HomeMy WebLinkAbout09- Land Exchange Agreement with Northwestern EnergyCommission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Bob Murray, Project Engineer
Chris Kukulski, City Manager
SUBJECT: Bozeman Water Reclamation Facility Project
MEETING DATE: 1/5/09
RECOMMENDATION: Authorize City Manager to sign the Land Exchange Agreement.
BACKGROUND: Attached is a copy of the Land Exchange Agreement with Northwestern Energy for the
above referenced project. Northwestern owns an island of property within the boundary
of the City land that the WRF facility is located on. There is a substation located on a
portion of their property with the remainder being for future expansion. In order to
facilitate the layout of the new WRF facility it was necessary to complete a boundary
relocation with Northwestern. After the relocation, both parties will own the same
amount of property as they currently do, just in a slightly different location.
In order to complete the boundary relocation via a future filing of a subdivision
exemption, it is necessary to first execute the attached Land Exchange Agreement with
Northwestern. The agreement has gone through legal review and found to be acceptable.
FISCAL EFFECTS: None
ALTERNATIVES: Disapprove
Respectfully submitted,
Robert J. Mu ay Jr., Project E g eer
Chris A. Kukulski, City Manager
Attachments: Land Exchange Agreement
Report compiled on 12/24/08
LAND EXCHANGE AGREEMENT
This agreement stipulates the terms of the land transfer of properties between the parties. Read
carefully before signing. This is a legally binding contract. If not understood, seek competent advice.
THIS AGREEMENT is made at Bozeman, Montana, as of the date of signature of the
Parties, as set forth below.
1. The City of Bozeman Montana, a political subdivision of the State of Montana
with address of P.O. Box 1230, Bozeman, Montana 59771-1230, (hereinafter referred to
as "City" or "Party") as owner of Tract 2, more particularly described below and
Northwestern Corporation D/B/A/ Northwestern Energy, a Delaware Corporation, with
address of 40 East Broadway, Butte, Montana 59701, (hereinafter referred to as
"Northwestern" or "Party") as owner of Tract 1, more particularly described below agree
to exchange certain portions of the real property described herein below, ail of which is
located within Gallatin County, Montana. The City and Northwestern may be referred
to collectively herein as "Parties".
a. The City is the owner of certain real property, located in Gallatin County,
Montana, which is more particularly described as follows:
A tract of land located in the Southeast Quarter (SE 1/4) of the Northwest Quarter
(NW 1/4) and the Southwest Quarter (SW 1/4) of the Northeast Quarter (NE 1/4)
of Section twenty-six (26), Township One (1) South, Range five (5) East of the
Montana Principle Meridian and more particularly described as follows:
Beginning at a point which bears South eighty nine degrees fifty six minutes and
thirteen seconds East (S 89° 56' 13" E) a distance of sixty one and fifteen
hundredths (61.15) feet from the center of said Section twenty-six (26); thence,
North twelve degrees thirty minutes and forty three seconds West (N 12° 30' 43"
W) a distance of three hundred forty six and twenty eight hundredths (346.28)
feet; thence, North eighteen degrees forty seven minutes and three seconds West
(N 18° 4T 03" W) a distance four hundred fifty and seventy eight hundredths
(450.78) feet; thence, North six degrees fifty three minutes and fifty three seconds
West (N 06° 53' S3" W) a distance of one hundred seventeen and ninety four
hundredths (117.94) feet; thence North one degree sixteen minutes and twenty
seven seconds East a distance of one hundred eighteen and fifteen hundredths
(118.15) feet; thence North eleven degrees three minutes and five seconds East (N
11° 03' OS" E) a distance of one hundred nine and seventy nine hundredths
(109.79) feet; thence North twenty one degrees thirty six minutes and fifty nine
seconds East (N 21° 36' S9" E) a distance of two hundred thirty seven and twenty
one hundredths (237.21) feet; thence South eighty nine degrees forty nine minutes
and twenty five seconds East (S 89° 49' 25" E) a distance of eighty nine and
seventeen hundredths (8.17) feet to the West Quarter corner of the Northeast
Quarter (NE 1/4) of said Section twenty-six (26); thence, South eighty nine
degrees fifty three minutes and five seconds East (S 89° 53' OS" E) a distance of
one thousand, three hundred thirty three and fourteen hundredths (1,333.14) feet
to the center of the Northeast Quarter (NE 1/4) of said Section twenty-six (26);
thence, South one degree eleven minutes and thirty eight seconds West (S O1° 11'
38" W) a distance of one thousand three hundred twenty seven and five
hundredths (1,327.05) feet to the South Quarter corner of the Northeast Quarter
(NE 1/4 of said Section twenty six (26); thence North eighty nine degrees fifty six
minutes and thirteen seconds West (N 89° 56' 13" W) a distance of one thousand
two hundred seventy one and thirty eight hundredths (1,271.38) feet to the said
point of Beginning and containing forty three and five hundred thirty five
thousands (43.535) acres. Less and excepting therefrom Tract 1, Certificate of
Survey No. 1015. (Referred to herein as "Tract 2").
b. Northwestern is the owner certain real property, located in Gallatin
County, Montana, which is more particularly described as follows:
A tract of land located in the Southwest one-quarter Northeast one-quarter,
Section 26, Township 1 South, Range 5 East, Principal Meridian Montana,
Gallatin County, Montana, and being more particularly described as follows:
Beginning at the Southeast corner of the Southwest one-quarter Northeast one-
quarter of said Section 26; thence North 89° 56' 13" West, along the South line of
said Southwest one-quarter Northeast one-quarter, a distance of 846.22 feet;
thence North O 1 ° 11' 3 5" East, a distance of 80.00 feet to the true point of
beginning; thence North O1°11' 35" East, a distance of 210.00 feet; thence South
88^ 48' 25" East, a distance of 209.96 feet; thence South O1° 11' 35" West, a
distance of 205.86 feet; thence North 89° 56' 13" West, a distance of 210.00 feet
and containing 1.001 acres, depicted as Tract 1, Certificate of Survey No. 1015.
(Referred to herein as "Tract 1 ").
c. The City and Northwestern desire to reconfigure and relocate the common
boundaries between their respective properties, as described above, in order that
each tract shall maintain the same acreage. The agreed upon reconfiguration of
the property is depicted on the Draft Certificate of Survey attached hereto as
Exhibit A and incorporated herein as by reference. The reconfiguration requires
that each party become vested in the newly realigned and reconfigured tracts and
release their respective interest in the former configuration of Tracts 1 and 2,
described above. In that regard, the City agrees to transfer to Northwestern that
portion of Tract 2, identified as Parcel B on Exhibit "B", in exchange for
Northwestern transferring to the City that portion of Tract 1, identified as Parcel
A on Exhibit "B". The transfer of each tract shall include all of the Party's
interest mineral estate appurtenant thereto, vacated streets and alleys adjacent
thereto, all easements, all unharvested crops, and all other appurtenances thereto;
and all improvements, and permanent fixtures thereon, including without
limitation: buildings, fences and gates, irrigation fixtures and equipment, and
shrubs, trees, and all other fixtures attached thereto, specifically excluding
however, any electric or natural gas transmission or distribution lines, for which
Northwestern specifically reserves such facilities and an easement therefore. It
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is recognized that no buildings exist on either property at the time of transfer.
d. Water rights shall not transfer.
e. The City shall grant, as part of this reconfiguration of tracts, to
Northwestern access easement to the EXISTING GATE, located on the
east side of NorthWestern's new tract through existing drives and access
ways which may change from'time to time, but which will continue to
provide access substantially similar to that existing at the time of this
Agreement.
£ The City shall construct a gravel access road from Moss Bridge Road to
the existing fence line as shown on Exhibit B.
g. Northwestern shall install a vehicle gate on the southerly side of the
existing chain link fence in the location indicated on Exhibit B as
"proposed vehicle gate". Northwestern shall install a chain link fence
across the southern boundary of their new tract and from the southeast
corner of the new tract to the existing fence line, along with a second
vehicle gate, as shown on Exhibit B. The City shall reimburse
Northwestern for the cost of the installation of said improvements upon
completion of the gate and presentation of invoices documenting the costs.
h. It is anticipated that the installation of all improvements, including roads,
fences and gates, shall be constructed concurrently with the City's
wastewater treatment plant project. Should any improvement be available
for installation or construction prior to the closing of this transaction, the
parties agree to grant access to the other party for such installation and
construction. Further it is anticipated that such construction shall occur
after the closing of this transaction and are intended to survive closing.
2. PERSONAL PROPERTY: No personal property shall transfer. Each Party shall
retain its respective personal property and shall remove any personal property present the
on other parties Tract prior to closing.
3. STATUTORY WATER RIGHTS DISCLOSURE: By Montana law, failure of the
parties at closing or transfer of real property to pay the required fee to the Montana
Department of Natural Resources and Conservation for updating water right ownership
may result in the transferee of the property being subject to a penalty. Additionally, in the
case of water rights being exempted, severed, or divided, the failure of the parties to
comply with section 85-2-424, MCA, could result in a penalty against the transferee and
rejection of the deed for recording.
4. RECEIPT OF EARNEST MONEY: Each Party acknowledges receipt from the
from the other earnest money in the amount of ONE HUNDRED AND 00/100 U.S.
Dollars ($100.00) as evidenced by cash, _ check, or
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The Parties to this transaction agree, unless otherwise provided herein, that the earnest
monies will be deposited within five (5) business days of the date all Parties have signed
the Agreement, and such funds will be held in anon-interest accruing escrow account by
Bozeman, Montana, title insurance agent and closing
escrow agent for this transaction. The Parties agree that earnest money shall be held in a
non-interest accruing account.
5-. EXCHANGE VALUE AND TERMS:
The Parties have are aware of the value of the property being transferred through this
realignment process. Each Party hereby acknowledges that the reconfigured properties
remain at an equal value to the former configuration. No additional funds shall be paid as
an exchange price. Earnest money shall be paid to the transferring Party at closing.
6. PARTIES' REPRESENTATION OF FUNDS: Each Party represents that it has
right, title and interest together with sufficient funds to complete the transfer of it's
respective property and payment of closing costs to close this transfer in accordance with
this Agreement and is not relying upon any contingent source of such funds unless
otherwise expressly set forth herein.
6. ENVIRONMENTAL ASSESSMENT: The City shall retain an environmental
engineer, acceptable to Northwestern, to conduct an Environmental Site Assessment
Transaction Screen Questionnaire (Transaction Screen) concerning the property to be
transferred between the parties to this Agreement and provide a full and complete copy of
the Transaction Screen to Northwestern. The parties' respective obligations to
consummate the exchange anticipated by this Agreement is contingent upon their
respective review and approval of the Transaction Screen. If ether party's review of the
Transaction Screen discloses any condition that materially affects the value, usefulness
and/or suitability of the property for that party's intended purposes, it shall give written
notice of said condition to the other party, on or before 15 days from the date such party
received the Transaction Screen. If a party fails to provide such notice and copy within
such time, then this contingency shall be deemed waived by such party. The party
receiving written notice of unacceptable condition shall have 15 days to advise the party
which gave the notice in writing whether it will agree to remedy the noted conditions. If
the party receiving the notice elects to remedy such conditions the transaction shall
proceed to closing, however the parties shall have an additional 30 days from the
specified closing date to affect the remedy, if necessary. If the party receiving the notice
elects not to remedy such conditions party's obligations to consummate the exchange
anticipated by this Agreement shall be terminated.
7. APPRAISAL PROVISION: The Parties, as previously stated, have secured or
waive an appraisal by a qualified appraiser. The reconfiguration of the tracts of land are
determined to be of equivalent value to the existing tracts.
8. PROPERTY INVESTIGATION: Without affecting or abrogating the Parties'
contingencies set forth herein, each Party has had sufficient time, prior to the execution of
this Agreement to independently conduct an investigation of and satisfaction with any or
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all of the following conditions relating to the property, including but not lirnited to;
covenants, zoning, access, easements, well depths, septic and sanitation restrictions,
surveys or other means of establishing the corners and boundaries, special improvement
districts, restrictions affecting use, special building requirements, future assessments,
utility hook-up and installation costs, environmental hazards, appurtenant water and
mineral rights, wildlife habitat, agricultural productivity, physical access, or anything else
that the either Party deems appropriate.
9. DUE DILIGENCE: The parties' respective obligations to consummate the exchange
anticipated by this Agreement is contingent upon their respective review and approval of
such professional, independent due diligence investigation of all conditions relating to the
properties which the either party may desire to have investigated, other than the
environmental condition, which is addressed in Section 6, above. If ether party's review
of such inspection discloses any condition that materially affects the value, usefulness
and/or suitability of the property for that party's intended purposes, it shall give written
notice of said condition to the other party, providing a full copy of the inspection report,
on or before 30 days from the date of this Agreement. If a party fails to provide such
notice and copy within such time, then this contingency shall be deemed waived by such
party. The party receiving written notice of unacceptable condition shall have 15 days to
advise the party which gave the notice in writing whether it will agree to remedy the
noted conditions. If the party receiving the notice elects to remedy such conditions the
transaction shall proceed to closing, however the parties shall have an additional 30 days
from the specified closing date to affect the remedy, if necessary. If the party receiving
the notice elects not to remedy such conditions party's obligations to consummate the
exchange anticipated by this Agreement shall be terminated. Each party shall be
responsible for all costs associated with its due diligence investigations.
10. PROPERTIES INSPECTIONS: The Parties are aware that the Parties may have
had conducted an expert inspection or analysis of the property. The Parties agree to
provide that information, should it exist, to the other. The parties make no representation
as to their respective property condition, do not assure that any fixture upon the property
will be satisfactory to the other in all respects, nor that all equipment will operate
properly or that the property and/or improvements comply with current building and
zoning codes and ARE NOT building inspectors, building contractors, structural
engineers, electricians, plumbers, sanitarians, septic or cesspool experts, well drillers or
well experts, land surveyors, civil engineers, flood plain or water drainage experts,
roofing contractors or roofing experts, accountants, attorneys or title examiners, or
experts in identifying hazardous waste and/or toxic materials.
11. PARTIES REPRESENTATIONS AND WARRANTIES: Each Party represents
and warrants to the other that:
A. The parties hereto are the fee simple owner of all of the properties subject to
this Agreement; and that Parties have the right and authority to execute
documents of conveyance for the properties to each other.
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B. The Parties have not caused or consented to any work on their respective
property which could result in the filing of construction liens against the property,
and the Party shall not permit such liens to arise prior to Closing.
C. No person, firm, or entity other than the other Party to this Agreement, has any
right to acquire any of the property subject to this agreement and there is no
outstanding agreement to sell either property to any third party. The Parties have
not granted and will not grant any third party any right of use of the properties
that. may continue after the Closing Date. No leases, licenses, agreements, or
other use rights of any type or nature, with or in favor of any third party, whether
written or oral, whether of record or not of record, exist as to the property.
D. The Parties have no knowledge of pending, threatened or contemplated
condemnation actions, which would affect the properties subject to this
Agreement. The Parties do not know of threatened or pending boundary disputes
with owners of real estate adjoining the properties subject to this Agreement, nor
have the Parties entered into any boundary agreement with any adjacent property
owner.
E. The Parties have no knowledge of any facts which would give rise to a claim
of a prescriptive interest in and to any part of the properties subject to this
Agreement by any third party, nor has any such claim or demand ever been
threatened or asserted against the Parties or the properties during the period of
Parties' ownership thereof.
F. To the best of each Party's knowledge and belief, there are no underground
fuel storage tanks and/or toxic waste dumps on the subject property. In
addition, to the best of Parties' knowledge and belief, there has been no
disposal, release, or threatened releases of hazardous substances or hazardous
wastes from, on, or under the subject properties during the period of the
Party's respective ownership, other than the types and amounts of substances
used in connection with agricultural operations on the properties as is
customary for a ranching operation in Gallatin County, Montana, and other
than the types and amounts of substances used in connection with the
operation of NorthWestern's electric substation, which substances have been
used and disposed of in accordance with all applicable laws and regulations.
G. There are no actions, suits, proceedings, or claims, that remain unresolved
affecting the properties or any portion thereof or relating to or rising out of the
ownership, operation, use or occupancy of the property pending or being
prosecuted in any Court or by or before any Federal, State, Court or Municipal
Department, Commission Board, Bureau or Agency, and that any notice of an
action, suit proceeding or claim received by the parties,. which may be
threatened or asserted against the properties, be resolved prior to closing,
except for the process in Montana that involves the general adjudication of all
Montana water rights.
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H. All information and disclosures made by the Parties and their agents and
representatives are true and correct to the best of Parties' knowledge and
belief as of date and time of Closing.
The Parties agree to hold each other harmless and indemnify the other from and
against any and all liability, claims, actions, suits, damages, and costs arising out of the
untruth or out of the Parties' breach of any of the foregoing .representations and or
warranties. These representations and warranties, and the indemnification covenant
herein contained, shall survive Closing and not be merged into or extinguished by any
documents of conveyance delivered at Closing.
12. CONVEYANCE: The Parties shall each convey the real property by. Warranty
Deed, free of all liens and encumbrances except those described in the title insurance
commitment as approved by the other Party. The City's conveyance shall be together
with the grant of an access easement, as anticipated by Section 1 (e) and NorthWestern's
conveyance shall reserve an easement for existing electric and natural gas transmission
and distribution lines, as anticipated by Section 1 (c). Further, the City acknowledges
and agrees that Parcel A, as depicted on Exhibit "B", which is to be conveyed by
Northwestern to the City, is subject to the lien of mortgage that Northwestern agrees to
obtain the release of in the normal course of business. Upon the City's request,
Northwestern will provide an Indemnification Agreement indemnifying the City and its
title company from the effects of such mortgage.
13. TITLE INSURANCE: The City shall purchase for Northwestern Title Insurance
on the property it is conveying to Northwestern, in the amount of $250,000, and may
purchase for itself, Title Insurance on the Lot they are acquiring, both of which
evidenced by a standard form American Land Title Association title insurance
commitment, committing to insure merchantable title to the real property in Party's name,
free and clear of all liens and encumbrances except: zoning ordinances; building and use
restrictions; reservations in federal patents; beneficial easements of record; Special
Improvement Districts; real estate taxes for the year in which closing occurs; and the
standard pre-printed exclusions. Each Party may purchase additional title coverage for an
additional cost. It is recommended that each Party obtain details from a title company.
14. TITLE REVIEW: The parties' respective obligations to consummate the exchange
anticipated by this Agreement is contingent upon their respective review and approval of
a preliminary title commitment concerning the property each party is to acquire. If ether
party s review of the preliminary title commitment discloses any condition that materially
affects the value, usefulness and/or suitability of the property, such party shall give
written notice of said condition to the other party on or before 30 days from the date of
this Agreement. If a party fails to provide such notice and copy within such time, then
this contingency shall be deemed waived by such party. The party receiving written
notice of unacceptable condition shall have 15 days to advise the party which gave the
notice in writing whether it will agree to remedy the noted conditions. If the party
receiving the notice elects to remedy such conditions the transaction shall proceed to
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closing, however the parties shall have an additional 30 days from the specified closing
date to affect the remedy, if necessary. If the party receiving the notice elects not to
remedy such conditions party's obligations to consummate the exchange anticipated by
this Agreement shall be terminated.
15. SPECIAL IMPROVEMENT DISTRICTS: Special Improvement Districts
(including rural SIDs), including those that have been noticed by City/County, but not yet
spread or currently assessed, if any; will be paid current as of the time of Closing. Each
Party shall assume the unpaid balance of any SIDS after closing.
16. PRORATION OF TAXES AND ASSESSMENTS: Each Party agrees to prorate
taxes, Special Improvement District assessments for the current tax year, as well as pre-
paid rents. Otherwise, the City shall pay all other closing costs, including but not limited
to the fee of the closing agent, document preparation costs, and recording fees.
17. CLOSING DATE: The date of Closing shall be 60 days after the execution of this
Agreement by all Parties. The calculation shall begin on the date of the last signature to
this Agreement. The Parties may, by mutual agreement, agree to close the transaction at
any time prior to the date specified or to extend the Closing Date. The Parties will
deposit with the Closing Agent all instruments and monies necessary to complete the
transfer in accordance with this Agreement by such date. The Parties recognize that the
person who prepared this Transfer Agreement, namely Susan B. Swimley, attorney for
City of Bozeman. It is recommended that Northwestern have this document and all
subsequent documents reviewed by an attorney of its choice before signing.
18. POSSESSION: The Parties shall deliver each to the other possession of the
property and allow occupancy on the date of Closing. The properties shall be vacant
unless otherwise agreed in writing. All loss or damage to either tract subject to this
agreement shall be born by the owner of the tract through the closing and transfer.
19. CONDITION OF PROPERTY: Each Party agrees that the properties shall be in
the same condition, normal wear and tear excepted, from the date of the execution of this
Agreement up to the time the other Party takes possession of the property. Each Party
shall remove all personal property prior to Closing. Any such items of personal property
remaining on the property after closing shall become the property of the new owner.
20. NOXIOUS WEEDS DISCLOSURE: Each Party receiving property in the state of
Montana should be aware that some properties contain noxious weeds. The laws of the
state of Montana require owners of property within this state to control, and to the extent
possible, eradicate noxious weeds. For information concerning noxious weeds and your
obligation as an owner of property, contact either your local County extension agent or
Weed Control Board.
21. 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
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Violent Offender Registration Act. In some communities, law enforcement offices will
make the information concerning registered offenders available to the public. If you
desire further information please contact the local County Sheriffs office, the
Department of Justice in Helena, Montana, and the probation officers assigned to the
area.
22. REMEDIES: If the Parties agree to the transfer as set forth in this Agreement, but
refuse or neglect to consummate the transaction within the time period provided in this
Agreement, the Party ready to perform shall have the right to:
(1) Demand that Party specifically perform Party's obligations under this
Agreement; OR
(2) Demand monetary damages from non-performing Party for the non-
performing Party's failure to perform the terms of this Agreement.
23. PARTIES' CERTIFICATION: By entering into this Agreement, each person or
persons executing this Agreement, represents that he/she is eighteen (18) years of age or
older, of sound mind, and legally competent to own real property in the State of Montana;
and, if acting on behalf of a corporation, partnership, or other non-human entity, that
he/she is duly authorized to enter into this Agreement on behalf of such entity.
24. CONSENT TO DISCLOSE INFORMATION: The parties hereby consent to the
procurement and disclosure by the parties and their attorneys, agents, and other parties
having interests essential to this Agreement, of any and all information reasonably
necessary to consummate the transaction described in this Agreement, specifically
including access to escrows for review of contracts, deeds, trust indentures, or similar
documents concerning this property or underlying obligations pertaining thereto.
25. RISK OF LOSS: All loss or damage to any of the above-described real property or
personal property to any cause is assumed by owner of the property through the time of
Closing unless otherwise specified.
26. TIME IS OF THE ESSENCE: Time is of the essence in this Agreement and all
clauses herein.
27. BINDING EFFECT AND ASSIGNABILITY: The Agreement is binding upon the
heirs, successors, and assigns of each of the parties hereto. The parties may only assign
its rights and obligations under this Agreement with the prior written consent of the other
Party. Such consent shall not be unreasonably withheld.
28. §1031 EXCHANGE: Each Party herein acknowledges that it is or may be the
intention of the other Party to create an IRC § 1031 tax-deferred exchange in connection
with this transaction. Each Party agrees that the other Party's rights and obligations under
this Agreement may be assigned to facilitate such exchange and that this Agreement is
part of an integrated, interdependent exchange agreement. Each Party agrees to
cooperate with the other exchanging Party in any manner necessary to enable the
exchanging Party to qualify for and conduct such exchange provided there is no
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additional cost or liability to cooperating Party. This Agreement shall not be contingent
upon either Party's ability to transact such an exchange.
29. ATTORNEY FEES: In any action brought by the Parties' to enforce any of the
terms of this Agreement, the prevailing party in such action shall be entitled to such
reasonable attorney fees as the court or arbitrator shall determine just.
30. FACSIMILE: The Parties agree that a facsimile copy of this Agreement which
contains the Parties' signature may be used as the original.
31. ENTIRE AGREEMENT: This Agreement, together with any attached exhibits and
any addenda or amendments signed by the Parties, shall constitute the entire agreement
between the Parties, and supersedes any other written or oral agreements between the
Parties. This Agreement can be modified only in writing, signed by the Parties.
32. COUNTERPARTS: A copy of this document may be executed by each
individual/entity separately, and when each has executed a copy thereof, such copies,
taken together, shall be deemed to be a full and complete contract between the Parties.
33. CITY- ENTRY WAY CORRIDOR:
A. The parties understand that the reconfigured parcel which Northwestern will
acquire as part of this exchange is partially within the City's Class I Entryway Corridor
Overlay Zone (Entryway Corridor Overlay Zone). The parties further understand that
inclusion of a portion of the property in the Entryway Corridor Overlay Zone may cause
the City to require Northwestern to make improvements, including but not limited to
screening, landscaping, parking, drainage, entrances, lighting, road improvements,
sidewalk and curbs, bicycle paths and other improvements, which Northwestern would
not otherwise choose to make. The City therefore shall indemnify and hold
Northwestern harmless from any and all costs and expenses (including without
limitation, reasonable attorney fees and expenses) incurred in designing, engineering,
constructing, and in anyway related to making any improvements to its property required
for compliance with the Entryway Corridor Overlay Zone, as the Entryway Corridor
Overlay Zone may presently exist, or may be modified into the future. This provision
shall survive closing of the exchange contemplated herein, and shall remain in full force
and effect for a period of fifty years from the date of closing.
B. Any dispute between Northwestern and the City as to whether an improvement or
condition imposed on Northwestern by the City is required for compliance with the
Entryway Corridor Overlay Zone shall be submitted to a third party arbitrator, who shall
be agreed upon by the parties. Either party may exercise its right to submit a dispute
concerning this issue to the arbitrator by sending written notice to the other party. If the
parties can not agree upon an arbitrator, each of the parties shall name an arbitrator, and
those two arbitrators shall name a third arbitrator, and the decision of a majority of those
three arbitrators shall resolve the dispute. The parties shall then submit in writing to the
arbitrator their positions in regards to the dispute between the parties upon a schedule set
forth by the arbitrator in writing to the parties. The arbitrator shall make a written
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decision upon the dispute within thirty (30) days of the submission of the party's position
statements and shall include a statement specifying in reasonable detail the basis for the
decision and the computation of any amounts in the decision, if any. Judgment upon the
award may be entered in any court having jurisdiction.
33 EARNEST MONEY DISPUTES: The Parties agree that, in the event of any
controversy regarding the earnest money and things of value held by the Closing Agent,
unless mutual written instructions are received by the holder of the earnest money and
things of value, Closing Agent shall not be required to take any action, but may await any
proceedings, or, Closing Agent's option and sole discretion, may interplead all parties
and deposit any monies or things of value into a court of competent jurisdiction and may
utilize as much of the earnest money deposit as may be necessary to advance the cost and
fees required for filing such action.
34. PARTIES' ACKNOWLEDGMENT REGARDING INVESTIGATION:
Without affecting or abrogating the Parties' contingencies set forth hereinabove, the
Parties' acknowledge that they have examined the real property and that each enters into
this Agreement in full reliance upon its independent investigation and judgment, that
prior verbal representations by the other Party do not modify or affect this Agreement,
and that by signing this Agreement the Parties acknowledge having read and understood
this entire Agreement.
City of (B~ozeman~f
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Northwestern Corporation D/B/A Northwestern Energy
a Delaware corporation
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