him spoke of. He feels the photo used for the presentation is misleading. He agrees that this should not be approved. 1:31:27 Public Comment Mayor Becker closed public comment. 1:31:31 Applicant rebuttal The applicant spoke regarding the trees on the property. He spoke regarding the need for a water system. He spoke regarding the dog issue and that he was not aware of the issues pertaining to them. 1:33:31 Commission Questions for staff The Commission and staff spoke regarding the change of use conveying with the sale along with the actions of the Home Owners Association. 1:35:04 Commission discussion The Commission discussed the need to hear from the Home Owners Association. 1.36:56 Motion to open and continue the public hearing of the application and directing staff to supply additional information in two weeks about whether the HOA has acted. It was moved by Cr. Mehl seconded by Cr. Taylor too en and continue the public hearing of the application and directing staff to supply additional information in two weeks about whether the HOA has acted. Page 4 of 9 156 Minutes of the Bozeman City Commission,January 14,,2013 1:37:17 Commission discussion on the Motion The Commission discussed the zoning of the area, what the zoning is suited for, the restrictions of the zoning, the need to look more at rentals, timing and input from the homeowners association. 1:51:19 Greg Sullivan, City Attorney Mr. Sullivan spoke regarding the legalities of this decision. 1:53:26 Continued Commission discussion 1:55:26 Friendly amendment to the Main Motion to extend the bearing 45 days or the earliest meeting after 45 days. Cr. Mehl posted a friendly amendment to the Main Motion to extend the hearing45 days or the earliest meeting after 45 days. Cr. Taylor aereed to the Friendly amendment. 1:56:36 Vote on the Motion to open and continue the public hearing of the application friendly amendment extending the hearing 45 days or the earliest meeting after 45 days, and directing staff to supply additional information in two weeks about whether the HOA has acted. Those voting Aye being Crs. Mehl, Andrus and Mayor Becker. Those voting No beim Cr. Taylor and Deputy Mayor Krauss. The motion passed 3-2. 1:57:33 2. Resolution No. 4426, Adopting the North Park Properties Concept Land Use Plan and Direction on the Future of the City-Owned North Park Property (Fontenot) 1:57:56 Brit Fontenot, Director of Economic Development Mr. Fontenot gave the presentation for Resolution No. 4426, Adopting the North Park Properties Concept Land Use Plan and Direction on the Future of the City-Owned North Park Property. 2:13:14 Commission discussion The Commission and the Staff discussed the types of uses, costs, grants, income studies,the timing of the appraisal, the state's perspective with the property,the time frame of action for the state, alternatives,timing of the preliminary engineering report, status and conditions of the property. 2:39:19 Public Comment Mayor Becker opened public comment. Page 5 of 9 157 Minutes of the Bozeman City Commission,January 14,2013 2:39:20 Jerry Pape, Public Comment Mr. Pape of 15 North 25th spoke regarding opportunities,the need to look at the bigger picture, packaging as marketing, buyer objectives, and a self sustaining cycle. 2:44:03 Public Comment closed Mayor Becker closed public comment. 2:44:35 Motion to approve Resolution 4426 adopting the North Park Properties concept land use plan. It was moved by Deputy Mayor Krauss, seconded by Cr. Andrus to approve Resolution 4426 adopting the North Park Properties concept land use plan. 2:44:54 Commission Discussion on the Motion The Commission discussed viable entryways into this property, packaging, the re-establishment of the Tax Increment Financing district, signage, phasing, the possibility of selling the property, moving forward with the preliminary engineering report, funding for the PER, and the City as a developer. 3:00:41 Vote on the Motion to approve Resolution 4426 adopting the North Park Properties concept land use plan. Those voting Ave being Deputy Mayor Krauss, Crs. Andrus, Taylor, Mehl and Mayor Becker. Those voting No being none. The motion passed 5-0. 3:01:00 Commission Discussion The Commission discussed the objectives. 3:03:07 Motion and Vote to instruct staff to come hack to the Commission with a memo and report on the suggested management structure of north park. It was moved by Cr. Mehl, seconded by Deputy Mayor Krauss to instruct staff to come back to the Commission with a memo and report on the suggested manamement structure of north park. Those voting Ave being Cr. Mehl, Deputy Mayor Krauss. Crs. Andrus, Taylor and Mayor Becker. Those votine No beine none. Page 6 of 9 158 Minutes of the Sozemon City Commission,January 14,2013 The motion passed 5-0. 3:03:41 Motion to continue with the planning and expense of signage, preliminary engineering report, TIF extension or other work pending platting and appraisal work. It was moved by Cr. Mehl, seconded by Deputy Mayor Krauss to continue with the planning and expense of signa-ae, preliminary engineering report, TIF extension or other work pending plattingand appraisal work. 3:04:03 Discussion on the Motion Discussion tools place regarding the timing ofthe appraisal and the tax increment financing district and income levels. 3:07:33 Vote on the Motion to continue with the planning and expense of signage, preliminary engineering report, TIF extension or other work pending platting and appraisal work. Those voting Aye being Cr. Mehl, Deputy Mayor Krauss, Crs. Andrus, Taylor and Mayor Becker. Those voting No beine none. The motion passed 5-0. 3:09:53 3. (Re)Appointments to the Bozeman Area Bicycle Advisory Board Brunckhorst) 3:10:22 Motion to appoint Kirk Ahlberg, Bill Cochran, Jason Delmue and Sam Haraldson to the Bozeman Area Bicycle Advisory Board. It was moved by Cr. Taylor, seconded by Cr. Andrus to appoint Kirk Ahlbcr-, Bill Cochran, Jason Delmue and Sam Haraldson to the Bozeman Area Bicycle Advisory Board. Those voting Aye being Crs. Taylor, Andrus, Mehl, Deputy Major Krauss and Mayor Becker. Those voting No being none, The motion passed 5-0. 3:11:13 Motion and Vote to appoint Nonnic Thompson to the Bozeman Area Bicycle Advisory Board. Page 7 of 9 159 Minutes ofthe Bozeman City Commission,January 14,2013 It was moved by Cr. Andrus seconded by Cr. Mehl to appoint Nonnie Thompson to the Bozeman Area Bicycle Advisory Board. Those votin2 Ave being Crs. Andrus Mehl Deputy Mayor Krauss and Mayor Becker. Cr. Taylor recused himself from the vote due to a possible perceived conflict of interest. Those voting no being none. The motion passed 4-0. 3:11:47 Motion to appoint Jen Petersen to the Bozeman Area Bicycle Advisory Board. It was moved by Cr. Taylor, seconded by Cr. Mehl to appoint Jen Petersen to the Bozeman Area Bicycle Advisory Board. Those voting Aye being Crs. Ta Ior Mehl Deputy Mayor Krauss Cr. Andrus and Mayor Becker. Those voting No being none. The motion passed 5-0. 3,12-254. Re-appointment to the Pedestrian and Traffic Safety Committee Brunckhorst) 3:12:27 Motion and Vote to re-appoint Gary Vodehnal to the Pedestrian and Traffic Safety Committee. It was move by Cr. Mehl, seconded by Deputy Mayor Krauss to re-appoint Gary Vodehnal to the Pedestrian and Traffic Safety Committee. Those voting Ave being Cr. Mehl, Deputy Mayor Krauss, Crs. Andrus, Taylor and Mayor Becker. Those voting No being none. The motion passed 5-0. 3:13:07 J. FYI/Discussion 3:13:16 1. Goal setting session A 1 p.m. start time will not work for Mayor Becker. A lengthy discussion took place regarding the location ofthis event. It will remain at City hall and begin at 2 p.m. 3:28:18 2. 2013 Legislative Session Update This will be a standing last Action Item for the next 3 months. Page 8 of 9 160 Minutes of the Bozeman City Commission,January 14,2013 3:29:56 3. Thank you to Cr. Andrus for tonight's chocolate cake! 3:30:18 4. Support letter of House Bill 146 regarding license fees for solid waste facilities. 3:32:35 5. Joint City/Town/County meeting in Belgrade, Friday, January 25th at noon Mackenzie River Pizza 3:32:38 6. Trustees for Community colleges Deputy Mayor Krauss spoke regarding other Montana mill levy's for community colleges and how it measures up here in Bozeman. Think about how to get this county wide. 3:34:04 K. Adjournment Mayor Becker adjourned the meeting at 9:02 p.m. Qa 42 . . Sean A. Becker, Mayor ATTEST: Stacy Ulme , C itojffoml w - QQ] --= PREPARE Y: Stacy UI en, M City Clerk Approved on Page 9 of 9 161 d, Commission Memorandum CO. REPORT TO: Honorable Mayor and City Commission FROM: Brit Fontenot, Economic Development Director SUBJECT: Public hearing to determine whether real property owned by the City of Bozeman, known as the North Park property, is needed for public use or that the public interest may be furthered by the sale of the property as provided for in §§ 2.06.880 through 2.06.910 of the Bozeman Municipal Code. (2/3 vote of Commission required) MEETING DATE: August 26, 2013 RECOMMENDATION: Conduct a public hearing and by a 2/3 vote of the Commission, determine that the city-owned portion of the North Park property is not needed for public use and that the public interest will be furthered by the sale of the property. PROPOSED MOTION: Having considered the information presented by staff, I hereby move to adopt the findings included in the staff memorandum and conclude the City-owned portion of the North Park property, described in Section II of the staff memo, is no longer neededfor public use and the public interest will be furthered by the sale of the property as providedfor in L 2.06.880 through 2.06.910 ofthe Bozeman Municipal Code and direct the City Manager to complete all steps necessary to negotiate a sale and transfer ofthe property and return to the Commission with an ordinance authorizing the City Manager to execute a Purchase and Sale Agreement for same. I. INTRODUCTION For a complete history of the North Park project please refer to the January 14 and May 13, 2013 staff memos to the City Commission. In January, 2013 the City Commission, via Resolution 4426, unanimously adopted the North Park Concept Land Use Plan (the Plan). Additionally the North Park project webpage contains a link to the adopted plan and additional North Park materials including the North Park 1 162 Marketing Brochure, Phase 1 Environmental Site Assessment and the North Park Economic Impact Study and Job Benefit Analysis. In May, 2013 the Commission authorized staff to prepare and publish a Request for Proposals (RFP) for the acquisition of professional realty services and authorized the North Park Realtor Selection Committee composed of EDC members and City staff (the Committee) to select a real estate broker to negotiate the sale of the property should the Commission make the determination that the North Park property is not needed for public use and that the public interest is furthered by the sale of the property. Both the Plan and the direction to engage a realtor were unanimously supported by the Commission. The Committee produced an RFP, reviewed the three proposals submitted and selected CBRE to represent the City in the sale of the North Park property. The City has not yet signed a listing agreement with CBRE. The City will not execute the listing_agreement until the Commission determines the City-owned portion of the North Park property is not needed for public use and the public interest will be furthered by the sale of the property. It is important to note that the Commission's determination that the North Park property is not needed for public use and the public interest is furthered by its sale is not the final decision on the actual sale of the property. The sale process will require additional step including the Commission's adoption of an ordinance approving a purchase and sale agreement with the corresponding opportunities for public involvement. II. THE NORTH PARK PROPERTY The North Park property was purchased in July 2003 for $3M dollars. The North Park property consists of approximately 85 acres of unimproved land zoned M-2 (manufacturing and industrial) and within the boundaries of an industrial tax increment finance, or TIF, district. Currently, the Industrial TIF District fund is experiencing a deficit of approximately $180,000. The legal description of the North Park property is: TRACTS IA, 2A, 3A & 4A OF COS 2153 LOCATED IN THE NW 1/a & NE 1/a OF SECTION 36, TOWNSHIP 1 SOUTH, RANGE 5 EAST, PRINCIPAL MERIDIAN MONTANA, CITY OF BOZEMAN, GALLATIN COUNTY, MOTANA. The North Park property is generally located within the Bozeman City limits, between Frontage Road (Highway 10) and Interstate 90 and interchanges at North 7th and North 19th Avenues and is proximate to Redwing Drive, Reeves Road and North 7th Avenue. Click here for a map of the North Park property generally showing the physical relationship between the City and State of Montana owned properties. Currently, public infrastructure is limited on the property. There is an absence of a road network, curbs, gutters, sidewalks and functional water and sewer services. Additionally, there are poor intersections for ingress and egress and limited connectivity to the existing street network. 2 163 III. MONTANA MUNICIPAL INTERLOCAL AUTHORITY SETTLEMENT On December 10, 2012 the Commission authorized the approval of a settlement with the Montana Municipal Interlocal Authority (MMIA) over coverage of a $3M judgment against the City regarding the City's purchase of the North Park property. The settlement requires the City reimburse MMIA in the amount of $2M over the next three fiscal years. The City Manager signed the agreement December 20, 2012. The City has made two payments to the MMIA totaling approximately$1.3M. The final payment of$675,000 is scheduled for July, 2014. IV. FINDINGS TO DETERMINE THE NORTH PARK PROPERTY CAN BE SOLD OR THAT THE SALE FURTHERS THE PUBLIC INTEREST Prior to finalizing a sale, the Commission must determine the North Park property is no longer necessary for the conduct of City business, or, that the public interest may be furthered by disposing of the property. The conclusions above are distinct. Therefore, for purposes of this memorandum, Commission findings are provided below. First, the North Park property has been identified in the past as a possible location for several City facilities; however, the property is no longer necessary for the conduct of the City's business for the following reasons: A. Solid Waste Transfer Station The original intent for the purchase of the North Park property in 2003 was for the future site of a solid waste transfer station. Due to rising project costs and other related issues, a transfer station was never constructed. Now, because of the City's current participation in the Gallatin Solid Waste Management District, the City has no current plans, or need, to construct such a facility. B. The Mandeville Subdivision Preliminary Plat On December 1, 2008 the City Commission held a public hearing to discuss the approval of the Mandeville Major Subdivision preliminaryplat, #08008. The meeting minutes are linked here. During the hearing, there was discussion and public comment regarding the original intent of the purchase of the North Park property for the location of a solid waste transfer station. It was explained that while the property was originally purchased for that purpose, the City had joined the Gallatin Solid Waste Management District and a transfer station on the North Park property was no longer necessary. The purpose of the preliminary plat therefore was primarily to create 22 lots for M-2 (manufacturing and industrial zoning district) development, rather than further consider development of the transfer station. Based upon that premise, the preliminary plat was approved by the Commission. In 2010, and again in 2012, the City approved extensions ofthe preliminary plat. Given the funds invested in the engineering and preliminary platting of the City-owned portion of the North Park properties, approximately $225,000, and despite the uncertainty of the 3 164 applicability of the existing preliminary plat design with the North Park design, the Mandeville Subdivision preliminary plat (File # P-0808) was extended for two years on April 12, 2012 in order to provide the maximum amount of flexibility available for the development of the property. The existing preliminary plat expires on April 6, 2014. It is clear that while a preliminary plat remains active on the property, the existence of the entitlement does not affect, nor is it directly relevant, to whether the property is necessary for the conduct of City business. C. Solid Waste Consolidation Station In July, 2013, in a presentation to the City Commission regarding the possibility of a consolidation station at the existing City landfill site, the North Park property was mentioned by members of the public and Commissioners as an alternative to the proposed landfill location. After discussions with Public Works Director Craig Woolard and Solid Waste Superintendent Kevin Handelin it became clear the cost to construct a consolidation station facility on the North Park property is not financially feasible given the amount of infrastructure and other necessary improvements required for the development of the North Park property and the costs of additional staffing required to operate such a facility if located separately from other solid waste operations. Additionally, use of the property as a publicly operated solid waste consolidation or transfer station is incompatible with the vision of the North Park property as a catalyst for private sector job creation and economic diversification and, in fact, would negatively impact the North Park properties for future development as identified in the Plan. As such, the North Park property is not needed for development of solid waste facilities. Director Woolard will be in attendance during this agenda item to answer any questions. D. Location of Future Fire Station 7 The 2006 Fire Protection Master Plan (see pages 131 — 134) recommends a future fire station, Station 7, be located near the intersection of North 7th Avenue and Flora Lane, as future growth and response times dictate. Any future annexations that may occur in this area will affect response times and thus the need for a station in this part of the City. However, the projected need for a fire station in this general area of Bozeman, and specifically when to construct it, is undetermined at this time but the need may arise at some point in the distant future. The Bozeman Fire Department currently operates three fire stations located on South Rouse Avenue, South 19th Avenue and Vaquero Parkway. Prior to the purchase of North Park property in 2003, the City did not own property in the general location recommended for future fire station 7. In order to provide for future expansion of the City's fire station network in this area of Bozeman, the Commission included Condition 5 in the April 6, 2009 Findings of Fact and Order (#P- 08008): Lot 11, or another lot suitable to the City of Bozeman Fire Department, shall be reserved for the site of a future fire station. Bozeman Fire Chief Jason Shrauger now indicates a need may exist for a station in the northeast area of Bozeman in the distant future; however, the Chief believes the majority of 4 165 growth in the City is currently occurring to the west and has affirmed that there are other sites in the northeast section of Bozeman that could accommodate a future fire station when the need arises. Chief Shrauger will be in attendance during this agenda item to answer any questions. At this time, it is clear the North Park property is not needed for the development of a future fire station. Finally, there are no other City purposes currently identified by City staff for which the North Park property may be used. Next, the sale of the North Park property furthers the public interest for the following reasons: 1.The North Park property, if developed as proposed in the Plan, furthers the City's goals of job creation and economic diversification as described in the Commission's 2013 — 2014 Priorities; 2.The aggregate costs to date, approximately $5.25M, of the North Park property are high including purchase price, costs of preliminary plat and the MMIA settlement, with very little return on this investment. The sale of the property would help recoup some portion of the investment made by the City over the past decade. Additional value, through private sector job creation and industry diversification, could be realized by the sale of the property; 3.The costs to the City to fund basic infrastructure to facilitate development is higher than the City is willing to invest to develop the property. According to the Plan, Phase I development is estimated at $5.4M. Phase I includes the majority of the City owned portion of the North Park property; 4.The Plan, through local research and data collection, establishes the market viability of developing the property. In addition to the Plan, the partnership has generated additional documents referenced in this memorandum. Through these documents, a great deal of value has been created for the North Park that, once the city-owned portion is sold, can be utilized to execute the development of the property; 5.There is both local and national interest in the sale or lease of the property for private development. That interest has been generated, primarily,by the Plan; 6.Current commercial real estate market trends demonstrate increasing values of commercial real estate throughout the Bozeman area; 7.Sale ofthe North Park property supports the City's desire to facilitate the development of the property without the negative perception that as property owner, the City may provide itself exemptions or variances to its own regulatory processes; 8.The City does not have the staff resources or expertise to develop the property without significant outside assistance; and 9.There are significant bureaucratic implications of creating an additional layer of quasi- governmental administration through the creation of a development authority structure to manage the sale or development of the property. In considering the above, Staff provides the following additional discussion in support of the determination that sale of the property furthers the public interest. Primarily, the objective of the Plan is to raise awareness of the economic development potential, in terms of job creation 5 166 and economic diversification, existing at the North Park properties. Additionally, an objective of the Plan is to demonstrate how governmental organizations and the private sector can work together to support a vision greater than any one partner organization. Also, Plan objectives include provision of locally supportable, market based economic analysis using local data, codes, standards and regulations, realistic infrastructure cost estimates and timelines through multiple phases and viable use patterns, all to facilitate informed decision making. Finally, given rapidly changing market conditions and increasing development costs, the Plan establishes a sense of urgency for the sale and development of the North Park. Throughout the project, selling all or part of the City-owned portion of the North Park property at anytime, conditionally or unconditionally, remained a viable consideration. In addition to the Plan, the City and the Department of Natural Resources and Conservation (the DNRC) partnership produced the following supporting material— all of which will be valuable to a purchaser: 1. North Park Properties Marketing Brochure; 2. North Park Phase 1 infrastructure improvements added to the Capital Improvements Plan or CIP, (CIP FY 14— 18, GF 185,p. 54); 3.Identification of capacity expanding, off-site improvements that may aid in the development of the North Park properties, i.e. intersection control device at the intersection of North 7th Avenue and Griffin Drive (CIP FY 14— 18, SIF 33, p. 157); 4.Completed of a Phase 1 Environmental Site Assessment; 5.Completed of a Economic Impact and Job Benefit Anal.; and 6. Preliminary Engineering Report (PER). CTA has started the work on the PER. Expected completion of the PER is the end of September, 2013. The Commission identified North Park as part of their number one 2012 —2013 Work- Plan goal via implementation of the adopted 2009 Economic Development Plan. In addition to these goals, the City identified several high growth potential sectors ideally suited for location in the North Park including manufacturing and fabrication, bio-science and bio-technology, high- technology, photonics/optics and the outdoor industry sector. It is these industries the City encourages and supports for the creation of new, higher paying and skilled jobs which add diversity to the local and regional economies. The North Park property represents a physical location where these types of economic activities can be encouraged and supported. In addition, the development of the North Park property represents an important piece of the City's economic development strategy of working in cooperation with other economic development projects and agencies such as the MSU Innovation Campus, Gallatin College, the Prospera Business Network and the Northern Rocky Mountain Economic Development District. Sector support and development, especially in photonics/optics and the outdoor industry is in accordance with the City's funded FY 14 economic development initiatives. Next, the sale of the property is in the public interest because the partnership that existed with DNRC to create the Plan could still exist with a private purchaser and developer. In the early stages of the project (2011) it became clear that the City and the State of Montana, through the DNRC, would benefit by working collaboratively on the North Park project. Both organizations agree on the overall vision of the North Park project as a place where job creating 6 167 and industry diversifying businesses can come to start, grow or relocate operations adding value to the property, surrounding properties, the community and the region. Each entity's property has inherent advantages and disadvantages for development in terms of size, location, land features (grade, creek, etc.), ingress and egress and infrastructure. When development is planned separately, many of the inherent disadvantages remain or are exacerbated. However, when jointly planned and developed, while certain disadvantages may remain, the overall benefit of working in cooperation with the DNRC on North Park mitigates some many of the disadvantages. This proven partnership can continue with a private owner and may, in fact, result in more timely and cost effective development of the property. As such, once sold, the City will evolve its role from property owner and DNRC partner to that of development facilitator to work with the new property owner and the DNRC to explore and encourage a new partnership to further the North Parkug iding vision of the North Park as a catalystjob creation and industry diversification. V. UNRESOLVED ISSUES Sale of the property to a private owner has risks in terms of the fulfillment of the vision through implementation of the North Park Plan. The City Commission determined that the North Park property should be a catalyst for job creation and industry diversification in furtherance of the City's broad economic development strategy. The City may find a buyer for the City-owned portion of the North Park properties that believes in the vision created by the City and the DNRC and the data supporting that vision, but there is no certainty that development will come to fruition in the manner called for by the Plan. Despite the effort at creating a vision for the North Park properties, a buyer may not see the North Park as an economic development catalyst and may not share the City's vision for North Park as a stimulator to economic growth. There is a risk that with a new owner the property remains undeveloped, underdeveloped, or that the property develops in a manner inconsistent with the City's economic development goals. Considering the above, the only way to mitigate that risk is to place binding expectations on the buyer for the development of the City-owned portion of the North Park property. The Commission should carefully consider the pros and cons of a restrictive buy-sell agreement as opposed to selling the property unconditionally while encouraging and supporting the use of the Plan and associated documents as a framework for development. Staff recommends the Commission refrain from imposing direct obligations on a purchaser to develop the property in compliance with the Plan as this may negatively impact interest in purchasing the property. Alternatively, staff pledges to remain proactively involved with the new owner, creating a conduit to the DNRC to facilitate development of the property in conformance with the Plan. VI. ALTERNATIVES As determined by the Commission. 168 VII. FISCAL EFFECTS The North Park property was purchased in 2003 for $3M dollars. Pursuant to the requirements of the Bozeman Municipal Code, the property must be appraised prior to sale and cannot be sold for less than 90% of appraised value. Upon sale, because the City is using a real estate broker, a commission of 6% will be paid. The City may have minimal additional expenses related to the transfer including title insurance, recording fees, and possibly expenses related to outside counsel. The City invested approximately$225,000 in development of the preliminary plat. The City receives revenue from an agricultural lease and cell tower lease on the property. In 2012, the City obtained $5,148 from the agricultural lease and $7,260 from the cell tower lease. Should the City sell the property, these revenues will no longer be realized. Attachments: None - all supporting documentation is hyperlinked in this memo. Report prepared on August 15, 2013 8 169 s¢ rrH Co' THE CITY COMMISSION MEETING OF BOZEMAN,MONTANA MINUTES Monday, August 26,2013 A. 06:04:14 Piv] Ca11 to Order—6 p.m.—Commission Room, City Hall, 121 North Rouse Deputy Mayor- Jeff Krauss: Present Mayor- Sean Becker: Present Commissioner- Carson Taylor: Present Commissioner- Chris Mehl: Present Commissioner- Cynthia Andrus:Absent Staff Present: City Manager Chris Kukulski,City Attorney Greg Sullivan and City Clerk Stacy Ulmen. B. 06:04:28 PM Pledge of Allegiance and a Moment of Silence C. 06:05:03 PM Changes to the Agenda Mayor Becker asked City Manager Chris Kukulski if there were any changes to the Agenda, Mr.Kukulski asked that an additional Public Service Announcement be added and that Action Item 6 be moved to Action Item 1. The Commission agreed to the changes. D. 06:05:34 PM Public Service Announcements 1.06:05:57 PM Soil Gas Meeting,Tuesday,August 27`l'at 6 p.m., Holiday Inn on Baxter lane(Kukulski) 2. 06:06:24 PM City Offices will be closed and the City Commission will not meet on September 2nd in observance of Labor Day (Ulmen) 3 06:07:39 PM Commission Meeting Software Solution Highlights(Ulmer) E. 06:13:06 I'M Authorize Absence of Cr.Andrus 06:13:07 PM Motion and Vote to approve the absence of Cr. Andrus. Commissioner- Carson Taylor: Motion Deput_Mayor-Jeff Krauss: 2nd Deputy Mayor-Jeff Krauss: Approve Page I of 14 170 Bo4ent an City C'ouialission Hinules,Augausl 26,2013 Mayor- Sean Becker: Approve Commissioner- Carson Ta lor: Approve Commissioner- Chris Mehl: Approve Commissioner- Cynthia Andrus: Absent F. 06:13:24 PM Minutes—August 5,2013 and August 12,2013 IL'4- 06:13:27 PM Motion and Vote to approve the minutes from August 5,2013 and August 12,2013 as submitted. Deputy Mayor-Jeff Krauss: Motion Commissioner- Chris Mehl: 2nd Deputy Mayor-Jeff Krauss: Approve Mayor- Sean Becker:Approve Commissioner- Carson Taylor: Approve Commissioner- Chris Mehl: Approve Commissioner- Cynthia Andrus: Absent G. 06:13:37 PM Consent 1. Authorize Payment of Accounts Payable Claims '77-op (LaMeres) 2. Approve a Liquor License for the sale of Liquor at 1320 North 19th Avenue for The Wasabi Steakhouse 174' 3 (Neibauer) 3. Approve Amendment 1 to the Professional Services Agreement for the East Peach Street Rehabilitation Project with Morrison-Maierle 7 tZ Johnson) 4. Approve Amendment to the Professional Services Agreement with Tetra Tech for ongoing Post-Closure Soil Gas Investigation at the Story Mill Landfill '7<--3 (Johnson) 5. Approve Resolution 4466,approving Change Order 4 for the llyalite/Sourdough Water Treatment Plant Replacement Project M1_40 Murray) 6. Approve Resolution 4467,approving Change Order 1 for the 2013 Water Renovations Project with Om;dahl Excavation Ma (Murray) 7. Approve Resolution 4446,a resolution Superseding Resolutions 3030 and 3432 and Establishing a Fee Schedule for Copies and Research of Public Records and Electronic Public Records,Establishing Procedures for Requesting Public:Records and for Implementation and Collection ofthe Fee Schedule `?=p (Ulmen) 8. Appoint Commissioners Taylor and Andrus to review Depositary Bonds and Pledged Securities as ofJune 30,2013 m'4z (Rosenberry) 9. Accept the Building Division Monthly Report for July 2013 M4 (Risk) 06:13:52 PM Public Comment on Consent agenda. Page 2 of 14 171 Bozeman Ciiy Commlisstort Afrr uies,Augusi 26,2013 Mayor Becker opened public comment. No person commented. Mayor Becker closed public comment. 06:13:57 PM Motion and Vote to approve Consent items E. 1-9 as submitted. Commissioner- Chris Mehl: Motion Commissioner- Carson 'Taylor. 2nd Deputy Mayor-Jeff Krauss: Approve Mayor- Scan Becker: Approve Commissioner-Carson Taylor: Approve Commissioner- Chris Mehl: Approve Commissioner- Cynthia Andrus: Absent H. 06:14:13 PM Public Comment 06:14:32 PM Jerry Pape,Public Comment Mr.Pape stated that he is thankful to the Commission about money spent well on increasing technology. Spoke regarding recruiting business. 06:18:03 PM Jay Shea Public Comment Mr. Shea stated that he has a concern ofnoise and language used at some events that have taken place at the Bogert Park recently. 06:20:02 PM Jill.iamilton,Public Contment Ms. Ilamilton spoke regarding her complaints related to Bogert Park,venues. "There is a growing problem,concern ofemergency access, events being held Tuesday-Saturday and that it has become too much. 06:23:18 PM TerrV_Jackson,Puhlic Comment Mr.Jackson spoke regarding Action Item 5 and the flood plain. 06:25:43 PM Public Comment closed Mayor Becker closed public comment. 1. 06:25:45 PM Action Items 1, 06:25:48 PM Public Hearing For a Sign Exemption from the Bozeman School District,Application 213157 '4= (Riley) (Item movedfrom item b to item 1 during the Changes ofthe Agenda portion) 06:26:11 PM Staff Presentation Doug Riley Staff Planner gave the Staff Presentation regarding the Public Hearing for a Sign Exemption from the Bozeman School District,Application 213157, Page 3of14 172 Liazcrrrrrn Cill'Commission Minutes,Artgrrsl 26,2013 06:27:53 PM Commission Questions for Staff The Commission and Staff discussed processes of these types of public hearings and public forum. 06:2$:51 PM Applicant Presentation Superintendent of Schools Rob Watson and Principal Gordon Grissom gave the Applicant presentation regarding the Public Hearing for a Sign Exemption from the Boveman School District,Application Zt3157. 06:32:47 PM Commission Questions for Applicant The Commission and the applicant discussed the School's public hearing efforts, funding for the sign,speed of adding items to the sign,types of items that will be placed on the sign,scrolling and advertising on the sign and the fact that the School is potentially assuming a risk. 06:44:32 PM Public Comment Mayor Becker opened public comment. 06:44:52 PM Stephanie Dubravae Public Comment Ms. Dubravac spoke regarding her concern of safety risks with parents reading an electronic signs while driving. She urged a website to communicate. 06:4$:07 PM K"IV Wiseman,Public Comment Mr. Wiseman stated that he was on the board that approved the rules for signs and spoke regarding impacts. He has concerns that these will be in front ofall schools eventually. 06:49:17 PM Erin Gaft,Public Comment Ms. Goft stated that she was on the group for the sign and the intent is to put a message out and it remains stagnant. She added that it will be similar to what is already in place. 06:50:58 PM Jerry Pape,Public Comment Mr. Pape stated that this can be done in a terrible way,but urged the Commission to find a middle way. He added that there has got to be a way to update the sign code for the use oftechnology. 06:52:41 PM Public Comment closed Mayor Becker closed public comment. 06:52:59 PM Applicant Follow up Mr. Watson stated that there is a difference in the type of messaging between a high school and an elementary school. 06:53:52 PM Commission comments The Commission spoke regarding scrolling,the sign at the High School,the Commission's authority,advertising,the need for the School to get along with the neighbors,cuff offs and light pollution. Page 4 of 14 173 Bozeman City•Commkvlon 11 hooles,August 26,2013 No motion required. The City Commission receives the sign permil and conducts a public hearing©ii the exempt ©n the School District is claiming under MC.A. Section 76- 2-402. (Other than conducting a public hearing, no official motion is required by the City Commission). 2. 06:59:19 PM Tic Vote decision from August 12th Action item regarding Recommendations to Meet Current and Future Community Aquatic Needs, and further Discussion/Action on this item opened and continuedfrom August 121h) (Overton) 06:59:54 PM Staff Presentation Mitch Overton,Recreation and Parks Director gave an update on the splash pad development at the Bozeman Ponds, He spoke regarding Montana Environmental Policy Act Process(MEPA). 07:01:13 PM Commission Questions for Staff The Staff and Commission discussed MEPA and the timeframe changes. 07:01:40 PM Point of Order Deputy Mayor Krauss called for a point oforder because new information was received at this hearing. 07:02:05 PM Mayor Becker Explanation on his upcoming'vote. 07:03:15 PM Public Comment Mayor Becker opened public comment. No person commented. Mayor Becker closed public comment. 07:07:01 PM Vote by Mayor Becker Mayor Becker voted No cin the Motion made by Cr. Taylor and seconded by Cr. Mehl that having r_eviewed staff recommendations and considered public comment, proceed-with the design and build of a splash pact amenity at the Bozeman Ponds and allocate$225,000 from the fiscal year 2014 Budget, Therefore,the motion fails, 07:07:22 PM Commission Discussion The Commission discussed the need to explore different locations,partnerships and the need to set money aside and put it into a reserve account. Page 5 of 14 174 Rose rrarr Gtr Comnrissrar Affitudes,.4ugust 26,2013 07:08:43 PM Motion to allocate $225,000 from the fiscal year 2014 budget for a splash park to go to the Reserve Fuad. Commissioner-Chris Mehl: Motion Deputy Mayor-Jeff Krauss:2nd Commission Discussion on the Motion The Commission discussed moving the money into possibly the capital improvement reserve fund,pool design, location determination, motivation,upcoming decisions and the need for partnerships. 07:14:30 PM Public Comment: Mayor Becker opened public comment No person commented Mayor Becker closed public comment. 07:14:55 PM Commission Discussion 07:16:53 PM Vote on the Motion to allocate $225,000 from the fiscal year 2014 budget for a splash park to go to the Reserve Fund. Commissioner-Chris Mehl: Motion Deputy Magor-JeffKrauss: 2nd Deputy Mayor-Jeff Krauss: Approve Mayor- Sean Becker: Approve Commissioner-Carson Taylor:Approve Commissioner-Chris Mehl: Approve Commissioner-C)mthia Andrus: Absent 3. 07:17:47 PM Resolution 4457, Establishing Tree Maintenance District Assessments for Fiscal Year 2014,making the Assessment Rate$0.44225 per Assessable Square Foot,which is the same as Fiscal Year 2013 7G Rosenberry) 07:17:39 PM Deputy Mayor Krauss recused himself from this item. 07:17:45 PM Staff Presentation Anna Rosenberry, Director of Administrative Services gave the staffpresentation regarding Resolution 4457, Establishing Tree Maintenance District Assessments for Fiscal Year 2014,making the Assessment Rate$4.04225 per Assessable 'Square Foot, which is the same as Fiscal Year 2413. 07:19:20 PM Public Comment Mayor Becker opened public comment, Page 6 of 14 175 Bowman Cihy Cominissiort.41hij es,August 36,2013 Dave Osterman Public Comment Mr. Osterman stated that his Assessment is $2,500 per year on his trees and they have never been trimmed. He would like to knew what the budget is and also where the funds collected from the assessment go. Jerry Pape,Public Comment Mr. Pape spoke regarding Hawthorn boulevard.trees. He stated that they are unlike other trees and could become dangerous. 07:22:10 PM Public Comment closed Mayor Hecker closed public comment. 07:24:15 PM Commission Questions for Staff. The Commission spoke regarding Cap amounts. 07:24:34 PM Motions to approve Commission Resolution No.4457,establishing a Tree Maintenance District Assessments for Fiscal Year 2014,making the assessment rate 50.00225 per assessable square foot,which is the same as fiscal year 2013. Commissioner-Carson"lLaylor: Motion Commissioner-Chris Mehl: 2nd 07:25:08 PM Commission discussion 07:27.17 PM Vote on the Motion to approve Commission Resolution No. 4457, establishing a Tree Maintenance District Assessments for Fiscal Year 2014,making the assessment rate$0.00225 per assessable square foot,which is the same as fiscal year 2013. Conunissioner- Carson Taylor: Motion Commissioner -Chris Mehl: 2nd Deputy Mayor-Jeff Krauss:Alastair Ma or- Sean BeckerApproverove Commissioner- Carson Taylor- AArove Commissioner Chris Mehl: Approve Commissioner- Cynthia Andrus: Absent 4, 07:27:3 8 PM Zone Map Amendment changing Zoning from B-2 Community Business District)to B-3 (Central Business District)to the property addressed as 407 'West Main Street,Application 713141 Harringtons/PAB,LLC "A;a(Brekke) Page 7 of 14 176 Brt errrrrn City,Cammi+sion Minutes,August 26,2013 07:29:45 PM Tom Rogers,City Planner Mr. Rogers gave the staffpresentation regarding Zone Map Amendment changing Zoning from B-2 (Community Business District)to B-3 (Central Business District)to the property addressed as 407 West Main Street,Application 213141 Harringtons/PAB, LLC 07:33:08 PM.Applicant Presentation The Applicant stated that they were available for questions. 07:33:43 PM Public Comment Mayor Becker opened public comment. No person commented, Mayor Becker closed public comment. 07:33:55 PM Motion that Based upon the analysis and findings in the staff report, and after consideration of public comment and the recommendation of the Zoning Commission,I move to approve the Harringtons/PAB, LLC zone map amendment request to change approximately 0.25 acres of property zoned B-2(Community Business District)to B-3 (Central Business District)with the two recommended contingencies listed on page 2 of the staff report and direct staff to prepare an ordinance for the map amendment Deputy Mayor -Jeff Krauss: Motion Commissioner- +Chris Mehl: 2nd 07:34:43 PM Commission Discussion The Commission discussed zoning and this being an advantage to the downtown core. 07:37:48 PM Vote on the Motion to approve the Harringtons/PAr.;B,LLC zone map amendment request to change approximately 0.25 acres of property zoned B-2 Community Business District) to B-3 (Central Business District)with the two recommended contingencies listed on page 2 of the staff report and direct staff to prepare an ordinance for the map amendment.. Deputy Mayor-Jeff Krauss: Motion Commissioner- Chris Mehl: 2nd Deputy Mayor-Jeff Krauss:-Approve Mayor-Sean Becker: Approve Commissioner- Carson Taylor. Approve Commissioner- Chris Mehl: Approve Commissioner- Cynthia Andrus:Absent 5. 07:37:59 PM Zone Map Amendment to rezone existing R-4 (Residential High Density)to B--2 (Community Business)located generally North of Fest Babcock between 9th and 10th Avenues,Application Z13139 Community Food Coop M" (Rogers) Page S of 14 177 Bozeman Carr Cormnission Minutes..4ugust 26,2013 07.38.27 PM Staff Presentation Mr. Rogers gave the staff presentation regarding Zone Map Amendment to rezone existing R-4(Residential High Density)to B-2(Community Business)located generally North of West Babcock.between 9th and 14th Avenues,Application Z 13139 Community Food Coop . 07:43:35 PM Applicant Presentation The Applicant gave the presentation and was available for questions. 07:44:43 PM.Public Comment Mayor Becker opened public comment. No person commented. Mayor Becker closed public comment. 07:44:53 PM Motion that having reviewed the application materials,considered public comment,and considered all of the information presented,I hereby adopt the findings presented in the staff report for application Z-13139 and Zoning Commission Resolution#Z-13139,and move to approve the rezoning with contingencies outlined in the staff report,and direct Staff to prepare the required implementing ordinance. Commissioner-Chris Mehl: Motion Commissioner-+Carson Taylor: 2nd 07:45:21 PM Commission Discussion on the Motion 07:49:41 PM Vote on:the Motion that having reviewed the application materials, considered public comment, and considered all of the information presented, I hereby adopt the findings presented in the staff report for application Z-13139 and Zoning Commission Resolution#7,13139,and move to approve the rezoning with contingencies outlined in the staff report,and direct Staff to prepare the required implementing ordinance, Commissioner- Chris Mehl: Motion Commissioner- Carson Taylor: 2nd Deputy Mayor-Jeff Krauss: Approve Mayor- Sean Becker: Approve Commissioner-Carson Taylor: Approve Commissioner_- Cly-is Mehl: Approve Commissioner-Cynthia Andrus: Absent 07:49:53 PM Break Mayor Becker declared a break Page 9 of 14 178 Bozeman Gi r Commisvioaa libinles.August A.201i 08:00:44 PM Meeting Called Back to order Mayor Becker called the meeting back to order. 6. 08:00:52 PM;Creation of five(5) Single Household Residential Lots with Variance from Wetland Setbacks,generally located North of Kagy Boulevard between Bozeman Creek and Sourdough Road,Application P13020 The Kagy Garden Minor Subdivision fi<= (Quasi-Judicial) Rogers) 08:01:26 PM Staff Presentation Mr. Rogers gave the Staff presentation regarding the Creation of five(5) Single Household Residential Lots with Variance from Wetland Setbacks, generally located North of Kagy Boulevard between Bozeman Creek and Sourdough Road,Application P13020 The Nagy Garden Minor Subdivision. 08:17:56 PM Commission Questions City Attorney,Greg Sullivan spoke regarding the Wetlands Review board recommendation. It is not a formal recommendation because there was not a quorum. The Commission and staff discussed setbacks,flooding, storm water,water flow, swamp areas, signalization,trail easements and detention ponds. 08:32:11 PM Marr Chandler,Applicant presentation Mr. Chandler spoke regarding the pit run, and then building up to the foundation level. Grade beams could be used. Spoke wlMDT and access location. 08:33:39 PM Commission Questions for Applicant The Commission and applicant discussed setbacks and erosion concerns. 08:35:21 PM Public Comment Mayor Becker opened public comment. 08:35:31 PM Doris Heckerman,Public Comment Ms. Heckerman stated that over the years, she has been fighting to keep the property open space. She spoke regarding the past of building up the property and the drainage issue on Kagy. 08:40:331'M BrettPoiier Public Comment Mr. Potter spoke regarding the newly revised project and stated that it is a nice project for the neighborhood. He spoke regarding the need to contain the water before it gets to the creek. This is a project that helps do that. 08:43:45 PM Terry Jackson,Public Comment Mr. Jackson spoke regarding this being a land issue. IIe stated that he was not contacted regarding a trail. He had questions about the property being surveyed. Page 10 of 14 179 3U$c'71t[lft Cr'dy C'171il idnion Wnufe5,Augial 26,2013 08:47:28 PM To»r_+Clark,Public Comment Mr. Clark stated that he is one of the owners and that this is a difficult property. He spoke regarding it being an infill property and that they are being sensitive to the area, 08:49:20 PM Public Comment Closed Mayor Becker closed public comment. 08:49:25 PM Applicant response The applicant spoke regarding retention ponds and a design to keep runoff of the property. 08:50:19 PM Commission Questions for Applicant. The Commission spoke regarding prior closures ofKagy Street because of flooding,and the status of surveying the property, 08.52:33 PM Motion that having reviewed the application materials,considered public comment,and the staff analysis,I hereby adopt the findings presented in the staff report for file#P-13020 and move to approve the preliminary plat application for the Kagy Garden Minor Subdivision with variance from wetland setbacks authorizing the subdivision of 2.7172-acres into 5 lots for single household construction subject to the conditions listed in staff report. Commissioner- Carson Taylor: Motion Deputy Mayor-Jeff Krauss: 2nd 08:53:08 PM Commission discussion on the Motion. 09:03:16 PM Vote on the Motion that that having reviewed the application materials,considered public comment,and the staff analysis,I hereby adopt the findings presented in the staff report for file#P-134120 and move to approve the preliminary plat application for the Nagy Garden, !'Minor'Subdivision with variance from wetland setbacks authorizing the subdivision of 2.7172-acres into 5 lots for single household construction subject to the conditions listed in staff report. Commissioner_-_+C_arson_Taylor: Motion Deputy Mayor-Jeff Krauss: 2nd Deputy Mayor-Jeff Krauss: Approve Mayor- Sean Becker: Approve Commissioner-Carson Taylor: Approve Commissioner- Chris Mehl: Approve Commissioner - Cynthia Andrus: Absent 7. 09:03:30 PM Public Hearing to determine whether real property owned by the City of Bozeman, known as the North Park property,is needed for Public use or that the Public interest may be furthered by the sale of the Page 11 of 14 180 Bole+nun City Commission Minutes.Augusf 26.2013 property as provided for in §§ 2.06.880 through 2.06.910 ofthe Bozeman Municipal Code M 4= (2/3 vole ofConinri.ssion required)(Fontenot) 09:04:38 PM StaffPresentation Brit Fontenot, Economic Director gave the staff presentation regarding the Public Hearing to determine whether real property owned by the City ofBozeman,known as the North Park property, is needed for Public use or that the Public interest may be furthered by the sale of the property as provided for in §§2.06.880 through 2.06.910 ofthe Bozeman Municipal Code 09:16:36 PM Commission Questions for Staff The Commission and staffdiscussed the Montana Department of Transportation's position,the next steps including the need of getting a marketing plan into place,a preliminary engineering report,time frames,source of funds to purchase the property and which fund the money would go into upon the sale, the time line of listing contract and the need for multiple appraisals. 09:25:02 PM Public Comment Peter Rurbeimer,Public Comment_ Mr. Rughheimer spoke regarding locations of a transfer station. The property is a Good place for it in an industrial area. He urged that the Commission subdivide a portion of the property for a transfer station. 09:2.7:51 PM Public Comment closed Mayor Becker closed public comment. 019:27:56 PM Motion that having considered the information presented by staff,I hereby move to adopt the findings included in the staff memorandum and conclude the City-owned portion of the North Park property,described in Section II of the staff memo,is no longer needed for public use and the public interest will be furthered by the sale of the property as provided for in §§2.06.880 through 2.06.910 of the Bozeman Municipal Code and direct the City Manager to complete all steps necessary to negotiate a sale and transfer of the property and return to the Commission with an ordinance authorizing the City Manager to execute a Purchase and Sale Agreement for same. Deputy Mayor-Jeff Krauss: Motion Commissioner- Chris Mehl:2nd 09:28:43 PM Commission Discussion on the Motion The Commission discussed a transfer station,the interest ofthe State,zoning,the Development ofthe parcels,and the need to have progress reports from the realtor on a regular basis. Page 12 of 14 181 Do.-errrrru GO,Commission Affrrrdes,August 26,2073 49:46:21 PM Vote on the Motion that Having;considered the information presented by staff,I hereby move to adopt the findings included in the staff memorandum and conclude the City-owned portion of the North Park property,described in Section 1I of the staff memo,is no longer needed for public use and the public interest will be furthered by the sale of the property as provided for in §§2.06.880 through 2.06.910 of the Bozeman Municipal Code and direct the City Manager to complete all steps necessary to negotiate a sale and transfer of the property and return to the Commission with an ordinance authorizing the City Manager to execute a Purchase and Sale Agreement for same. Deputy Malyor-Jeff Krauss:Motion Commissioner-Chris Mehl: 2"d Deputy Mayor-Jeff Krauss: AUroy°e Mayor- Sean Becker:Approve Commissioner-Carson Taylor: Approve Commissioner-Chris Mehl: Approve Commissioner- Cynthia Andrus: Absent 8. 44:46:36 PM Reappointment to the Northeast Urban Renewal Board Brunckhorst) 49:46:41 PM Motion and Vote to reappoint Jeanne Wesley-Wiese to the Northeast Urban Renewal Board. Commissioner—Chris Mehl: Motion Commissioner—Carson Taylor: 2nd De a Mayor-Jeff Krauss: Approve Mayor- Sean Becker: Approve Commissioner-Carson Taylor:Approve Commissioner-Chris Mehl: Approve Commissioner-Cynthia Andrus: Absent 9. 43:46:54 PM Appointment to the Recreation and Parks Advisory Board "'4 (Brunckhorst) 49:46:56 PM Motion and Vote to appoint Stephanie Gray to the Recreation and Parks Advisory Board. Commissioner—Carson Taylor:Motion Deputy Mayor—Jeff Krauss: 2°d Deputy Mayor-Jeff Krauss:Anproye Mayor- Sean Becker:Approve Cormnissioner- Carson Taylor: Approve Page 13 of 14 182 Bozentan Cil,C01juatission Minutes,Aifgus7 26,2013 Commissioner-Chris Mehl: Approve Commissioner-Cynthia Andrus: Absent 10. 09:47:08 PM Appointment to the Tree Advisory Board a Brunckhorst) 09:47:11 PM Motion and Vote to appoint Elisa Boyd to the Tree Advisory Board. De ut Ma or-Jeff Krauss; Motion Commissioner—Chris Mehl: 21)d Mayor- Sean Becker: Approve Commissioner- Carson Taylor:Approve Commissioner- Chris Mehl: Approve Deputy Mayor-.Teff Krauss: Approve Commissioner_ Cynthia Andrus: Absent J. 09:47:38 PM FYI/Discussion 09:47:45 PM 1. 8"'Elementary School opening 09:48:43 PM 2. Building division report-online 09:51:15 PM 3. Reminder of Soil gas meeting 09:51:30 PM 4. Bus Tour on September 23 d!Waved to 4 p.m. start time. 09:53:28 PM 5. September 30"'meeting is a-go? 09:54:17 PM 6. Bogert Park Complaints made during public comment. K. 09:55:23 PM Adjournment Mayor Becker adjourned the meeting at 9:55 p.m. OF Sean A. Becker,Mayor ATTEST. a 74,4 T1 Stacy Ulmclerk . r J 7 i e PREPARED BY.! Stacy UtinenCity Clerk Approved on ml LJ Page 14 of 14 183 Exclusive Sales Listing Agreement Cffmff 1. In consideration of the listing for safe of the real property hereinafter described (the Property") by CBRE, INC. ("Broker"), and Broker's agreement to market the Property actively and diligently with a goal of effecting a sale of same as expeditiously as possible, the City of Bozeman, a self-governing municipal government ("Owner"), hereby grants to Broker the exclusive right to sell the Property for a period commencing August 30t11, 2013 and ending midnight August 29th2014 (the "Initial Term" and together with any extension(s), the "Term"), at a price of F. , upon the following terms_ at sellers sole discretion. If the Property remains unsold at the end of the Initial Term, Owner may, in its discretion extend the Initial Term an additional period of one (1) year ending midnight August 29, 2015. Owner shall not unreasonably withhold its consent to such extension. The Property is situated in the city of Bozeman, county of Gallatin, state of Montana, and is further described as located north of Interstate 90 between the North 7th Street and North 19th Street Interstate 90 interchanges and include parcels: S36, T01 S, R05 E, C.O.S. 2153, PARCEL. TRACT 1-A ACRES 22.223: S36 T01 S R05 E C.O.S. 2153 PARCEL TRACT 2-A ACRES 10.002• $36 T01 S R05 E G.Q.S. 2153 PARCEL TRACT 3-A, ACRES 2.4.761; S36, T01 S, R05 E, C.U.S. 2153, PARCEL. TRACT 4-A. ACRES 28.36. References herein to the Property shall be understood to include portions of the Property. 2. Owner agrees to pay Broker a sales commission in accordance with Broker's Schedule of Sale and Lease Commissions (the "Schedule"), a copy of which is executed by Owner and Broker, attached hereto and hereby made a part hereof. This commission shall be earned for services rendered if, during the Term, the Property is sold to a purchaser procured by Broker, Owner or anyone else, subject to any exclusions set forth in the Schedule. Broker is authorized to cooperate and to share its commission with other licensed real estate brokers, regardless of whether said brokers represent prospective purchasers or act as Broker's subagents. 3. As used in this Agreement the term "sale" shall include an exchange of the Property, and also the granting of an option to purchase the Property. Owner agrees that in the event such an option is granted, Owner shall pay Broker a sales commission in accordance with the Schedule on the price paid for the option and for any extensions thereof. This commission shall be paid upon receipt by Owner of any such payment(s). In the event such an option is exercised, whether during the Term or thereafter, Owner shall also pay Broker a sales commission on the gross sales price of the Property in accordance with the Schedule. Notwithstanding the foregoing, to the extent that all or part of the price paid for the option or any extension thereof is applied to the sales price of the Property, then any commission previously paid by Owner to Broker on account of such option payments shall be credited against the commission payable to Broker on account of the exercise of that option. 4. Owner further agrees to pay Broker a commission in accordance with the Schedule if, within ninety (90) calendar days after the earlier of the expiration of the Term or termination of this Agreement, the Property is sold to, or Owner enters into a contract of sale of the Property with, or negotiations continue, resume or commence and thereafter continue leading to a sale of the Property to any person or entity (including hislherlits successors, assigns or affiliates) with whom Broker has negotiated (either directly or through another broker or agent) or to whom the Property has been submitted prior to the expiration or termination of the Term. Broker is authorized to continue negotiations with such persons or entities. 184 4 1 Broker agrees to submit a list of such persons or entities to Owner no later than fifteen (15) calendar days following the expiration or termination of the Term, provided, however, that if a written offer has been submitted then it shall not be necessary to include the offeror's name on the list. OWNER FURTHER AGREES THAT (a) IF A LEASE OF THE PROPERTY IS ENTERED INTO DURING THE TERM TO ANYONE, OR (b) iF, WITHIN ONE HUNDRED TWENTY 920) CALENDAR DAYS AFTER THE EXPIRATION OF THE TERM OR TERMINATION OF THIS AGREEMENT, THE PROPERTY IS LEASED TO, OR OWNER ENTERS INTO A CONTRACT TO LEASE THE PROPERTY WITH, OR NEGOTIATIONS CONTINUE, RESUME OR COMMENCE AND THEREAFTER CONTINUE LEADING TO THE LEASE OF THE PROPERTY TO ANY PERSON OR ENTITY AS DESCRIBED IN PARAGRAPH .4 ABOVE, OWNER SHALL PAY BROKER A LEASING COMMISSION IN ACCORDANCE WITH THE SCHEDULE. Notwithstanding the foregoing, Broker shall not be entitled to payment of a commission if Owner enters into leases (or renewals or extensions of existing leases) or conveys easements or other similar property rights for agricultural use of the Property, cell tower and other communication facility sites, siting of signs, installation of utilities, and rights of way. 6. Commissions shall be payable hereunder at closing of escrow, recordation of deed, or lease execution. 7. Unless otherwise provided herein, the terms of sale shall be, at the option of the purchaser, either cash or cash to any existing loan. Any offer may contain normal and customary contingencies such as those relating to the condition of the Property, title report. and timing of closing. In any contract for the sale or lease of the Property, Owner may condition its obligation to perform upon obtaining all necessary governmental approvals and upon compliance with all applicable laws governing the sale, lease or other disposition of city- owned property. 8. Owner and Broker agree that the Property will be offered in compliance with all applicable anti-discrimination laws. In the fulfillment of this Agreement and in any contract for the sale or lease of the Property arising therefrom, Owner and Broker agree to not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or actual or perceived sexual orientation, gender identity or disability. 9. Owner agrees to cooperate with Broker in bringing about a sale of the Property and to refer immediately to Broker all inquiries of anyone interested in the Property. All negotiations are to be through Broker. Broker is authorized to accept a deposit from any prospective purchaser and to handle it in accordance with the instructions of the parties unless contrary to applicable law. Broker is exclusively authorized to advertise the Property and, exclusively, to place a sign(s) on the Property if, in Broker's opinion, such would facilitate the sale of the Property. Owner and its counsel will be responsible for determining the legal sufficiency of a purchase and sale agreement and other documents relating to any transaction contemplated by this Agreement. 10. In the event the Property is removed form the market due to the opening of an escrow or acceptance of an offer to purchase the Property during the Term, or any extension thereof, and the sale is not consummated for any reason then, in that event, the Term shall be extended for a period of time equal to the number of days that the escrow had been opened andfor the Property had been removed from the market, whichever is longer, provided that, 185 in no event shall such extension(s) exceed one hundred eighty (180) calendar days in the aggregate. 11, Owner agrees to disclose to Broker and to prospective purchasers at such purchasers' written request any and all information which Owner has regarding present and future zoning and environmental matters affecting the Property and regarding the condition of the Property, including, but not limited to structural, mechanical and soils conditions, the presence and location of asbestos, PCB transformers, other toxic, hazardous or contaminated substances, and underground storage tanks, in, on, or about the Property as well as whether the Property is or may be situated in a flood zone. Broker is authorized to disclose any such information to prospective purchasers or tenants. 12. Owner represents that it is the owner of the Property. 13. To the extent permitted by applicable law, Broker is authorized to deduct its commissions from any deposits, payments or other funds, including proceeds of sale or rental payments, paid by a purchaser or tenant in connection with a transaction contemplated by this Agreement, and Owner hereby irrevocably assigns said funds and proceeds to Broker to the extent necessary to pay said commissions. Broker is authorized to provide a copy of this Agreement to any escrow or closing agent working on such transaction, and such escrow or closing agent is hereby irrevocably instructed by Owner to pay Broker's commissions from any such funds or proceeds available. Owner shall remain liable for the entire amount of said commissions regardless of whether Broker exercises its rights under this paragraph. 14.Agency Disclosure. Mike Elliott of CBRE Inc ("Salesperson(s)") solely represent Owner under this Agreement. Owner acknowledges that Broker is a national brokerage firm and that in some cases Broker and Salesperson(s) may represent prospective purchasers and tenants. Owner desires that the Property be presented to such persons or entities and consents to the dual representation created thereby, provided, however, that Broker shall notify Owner in writing of any and all instances in which Broker andlor Salesperson(s) also represent a prospective purchaser or tenant of the Property. Broker shall not disclose the confidential information of one principal to the other, 15, In the event that the Property comes under the jurisdiction of a bankruptcy court, Owner shall immediately notify Broker of the same, and shall promptly take all steps necessary to obtain court approval of Broker's appointment, unless Broker shall elect to terminate this Agreement upon said notice. 16. In the event that the Property becomes the subject of foreclosure proceedings prior to the expiration of this Agreement, then this Agreement shall be deemed suspended until such time as Owner may reacquire the Property within the Term. If this Agreement is suspended pursuant to this paragraph, Broker shall be free to enter into a listing agreement with any receiver, the party initiating the foreclosure, the party purchasing the Property at a foreclosure sale, or any other person having an interest in the Property. 17. Any claim, controversy or dispute between Owner and Broker relating to this Agreement,the Property or Owner's or Broker's performance hereunder shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements.. Upon mutual agreement of Owner and Broker, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute 186 was first raised, then such dispute shall be resolved in a court of competent jurisdiction located in the State of Montana. The prevailing party in court proceedings shall be entitled to recover its expenses, including its costs and reasonable attorneys'fees. 18.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. 19. In the event that Owner lists the Property with another broker after the expiration or termination of this Agreement, Owner agrees to provide in the subsequent listing agreement that a commission will not be payable to the new broker with respect to transactions for which Owner remains obligated to pay a commission to Broker under paragraph 4 or 5 hereof. Owner's failure to do so, however, shall not affect Owner's obligation to Broker under paragraph 4 or 5. 20. Each signator to this Agreement represents and warrants that he or she has full authority to sign this Agreement on behalf of the party for whom he or she signs and that this Agreement binds such party. 21. This Agreement constitutes the entire agreement between Owner and Broker and supersedes all prior discussions, negotiations and agreements, whether oral or written. No amendment, alteration, cancellation or withdrawal of this Agreement shall be valid or binding unless made in writing and signed by both Owner and Broker. This Agreement shall be binding upon, and shall benefit, the heirs, successors and assignees of the parties. In the event any clause, provision, paragraph or term of this Agreement shall be deemed to be unenforceable or void based on any controlling state or federal law, the remaining provisions hereof, and each part, shall remain unaffected and shall continue in full force and effect. 22. The parties hereto agree to comply with all applicable federal, state and local laws, regulations, codes, ordinances and administrative orders having jurisdiction over the parties, property or the subject matter of this Agreement. 23. Except as otherwise provided herein, Broker shall not assign Broker's rights, duties or obligations under this Agreement, in whole or in part,without the prior written consent of Owner. 24. Under Montana law, a seller's agent has the following duties to a seller: (a) act solely in the best interests of the seller, except that a seller agent, after written disclosure to the seller and with the seller's written consent, may represent multiple sellers of property or list properties for sale that may compete with the seller's property without breaching any obligation to the seller; (b) obey promptly and efficiently all lawful instructions of the seller; c) disclose all relevant and material information that concerns the real estate transaction and that is known to the seller agent and not known or discoverable by the seller, unless the information is subject to confidentiality arising from a prior or existing agency relationship on the part of the seller agent with a buyer or another seller; (d) safeguard the seller's confidences; (e) exercise reasonable care, skill, and diligence in pursuing the seller's objectives and in complying with the terms established in the listing agreement; (f) fully account to the seller for any funds or property of the seller that comes into the seller agent's possession; and (g) comply with all applicable federal and state laws, rules, and regulations, 25. Under Montana law a seller's agent has the following duties to the buyer: (a) disclose to a buyer or the buyer agent any adverse material facts that concern the property and that are known to the seller agent, except that the seller agent is not required to inspect the property 187 or verify any statements made by the seller; (b) disclose to a buyer or the buyer agent when the seller agent has no personal knowledge of the veracity of information regarding adverse material facts that concern the property; (c) act in good faith with a buyer and a buyer agent; and (d) comply with all applicable federal and state laws, rules, and regulations. IF A SELLER AGENT IS ALSO REPRESENTING A BUYER OR A BUYER AGENT IS ALSO REPRESENTING A SELLER WITH REGARD TO A PROPERTY, THEN A DUAL AGENCY RELATIONSHIP MAY BE ESTABLISHED. IN A DUAL AGENCY RELATIONSHIP, THE DUAL AGENT IS EQUALLY OBLIGATED TO BOTH THE SELLER AND THE BUYER. THESE OBLIGATIONS MAY PROHIBIT THE DUAL AGENT FROM ADVOCATING EXCLUSIVELY ON BEHALF OF THE SELLER OR BUYER AND MAY LIMIT THE DEPTH AND DEGREE OF REPRESENTATION THAT YOU RECEIVE. A BROKER OR A SALESPERSON MAY NOT ACT AS A DUAL AGENT WITHOUT THE SIGNED, WRITTEN CONSENT OF BOTH THE SELLER AND THE BUYER. Broker shall comply with the notification provision set forth in paragraph 14 before acting as a dual agent under this Agreement. Under Montana law, an "adverse material fact" is defined as a fact that should be recognized by a broker or salesperson as being of enough significance as to affect a person's decision to enter into a contract to buy or sell real property and may be a fact that: (i) materially affects the value, affects structural integrity, or presents a documented health risk to occupants of the property; or ii) materially affects the buyer's ability or intent to perform the buyer's obligations under a proposed or existing contract. The term does not include the fact that an occupant of the property has or has had a communicable disease or that the property was the site of a suicide or felony. 26 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 IN WITNESS WHEREOF, the parties have executed this Exclusive Sales Listing Agreement effective as of the date of Owner's signature below. Broker: Owner: CBRE, Inc.City of Bozeman Licensed ReallEstate Broker g gSiSigned, 1%0 Signed: By: Mike Elliott By: Chris A. Kukulski Title: Senior Vice President Title: City Manager Date: September 23 , 2013 Date: September 2013 Address: 1225171h Street, Suite 2950 Address: 121 North Rouse Avenue Denver, CO 802.02 Bozeman, Montana 59715 Telephone: 303-628-1741 Telephone: 406-582-2306 188 CONSULT YOUR ADVISORS — This document has legal consequences. No representation or recommendation is made by Broker as to the legal or tax consequences of this Agreement or the transaction(s) which it contemplates. These are questions for your attorney and financial advisors. 189 WAAL tBRE Schedule of Sale and Lease Commissions Property: located north of Interstate 90 between the North 7th Street and North 191th Street Interstate 90 interchanges and include parcels, S36, T01 S, R05 E, C.O.S.2153, PARCEL TRACT 1-A ACRES 22.223• S36 T01 S R05 E C.Q.S.2153 PARCEL TRACT 2- A,ACRES 10.002; 836, T01 S, R05 E, C.O.S. 2153, PARCEL TRACT 3-A, ACRES 24.761; S36,T01 S, R05 E, C.O.S.2153, PARCEL TRACT 4-A,ACRES 28.36 A. SALES: As to sales of improved real property, Broker's commission shall be 6% of the gross sales price. As to sales of unimproved real property, Broker's commission shall be 6% of the gross sales price. Gross sales price shall include any and all consideration received or receivable, in whatever form, including but not limited to assumption or release of existing liabilities. For the purpose of this Schedule, the Property is deemed to be improved or[D unimproved B. LEASES: Owner and Broker presently do not anticipate that the unimproved Property will be leased during the term of this listing, except for conveyance of leases (or renewals or extensions of existing leases), easements or other similar property rights for agricultural use of the Property, cell tower and other communication facility sites, siting of signs, installation of utilities, and rights of way, all of which do not require payment of a commission pursuant to Section 5 of the Exclusive Sales Listing Agreement (the "Listing Agreement"). if, however, a lease transaction acceptable to Owner is presented and negotiated during the term of the Listing Agreement (including the protection period set forth in Section 4)for example, if Owner desires to enter into a long-term ground lease of the Property—then Owner and Broker agree to negotiate in good faith to arrive at a reasonable and fair commission to be paid to Broker. The negotiation shall occur, and the amount of Broker's commission and its manner of payment shall be determined, prior to lease signing. C. EXCLUSIONS: Notwithstanding any other provision of the Listing Agreement and this Schedule, the provisions of this Section C shall apply if one of the following prospective purchasers enters into and closes an agreement to purchase or lease the Property: Space Bank, Ltd., 3202 East Foothill Blvd., Pasadena, CA 91107, or any assignee of Space Bank, Ltd., provided that the assignee controls, is controlled by, or is under common control with Space Bank, Ltd. If such prospective purchaser enters into and closes an agreement to purchase or lease the Property during the term of the Listing Agreement, Broker shall be entitled to (i) a commission of 3% of the gross sales price in the case of a sale, or(ii) a commission to be negotiated as described in Section B in the case of a lease. The provisions hereof are subject to the terms and provisions of the Exclusive Sales Listing Agreement to which this Schedule is attached and which is executed by the parties hereto. Signatures on next page] SCHEDULE OF SALE AND LEASE COMMISS[ONS................................................................................... PAGE 1 of 2 190 Broker: Owner: CBRE, Inc. City of Bozeman Licensed Real Estate Broker Signed: Signed: By: Mike Elliott By: Chris A.Kukulski Title:Senior Vice President Title:City Manager rDate: 2013 Date: 1 3 2013 Address: 1225 17`" Street,Suite 2950 Address: 121 North Rouse Avenue Denver, CO 50202 Bozeman, Montana 59715 Telephone: 303-625-1741 Telephone:406-552-2306 SCHEDULE OF SALE AND LEASE GOMM£SSIONS.......................................................................................................................PAGE 2 OF 2 191