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HomeMy WebLinkAboutOrdinance 12- 1821 Story Mansion Purchase and Sale s ORDINANCE NO. 1821 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, AUTHORIZING THE CITYY MANAGER TO SIGN A PURCHASE AND SALE AGREEMENT FOR THE SALE AND CONVEYANCE OF THE STORY MANSION PROPERTY LOCATED AT 811 SOUTH WILLSON AVENUE INCLUDING SEVERAL CONTINGENCIES REGARDING THE SALE, AND AUTHORIZING THE GRANTING AT CLOSING OF THE SALE A NON-EXCLUSIVE PEDESTRIAN EASEMENT FOR ACCESS TO THE STORY MANSION ACROSS THE STORY PARK, AND REQUIRING THE PROCEEDS FROM THE SALE BE DEPOSITED IN THE CITY'S GENERAL FUND, AND PROVIDING FOR AN EFFECTIVE DATE. NOW THEREFORE,BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEI'VJ[AN,MONTANA: Section 1. Legislative-Findings. The City Commission hereby makes the following findings in support of adoption of this Ordinance I. The City of Bozeman owns real property known as the Story Mansion located at 811 South Willson Avenue, 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 2.06.870.D, BMC authorizes the City to sell or give property containing a historically significant building to a nonprofit organization that agrees to restore or preserve the property so long as the contract for the transfer of the property contains a provision that requires the property to be preserved in its present or restored state upon any subsequent transfer and also provides for the reversion of the property to the city for noncompliance with the conditions of transfer. 5. The Story Mansion is a property of historic significance as documented when the City purchased the property,through several stages of renovation, and most recently through the "T.B. Story Mansion and Carriage House Conservation Easement ORDINANCE 1521 Page I of 4 Agreement for Save America's Treasures Grant No, 30-04-ML-0046" recorded as Document No. 2338483, in the records of the Gallatin County, Montana, Clerk and Recorder. 6. During the spring and early summer of 2011 the City Commission authorized the City Manager to publish a "Request for Proposals" seeking interested parties to submit proposals for purchasing the Story Mansion and for restoring and preserving the Story Mansion and ensuring the long-term use of the first floor of the Story Mansion as a community center. 7. On July 18, 2011, Exergy Development Group, LLC submitted a response to the City's Request for Proposals titled "Proposal to Receive Ownership of the Story Mansion" (the"Proposal"). 8. On August 15, 2011,the Bozeman City Commission, after having conducted a duly noticed public hearing and by a vote of four to zero, reviewed the Proposal and determined the sale of the Story Mansion property located at 811 South Willson Avenue to the soon-to-be constituted Exergy Friends of the Story Mansion is in the public interest and also that the public interest will be furthered by specific conditions of the sale requiring reversion to the City if Exergy Friends of the Story Mansion does not preserve or restore the property. The findings given by the Commission at that time are hereby incorporated into this ordinance. 9. The Commission also determined, for the reasons given at the August 15, 2011 meeting which are incorporated into this ordinance, that the ownership of the property is no longer necessary to the conduct of city of Bozeman business. 10. Exergy Friends of the Story Mansion will, at the time of closing, be a qualified non- profit organization and is required by the terms of the attached Agreement to Sell and Purchase Real Estate to maintain such status throughout its ownership. 11.As required by the Bozeman Municipal Code, the terms of the attached Agreement to Sell and Purchase Real Estate of the Story Mansion property require reversion of the property to the City if the property is not restored according to the terms of the Agreement. 12, 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 authorizes the City Manager to enter into the attached Agreement to Sell and Purchase Real Estate. (Attachment A) and to take all other action necessary to effectuate the sale of the Story Mansion property to purchaser Exergy Friends of the Story Mansion. The property is located at 811 South Willson Avenue and is legally described as Lot I A-1 of the Second Amended Plat of Block 3 of the Butte Addition to the City of Bozeman, Gallatin County,Montana, according to the official plat thereof on file and of record in the office of the Clerk and Recorder of Gallatin County, Montana [Plat C-35H]. 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 Exergy Friends of the Story Mansion: ORDINANCE 1821 Page 2 of 4 1� The sale prices shall be Three Hundred Ninety One Thousand Two Hundred Twenty Two US Dollars(5391,222.00). 2, The purchaser shall pay cash to the City at closing, 3, The City Manager shall not be authorized to sign the attached Agreement to Sell and Purchase Real Estate 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 of Bozeman until executed by the City Manger at that time, 4. Prior to closing, an. agreement shall be signed by Exergy Friends of the Story Mansion and the City Manager regarding maintenance of the dedicate parkland surrounding the Story Mansion property and other related issues, 5. The City Manager may execute reciprocal Rights of First Offer for the Story Mansion and Story Park substantially conforming to Exhibits G and H to Attachment A. 6. Prior to closing, covenants substantially conforming to Exhibit F to Attachment A and addressing the use of the first floor of the Story Mansion as a community center and preservation of the Story Mansion shall be executed by the City and Exergy Friends of the Story Mansion. Section 3 At closing of the property, the City Manager is authorized to execute a Pedestrian Easement for access to the Story Mansion across the Story Park (Exhibit A Attachment A). Section 4 Proceeds of the sale shall be deposited in the City's general fund. Section 5 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. Section 6 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? 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. ORDINANCE 1821 Page 3 of 4 Section 8 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 9 Effective Date. This ordinance shall be in full force and effect 30 days after final adoption, 1, f1p PROVISIONALLY PASSED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the 9th day of April, 2012. 130Z ,4 &A 1,'4 BECKER,Mayor ATTES ! ,Zi' S jg -c-0 C Til co 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 23rd day of April,2012. The effective date of this ordinance is May 23,2012. O 13 SEAN A. BECKER, Mayor kQ2 City ATTES PSEANX-. ATTES ,", r 7 ST UL I L r�K�- C AS TO APPROaV . FORM: G SULLIVAN SULL City Attorney ORDINANCE 1821 Page 4 of 4 ATTACHMENT A TO ORDINANCE 1821 AGREEMENT TO SELL AND PURCHASE REAL ESTATE THIS AGREEMENT ("Agreement") is made, effective as of the date of Seller's signature below ("Effective Date"), by THE CITY OF BOZEMAN, City Hall, 121 North Rouse Avenue, Bozeman, Montana 59715 ("Seller"), and EXERGY FRIENDS OF THE STORY MANSION, a Montana non-profit corporation, c/o Exergy Integrated Systems, 40 West 14th Street, Suite 4A, Helena, Montana 59601 ("Buyer"). 7�"). In consideration of the mutual promises, the money consideration hereinafter described, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer agree as follows: 1. Property. Seller shall convey to Buyer, and Buyer shall purchase from Seller, for the price and on the terms hereinafter set forth, land located at 811 South Willson Avenue, Bozeman, Gallatin County,Montana("Land")legally described as follows: Lot IA-1 of the Second Amended Plat of Block 3 of the Butte Addition to the City of Bozeman, Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the Clerk and Recorder of Gallatin County,Montana. [Plat C-35H] The Land shall be conveyed together with: (a) All attached buildings and structures, including but not limited to the buildings known as the "Story Mansion" and the "Carriage House," and all equipment, fixtures, and other improvements owned by Seller (including leasehold improvements to which Seller has succeeded or will succeed pursuant to leases of the Land to tenants) and located at or used in connection with the ownership, operation, and maintenance of the Land, including without limitation all heating, lighting, air conditioning, ventilating, plumbing, electrical or other mechanical equipment, appliances, and other equipment used in the operation of the Land (collectively"Improvements"); (b) All of Seller's right, title, and interest in and to all rights of way, tenements, hereditaments, easements,rights,interests, claims,minerals and mineral rights,water and water rights,utility capacity, and appurtenances in any way belonging or appertaining to the Land and all of Seller's right, title, and interest, insofar as Seller holds such right, title, and interest by virtue of its ownership of the Land in and to all adjoining streets, alleys, private roads, parking areas, curbs, sidewalks, landscaping, signage, sewers, and public ways (collectively "Appurtenant Rights'); (c) To the extent assignable, all of Seller's right, title, and interest in and to all contracts, agreements, guarantees, warranties, and indemnities, written or oral, affecting the ownership, operation, management, and maintenance of the Land, Improvements, and Appurtenant Rights, that Buyer, except for agreements and permits for rental of the Property as provided for in Section 5,elects in writing(at least seven(7) days prior to the Closing Date) to assume and that are not(with Buyer's prior written consent and upon Buyer's election) terminated by Seller on or before the Closing Date as provided herein(collectively`.`Contracts"); (d) To the extent assignable, all of Seller's right, title, and interest in and to all (i) plans, drawings, designs, specifications, blueprints, surveys, engineering reports, environmental .AOREFMENT TO SELL AND PURCHASE REAL ES'FATF(C¢TY OF BOZEMAN/E.XERGY FRIENDS OF THE STORY MANSION).......--.........PAGE 1 OF 16 reports, and other technical descriptions or materials relating in any way to the Land, Improvements, Appurtenant Rights or Contracts, and (ii) licenses, franchises, certificates, occupancy and use certificates, permits, authorizations, consents, variances, waivers, approvals and the like from any federal, state, county, municipal or other governmental or quasi-governmental body, agency, department, board, commission, bureau or other entity or instrumentality affecting the ownership, operation or maintenance of the Land or the Improvements(collectively "Licenses"); (c) A non-exclusive Pedestrian Easement (as defined in Section 4) for ingress and egress from the right-of-way of Willson Avenue to the entrance of the Story Mansion fronting Willson Avenue; (f) All tangible and intangible personal property owned by Seller associated with the above- described Land and Improvements and used in the operation, maintenance or management thereof(collectively "Personal Property") except for the following which shall be removed from the Property by the Seller prior to the Closing Date: six (6) beige texture circular tables (5 ft. diameter); two (2)beige texture circular tables (6 ft. diameter); two (2) 30 inch x 8 feet beige texture rectangular tables; two (2) carts for holding circular tables; and all personal property located within the Carriage House. The Land, Improvements, Appurtenant Rights, Contracts, Licenses, Pedestrian Easement, Personal Property, and other property described above are collectively referred to herein as the "Property." The parties agree that this Agreement shall be amended to conform the legal description of the Land stated above to the legal description stated in the policy of title insurance to be obtained pursuant to Section 10. 2. Purchase Price. (a) Purchase Price. The purchase price ("Purchase Price") for the Property shall be THREE HUNDRED NINETY ONE THOUSAND Two HUNDRED TWENTY Two US DOLLARS ($391,222.00). (b) Manner of'Payment, Buyer shall pay Seller the Purchase Price as follows: (i) Credit. Buyer shall receive a credit at closing in the amount of $1,000.00, which amount represents a contribution made by Friends of the Story Mansion to the City of Bozeman and accepted by the City as a good faith payment. (ii) Balance. The balance of the Purchase Price, in the amount of $390,222.00 (plus or minus prorations and adjustments), shall be paid by Buyer to Seller at closing in certified or other immediately available cash funds. 3. Reimbursement for Carriage House Expenses. The parties acknowledge that the Seller has expended certain amounts for modifications to the interior of the Carriage House roof. These modifications were made at the recommendation and request of Friends of the Story Mansion for the purpose of preserving the historic character of the building's second floor. As such, in addition to (but not as part of) the Purchase Price, Buyer agrees to reimburse the Seller at closing, in the amount of$15,803.79, for these expenditures. AGREEMENT TO SELL AND PURCHASE REM,,ESTATE(CITY or BOZEMAN I ExERGY FRIENDS OF THE STORY MANSION).... ............ 4. Easements, (a) Pedestrian Easement. Seller agrees to convey to Buyer a non-exclusive access easement ("Pedestrian Easement") across Lot IA-2 of the Second Amended Plat of Block 3 of the Butte Addition to the City of Bozeman, Gallatin County, Montana("City Lot") for pedestrian ingress and egress to and from the Land by the Property owner and its members, tenants, occupants, and invitees. The easement centerline shall be the centerline of an existing walkway and shall proceed from the public right-of-way of South Willson Avenue directly to the boundary of the Land in such a manner as will provide direct access from Willson Avenue to the front entrance of the Story Mansion. The easement width shall be twelve (12) feet,measured six (6) feet on each side of the easement centerline. Buyer shall have the right to construct, reconstruct, and maintain a walkway on the easement. Buyer may also use the easement area to install those fixtures and utilities necessary to illuminate the walkway, subject to Buyer first obtaining all necessary governmental permits and approvals. The Land shall be the dominant tenement and the City Lot shall be the servient tenement of the Pedestrian Easement. The Pedestrian Easement shall be documented substantially in the form attached hereto as Exhibit A. (b) Pipeline Easement and Well Sharing Agreement. The Buyer agrees the Seller may reserve an easement for itself and its successors in interest for access to and shared use with the Buyer of a water well located on the Land. If the Seller determines to reserve such an easement, the easement shall be documented as an exhibit to a Well Sharing Agreement which Agreement and easement shall be substantially in the form attached hereto as Exhibit B. S. Existing Rental Agreements for the Property. The Buyer shall honor all agreements and permits between the Seller and a third party for rental of the Property which are entered into by Seller prior to the Closing Date as listed on Exhibit C. Buyer shall have the right to collect all agreed upon fees for any event occurring after the Closing Date. Deposits required by the Seller from each permittee for events occurring after the Closing Date shall be transferred to Buyer at Closing. 6. Conveyance Documents. (a) Warranty Deed Seller agrees that when the purchase price has been paid to Seller in full, Seller will convey the Land, Improvements, and Appurtenant Rights to Buyer by a good and sufficient warranty deed stating the usual covenants set out in Montana Code Annotated § 30- 11-110,in fee simple,free and clear of all encumbrances,excepting only: (i) Reversion to the City of the fee interest in the Property should the Buyer fail to restore the Property in compliance with Section 17.The Seller's reversionary interest reversion shall run with the land and be binding on all Buyer's successors in interest. The warranty deed shall provide a mechanism for release and reconveyance to Buyer of Seller's reversionary interest upon Buyers completion of the restoration obligations set forth in Section 17; (ii) Taxes and assessments prorated as of the date of closing; (iii) A conservation easement and all conditions of said easement as set forth in a document entitled "T.B. Story Mansion and Carriage House Conservation Easement Agreement for Save America's Treasures Grant No. 30-04-ML-0046" and recorded as Document No. 2338483, in the records of the Gallatin County,Montana, Clerk and Recorder; AGF,FCMFNTI'O SELL AND PURCHASE REAL EsiATL(CITY OF BozFN4AN/EXERGY FRIENDS OF TIfFSTORY MANSION)...._...............PAGE 3 OF 16 (iv) The Conditions of Approval for a Conditional Use Permit for Property Located at 811 South Willson Avenue, Bozeman, MT, for the establishment of a community center, recorded as Document No. 2337320 in the records of the Gallatin County, Montana Clerk and Recorder; (v) Such other title exceptions as Buyer shall approve in writing pursuant to Section 10. (b) Bill of Sale. Seller shall convey the Personal Property by good and sufficient bill(s)of sale, (c) Additional Documentation. Each party from time to time, on or subsequent to the Closing Date, at the other party's request and without further consideration, shall execute and deliver to the other party such other instrument of conveyance, assignment or transfer and take such other action as the other party may reasonably require in order to effectively convey, transfer and vest and put Buyer in possession of the Property. 7. Closing and Possession Dates. Subject to the terms and conditions herein, the closing of the transaction contemplated by this Agreement shall take place after advance written notice to Seller from Buyer of no less than ten (10) business days, but in no event later than June 30, 2012 ("Closing Date'). Seller shall deliver possession and occupancy to the Buyer on the beginning of the day following the Closing Date. 8, Closing Agent, Fees. The closing agent ("Closing Agent') for the transaction shall be American Land Title Company, 1800 West Koch,P.O. Box 396,Bozeman, Montana 59715. Buyer and Seller will deposit with the Closing Agent all instruments and monies necessary to complete the purchase in accordance with this Agreement. The closing fee charged by the Closing Agent shall be divided equally between Seller and Buyer. Except as otherwise specifically provided herein, Buyer and Seller shall each pay their own attorney's fees for document preparation, review, and counsel prior to closing. 9. Prorations. (a) Taxes and Assessments. Seller shall pay all taxes and assessments levied on the Property and all delinquent taxes and assessments,if any, prior to the Closing Date. Buyer shall pay all of such taxes and assessments levied on the Property after the Closing Date. (b) Special Improvement Districts. Special improvement districts, including but not limited to all perpetual special improvement districts and those that have been noticed to the Seller but not yet spread or currently assessed,will be assumed by Buyer at closing. (c) Rents. Rents receivable from tenants, permittees, and licensees and earned and attributable to the period prior to the Closing Date shall be paid to the Seller to the extent that such rents have been collected prior to the Closing Date. Rents earned and attributable to the period beginning on the Closing Date and thereafter shall be paid to the Buyer. Upon receipt after the Closing Date by the Buyer of rents earned by the Property prior to the Closing Date, the same shall be paid to the Seller; provided, that the Buyer shall have no obligation, except as provided in Section 5,above, to enforce collection of such rents. (d) Utility Charges. Gas, electricity, water, sewer, and other-utility and service charges shall be prorated as of the Closing Date. AGREEMENT TO SELL AND PURCHASE REAL ESTATE(CITY OF BozEmAN/EXERGY FRIENDS OF'HE,STORY MANSION).................. PAGE 4 OF 16 10. Title Insurance. Not later than five (5) days after the Effective Date, Seller shall, at Seller's sole expense,order for delivery to Buyer a preliminary title report from a title company authorized to do business in Montana for a standard coverage owner's title insurance policy in the amount of the Purchase Price,covering title to the Land,Improvements, and Appurtenant Rights and showing title in Seller, dated not earlier than the Effective Date, together with legible copies of each of the documents underlying the title exceptions listed therein. On or before a date that is twenty(20) days after receipt of the title report,Buyer shall notify Seller in writing of any exceptions to title set forth in the title report that are unacceptable to Buyer. Within ten (10) days following the delivery of Buyer's notice ("Title Clearance Date"), Seller shall identify in writing to Buyer any of those exceptions that Seller, using Seller's reasonable efforts and without material cost to Seller, will not be able to resolve prior to closing. Buyer shall then report in writing to Seller, on or before the later of ten (10) days after the Title Clearance Date, whether Buyer is willing to accept the title as shown in the title report subject to those exceptions or whether Buyer has elected to terminate this Agreement. If Buyer makes no such written report to Seller on or before such date, then Buyer shall be deemed to have waived its right to terminate this Agreement pursuant to this Section. If Buyer has elected to terminate this Agreement, then the parties hereto shall have no further obligations hereunder (except for obligations which are expressly intended to survive the tennination of this Agreement). If, however, the transaction contemplated by this Agreement closes, then Seller shall deliver to Buyer as soon as practicable after closing the issued title insurance policy containing only the exceptions shown in the title report as approved by Buyer. Seller shall be obligated to pay only the portion of the premium of the title policy exclusive of any charge for coverage for survey matters and exclusive of any charges for special endorsements, extended coverage, or enhanced coverage requested by Buyer. IL Sellers Obligation to Provide Documentation for Review. Within ten (10) days after the Effective Date, Seller shall deliver to Buyer the following documents for Buyer's review: (a) Copies of any and all existing rental agreements together with any and all exhibits and amendments thereto; (b) Copies of any warranties, maintenance, service, supply, management or other agreements presently in effect, or which may come into effect, of whatsoever nature affecting the Property. (c) Copies of all engineering reports and environmental reports and assessments pertaining to the Property in Seller's possession or available to Seller made within the last five(5)years; (d) Such other relevant documents as Buyer may reasonably request. 12, Inspection Period; Conditions Precedent. (a) Inspection, Buyer shall have from the Effective Date through MW25,2012 (the"Approval Date") to inspect the Property and complete such appraisals, tests, inspections and investigations as Buyer may determine to be necessary or desirable in its sole discretion. The period between the Effective Date and the Approval Date is called the "Inspection Period". Without limiting the generality of the first sentence of this Paragraph I I(a), prior to or during the Inspection Period Buyer may conduct such tests, inspections or investigations of the Property as it deems reasonably necessary. If, in the sole discretion and at the sole election of Buyer, any of said tests, inspections or investigations are unsatisfactory to Buyer, in any manner or for any reason in Buyer's sole discretion, Buyer may terminate this Agreement. If Buyer notifies Seller, in writing, on or before the AGREEMENT'TO SELL AND PURCHASE REAL ESTATE(CITY OF BozfmAN 1 EXERGY FRIEN DS Of,THE STORY MANSION)....................PACE 5 OF 16 Approval Date of Buyer's election to terminate this Agreement, this Agreement shall terminate and the parties hereto shall have no further obligations hereunder (except for obligations which are expressly intended to survive termination of this Agreement). If Buyer fails to notify Seller, in writing, on or before the Approval Date, of Buyer's election to terminate this Agreement, Buyer's right to terminate this Agreement under this Paragraph I I(a) shall expire. (b) Entry, Seller agrees to permit Buyer, and its agents and contractors, to enter onto the Land at all reasonable times for the purpose of conducting inspections and assessments prior to and during the Inspection Period. Seller agrees to provide reasonable assistance and cooperation to Buyer in the conduct of such activities. (c) Management Agreement. The obligation of Buyer to close the transaction contemplated by this Agreement is conditioned upon Buyer and Seller entering into an agreement at closing for the cooperative management and operation of the Land and the City Lot (Lot IA-2) ("Management Agreement"). The Management Agreement shall be substantially in the form set forth in Exhibit D attached hereto. (d) Financial Disclosure. The obligation of Seller to close the transaction contemplated by this Agreement is conditioned upon the Bozeman City Manager's reasonable satisfaction that Buyer has the financial and organizational capacity to restore the Property pursuant to the requirements of Section 17 and to preserve the Property after such restoration. Buyer and Seller acknowledge that satisfaction of this condition precedent may necessitate that certain of Buyer's major donors disclose private financial and other proprietary information to the City Manager. The parties agree to implement reasonable procedures to protect such information from subsequent disclosure. (e) Other Conditions Precedent. The obligations of Seller and Buyer to close the transaction contemplated by this Agreement are subject to the conditions that: (i) all of the representations and warranties of Seller and Buyer (as the case may be) contained in this Agreement are true and correct, in all material respects, at the date hereof and as of the Closing Date, and (ii) all of the obligations and duties of Seller and Buyer (as the case may be) to be performed hereunder have been timely and duly performed on or before the Closing Date, 13. Representations and Warranties. (a) Seller represents and warrants to Buyer, as of the Effective Date and again on the Closing Date,that: (i) Seller has fee simple title to the Property,and Seller has no knowledge of any person or entity with any right of first refusal, right of first offer, option or similar rights to acquire any interest in the Property or any part thereof. (ii) Neither the execution and delivery of this Agreement, nor the consummation by Seller of the transaction contemplated hereby, will result in a breach of any applicable statute or regulation, or of any administrative or court order or decree, nor conflict with or result in the breach of any term, provision, covenant or condition of any agreement or other instrument to which Seller is a party or by which it or the Property may be bound, or which with the giving of notice or lapse of time or both would constitute an event of default thereunder. AOREEMENT TO SELL ANDPURCILASE REAL.ESTATE(CITY OF BOzEmAN/EXERGY FRIENDS OF THE STORY MANSION} PAGE 6 OF 16 (iii) There is no action, suit, proceeding, or investigation pending, or to Seller's knowledge threatened, before any agency, court or other governmental or quasi-governmental authority that relates to Seller's ownership, maintenance or operation of the Property. (iv) Seller has received no notice of any violation of any building, fire, insurance, safety, health, environmental or other applicable laws, ordinances or regulations (whether related to the Property or the use and occupancy thereof). (v) No building or other improvement encroaches onto the Property,nor does any building or improvement that is part of the Property encroach on lands of others or any public or private road or right-of-way. The Carriage Douse encroaches into the side yard zoning setback. (vi) With respect to the environmental condition of the Property, Seller warrants and represents that: (A) Seller has not conducted, transported,generated, stored,treated, used or disposed of any Hazardous Substances (as defined below) at or from the Property in violation of any applicable environmental laws. Seller's representation in this subparagraph is made subject to the following exception: In 2009, during interior renovations of the Mansion, asbestos was identified and remediated by Seller in the floor beneath the second floor bathroom. The Seller did not conduct any further testing to determine whether any additional asbestos material is present in this location or the Property and the Seller makes no representations or warranties regarding the presence of asbestos in or on the Property; (B) To Seller's knowledge, the Property does not contain any Hazardous Substances in violation of any applicable environmental laws; (C) Seller has not received any notice of, and has no actual knowledge that, any administrative agency or other governmental authority or any employee or agent thereof has determined or alleged that there has been(or is investigating whether there is) a presence at,release or threat of release from,or placement on or in,the Property of any Hazardous Substances, or any generation, transportation,storage, treatment or disposal at or from the Property of any Hazardous Substance in violation of any applicable environmental laws; and (D) To Seller's knowledge,no underground storage tanks are located on the Property. "Hazardous Substances" as used herein means (1) any petroleum or petroleum products, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation, polychlorinated bipherlyls and radon gas and (2) any chemicals, materials or substances defined as or included in the definitions of "hazardous substances," "hazardous wastes," "restricted hazardous wastes," "toxic substances," "toxic pollutants," "bio-hazard," "biological waste," "medical waste" or words of similar import, under any applicable federal, state or local environmental, safety or health laws, ordinances, rules of common law,regulations or directives; (b) Buyer represents and warrants to Seller, as of the Effective Date and again on the Closing Date,that: AGRE4:MENT TO SELI.AND PURCHASE,REAL.ESTATE(CITY OF BozEmAN f 1 XFRGY FRIENDS OF THE STORY MANSION)......- .........PAGL 7 OF 16 (i) Buyer has all necessary power and authority to enter into this Agreement and to consummate all the transactions contemplated herein; (ii) Buyer is a qualified non-profit organization under law and will maintain such status during its ownership of the Property; (iii) This Agreement and all documents to be executed by Buyer and delivered to Seller hereunder (A) are and will be the legal, valid and binding obligations of Buyer, enforceable in accordance with their terms, (B) do not or will not contravene any provision of Buyer's organizational documents or any existing laws and regulations applicable to Buyer and (C) will not conflict with or result in a violation of any agreement, instrument, order, writ,judgment or decree to which Buyer is a party or is subject. (c) All of the representations and warranties of Seller and Buyer contained in this Section 13 are material,none shall merge into the deed herein provided for, and all shall survive the Closing Date or termination of this Agreement. 14. Operation of Property Pending Closing; Seller's Covenants. From and after the date of this Agreement through the Closing Date, Seller shall at Seller's expense: (a) Maintain the Property in the condition in which it existed as of the date of this Agreement, normal wear and tear excepted, free from construction liens or other claims for liens, not commit waste of or on the Property; (b) Keep in existence all fire and extended coverage insurance policies, and all public liability insurance policies that are in existence as of the date of this Agreement with respect to the Property; (c) Except for entering into agreements for rental of the Property subject to the Seller's existing procedures of which Buyer specifically agrees to accept pursuant to Section 5 not enter into any transaction with respect to or affecting the Property which would affect or bind Buyer following the Closing Date; (d) Not sell, encumber or grant any interest in the Property or the Offered Property (defined in Paragraph 17(a)), or any part thereof, in any form or manner whatsoever or otherwise perform or permit any act which would prevent Seller's full performance of its obligations hereunder; (e) Grant Buyer access to any records, documents, and agreements concerning the Property within Seller's possession or control; (f) Upon written notice from Buyer on or before closing, give appropriate notices of termination of Contracts designated by Buyer; and (g) Provide Buyer with any other relevant information with respect to the Property upon Buyer's reasonable request including contact information regarding the fire alarm monitoring equipment. AGRF',F.MFNT TO SFLL AND PURCHASE REAL ESTATE(CITY or BOZEWAN/EXERGY FRIENDS OF THE STORY MANSION).......................PAGE 8 OF 16 15. Risk of Loss. All loss or damage to the Property by any cause is assumed by Seller through the Closing Date. If any loss, casualty or other occurrence shall have taken place, whether or not covered by insurance, which has or could have a material adverse impact on the Property, then Buyer, at Buyer's option, shall have no obligation to complete the purchase of the Property on the Closing Date and shall be entitled to return of Buyer's earnest money deposit, if any, unless such loss or damage is fully repaired or restored on or before the Closing Date or, if not fully repaired or restored, is covered by insurance in an amount satisfactory to Buyer and the proceeds of such insurance are assigned or delivered to Buyer at closing. 16. Allocation of Responsibility, (a) Seller agrees to indemnify and hold Buyer, its successors, assigns and agents, harmless from any loss, damage, expense, liability, or claim, including without limitation, attorney's fees and expenses of litigation, to which Buyer may become subject arising, directly or indirectly, from: (i) Any falsity, omission or misstatement of the Seller with respect to the representations and warranties set forth in this Agreement; (ii) Any claim by any permittee or licensee of the Property in connection with any permit, or license attributed to periods prior to or on the Closing Date; and (iii) Any claim by any person arising from or attributable to any action which has occurred prior to or on the Closing Date. (b) Buyer agrees to indemnify and hold Seller, its officers and employees harmless from any loss, damage, expense, liability, or claim, including without limitation, attorney's fees and expenses of litigation, to which Seller may become subject arising, directly or indirectly, from: (i) Any falsity, omission or misstatement of the Buyer with respect to the representations and warranties set forth in this Agreement; (ii) Any claim by any pennittee, or licensee of the Property in connection with any of Buyer's actions after the Closing Date; and (iii) Any claim by any person arising from or attributable to any of Buyer's action which has occurred after the Closing Date. 17. Condition for Rehabilitation. The parties acknowledge and agree that Seller is selling the Property pursuant to its authority as a self-governing charter local government and the Seller's authority set forth in Section 2.06.870.D, Bozeman Municipal Code (Bozeman City Ordinance No. 1658, Section 1,Chapter 2.05.030.D (a copy of which is attached hereto as Exhibit E),pertaining to the sale of city-owned property containing a historically significant building. The provisions set forth in this Section are made to establish a condition attached to the transfer of the Property pursuant to this Agreement and to ensure compliance with the requirements of the Proposal and the Bozeman Municipal Code. (a) Definitions. Unless the context requires otherwise, the following definitions shall pertain throughout this Section 17 and in the interpretation thereof- AGRFEMEW To SELL AND PURCHAsi:REAL ESawrF,(CITY OF BozrmAN/PxT-.Roy FRIrNDSOF T14E STORY MANSION).....................PAGE 9 OF 16 (ii) "Expenditure Cap" means a total of $1,500,000 expended by Buyer and/or its successors and assigns for improvements to the Property. All amounts expended by Buyer and/or its successors and assigns for improvement of the Land, Improvements, or Appurtenant Rights shall added together in determining whether the Expenditure Cap has been met. Such amounts include but are not limited to the actual costs of- (A) preparation of architectural or engineering plans or drawings (whether or not the physical changes contemplated by such plans or drawings are actually made); (B) all required or reasonably necessary testing and analysis pertaining to the Work; (C) demolition and excavation; and (D) materials, labor, and services intended to effect a physical change in the Land, Improvements, or Appurtenant Rights. The Expenditure Cap shall also include the fair market value of any donated materials and supplies that are used in the completion of the Work, (ii) "Force Majeure" means any prevention, delay or stoppage due to strikes, lockouts, labor disputes, court orders, acts of God, inability to obtain labor or materials, unreasonable government restrictions, regulations or controls, hostile government action, unforeseen adverse economic circumstances that substantially impact Buyer or any of its major sponsors and contributors, civil commotion, fire or other casualty and other causes beyond the reasonable control of the Buyer, and it shall excuse Buyer's performance for a period equal to the duration of such prevention,delay or stoppage. (iii) "Target Completion Date" means the date that is the five (5) year anniversary of the Closing Date. (iv) "Work" means the work necessary to perform and complete rehabilitation in keeping with the architectural character of the Story Mansion and Carriage House of any two of the three following projects: (A) rehabilitation of the Story Mansion's second floor ("Second Floor Project"); (B) rehabilitation of the Story Mansion's third floor ("Third Floor Project ); and (C) rehabilitation of the Carriage House ("Carriage Project''). (b) Condition Subsequent for Restoration of Property. It shall be a condition of Seller's transfer of the Property to Buyer that Buyer shall, on or before the Target Completion Date(as it may be extended from time to time under Paragraph 17(c)),perform and complete the Work. The Work shall be performed and completed in a manner sensitive to the historic significance of the Property, in a good and workmanlike manner, and in accordance with all requirements of laws, ordinances,rules,regulations,codes,pen-nits,and lawful orders bearing on performance of the Work. The Work shall be deemed completed and the condition satisfied upon either of the following occurrences: (i) Buyer obtains one or more Certificates of Occupancy from the City of Bozeman, Building Division, evidencing completion and allowing occupancy of two of the following three projects: Second Floor Project, Third Floor Project, Carriage House Project. For avoidance of doubt, it is not necessary that the Buyer complete all three of the Projects in order to complete the Work and secure Seller's release of the condition set forth in this Paragraph 17(b); or (ii) Buyer and/or its successors and assigns have met the amount of the Expenditure Cap. AGREEMENT TO SELL AND PURCHAsf-,REAL ESTATE:(CITY OF BOZEMAN/ExFRGY FRiFNDs or THE STORY MANSION)...................PAcF 1 0 of 16 Upon satisfaction of the condition set forth in this Paragraph 17(b), Seller shall execute such documents as are reasonably required to clear the title of Buyer and its successors and assigns from the encumbrance of the condition and to release Seller's right of reversion described in Paragraph 17(f), (c) Extension of Target Completion Date. If prior to the Target Completion Date Buyer and/or its successors and assigns have expended at least fifty percent(50%) of the Expenditure Cap, the Target Completion Date shall be extended for an additional three (3) years. The Target Completion Date shall also be extended by(i) Force Majeure and (ii) by unreasonable delays caused by the Seller and/or other governmental bodies and agencies or other persons or entities having jurisdiction over the issuance of building permits and other approvals and consents (including but not limited to the consents of easement holders) that are required or advised for completion of the Work. (d) Right ref Access; Inspection. Seller and its authorized officials, agents, and employees may enter the Story Mansion and Carriage House at reasonable times to inspect the progress of the Work. Seller's right of access is conditioned upon Seller(i)giving Buyer at least seventy-two (72) hours advance notice of entry, and (ii) causing the least practicable interference to tenants,renters,and other legal occupants of the Land and Improvements. (e) Failure to Satisfy Condition Subsequent; Opportunity to Cure. If Buyer fails to satisfy the condition subsequent set out in Paragraph 17(b) above by the Target Completion Date, as extended pursuant to Paragraph 17(c) above, Seller shall give Buyer notice of non- compliance with the requirements of this Section 17. Seller's notice must assert and detail with reasonable specificity all instances of non-compliance with the requirements of this Section 17. If Seller's notice asserts failure to meet the Expenditure Cap, the notice shall itemize those expenditures that it contends should be disallowed from Buyer's calculation of the Expenditure Cap. Upon its receipt of such notice, Buyer shall have ninety (90) days within which to cure its non-compliance, provided, however, that if any noticed deficiency reasonably requires more than ninety (90) days to cure, Buyer shall have such time as is reasonably necessary to cure the deficiency so long as Buyer is proceeding diligently and in good faith to effect compliance, (f) Reversion to Seller. If Buyer fails to satisfy the condition subsequent set out in Paragraph 17(b) above by the Target Completion Date, as extended, and if Buyer, after receipt of Seller's notice of non-compliance, fails to cure the deficiencies within the time allotted in Paragraph 17(e), then the Property shall revert to the Seller. Upon such occurrence, Buyer shall execute and deliver to Seller such instrument(s) of conveyance, assigninent or transfer and take such other action as Seller may reasonably require in order to effectively convey, transfer and vest and put Seller in possession of the Property. Reversion of the Property to the Seller shall be Seller's sole remedy for failure by Buyer and/or its successors and assigns to satisfy the condition subsequent set out in Paragraph 17(b). Upon reversion, Buyer shall not be entitled to reimbursement or recovery from the Seller for the Purchase Price, Buyer's costs and expenses related to restoring,renovating or preserving the Property,or any other cost and expense incident or related to Buyer's ownership of the Property. 18. Subsequent Transfers; Covenants. (a) Subsequent Transfers—Preservation of Property;Reversion, Buyer agrees that, should Buyer subsequently sell or transfer the Property,it will require in the documents governing such sale or transfer that the subsequent purchaser or transferee preserve the Property in its present or AGREEMENTI-O SELL AND PURCIIASE REAL ESTATE(0TYOF BOZEMAN/ExERoy FRIENDS OF THE STORY MANSION)....................PAGE I I OF 16 rehabilitated state. In the event that the rehabilitation requirements set forth in Section 17 (Condition for Rehabilitation) have not been met and the Seller's reversionary interest has not been released as provided in Paragraph 17(b), the subsequent purchaser or transferee shall take the Property subject to the Seller's reversionary interest and all obligations of the Buyer as provided in Paragraph 17. (b) Covenants. Seller and Buyer agree to execute at closing, to be effective immediately subsequent to closing, covenants pertaining to the use of the Story Mansion's first floor as a Community Center, the preservation of the Story Mansion in its rehabilitated condition, and the use of the grounds surrounding the Story Mansion, including the present Story Park. The covenants, entitled"Declaration of Covenants,Conditions, and Restrictions for Block 3 of the Butte Addition to the City of Bozeman," shall be in the form attached hereto as Exhibit F. 19. Eights of First Offer. At closing Seller and Buyer agree to execute Right of First Offer Agreements substantially in the form attached hereto as Exhibits 6 and H. In one agreement Seller shall grant to Buyer a right of first offer to purchase Lot 1A-2 of the Second Amended Plat C-35H of Block 3 of the Butte Addition to the City of Bozeman("Story Park"), and in the other agreement Buyer grant to Seller a right of first offer to purchase the Property. Buyer may record the Right of First Offer Agreement pertaining to Story Park at Buyer's expense. Seller may record the Right of First Offer Agreement pertaining to the Property at Seller's expense. 20. Default; Remedies. (a) If Seller fails to close under the provisions of this Agreement because of Seller's default,then Buyer shall have as Buyer's sole and exclusive remedy the option of either of the following: (i) Terminating this Agreement by giving written notice to Seller; or (ii) Enforcing specific performance by Seller of Seller's obligations under this Agreement. (b) If Buyer fails to close under the provisions of this Agreement because of Buyer's default, Seller shall have as Seller's sole remedy the option of either of the following: (i) Terminating this Agreement by giving written notice to Buyer; or (ii) Enforcing specific performance by Buyer of Buyer's obligations under this Agreement.. (c) For all other breaches by a party of the express representations, warranties, and continuing obligations made or given in this Agreement, the other party shall have any and all remedies available to it in law or in equity. 21. Radon Disclosure Statement. Pursuant to the requirements of Mont. Code Ann. §75-3-506, Seller makes the following disclosure: RADON GAS: RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT, WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY PRESENT HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT EXCEED FEDERAL. GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN MONTANA. ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING MAY BE OBTAINED FROM YOUR COUNTY OR STATE PUBLIC HEALTH UNIT. AGREEMENT TO SELL AND PURCHASL"•'REAi,ESTATE:(CITY OF B07EMAN/BXERCY FRIENDS OF TIME STORY MANSION)..... PAGE 12 OF 16 By executing this Agreement, Buyer acknowledges receipt of this disclosure. 22. Lead Paint Warning and Disclosure Statement. (a) Disclosure. Every purchaser of any interest in residential real property on which a residential dwelling was built prior to 1978 is notified that such property may present exposure to lead from lead-based paint that may place young children at risk of developing lead poisoning. Lead poisoning in young children may produce permanent neurological damage, including learning disabilities, reduced intelligence quotient, behavioral problems, and impaired memory. Lead poisoning also poses a particular risk to pregnant women.A risk assessment or inspection for possible lead-based paint hazards is recommended prior to purchase, (b) Representation. Seller discloses to Buyer the existence of lead-based paint as detailed in the 2003 Architectural Assessment Report prepared by Comma-Q Architects, a copy of which Buyer has been provided by Seller. Seller represents that this report contains the only information known to it of lead-based paint. 23. Mold Disclosure. (a) Description; General Information. There are many types of mold. Inhabitable properties are not, and cannot be, constructed to exclude mold. Moisture is one of the most significant factors contributing to mold growth. Information about controlling mold growth may be available from your county extension agent or health department. Certain strains of mold may cause damage to property and may adversely affect the health of susceptible persons, including allergic reactions that may include skin, eye, nose, and throat irritation. Certain strains of mold may cause infections, particularly in individuals with suppressed immune systems. Some experts contend that certain strains of mold may cause serious and even life- threatening diseases. However, experts do not agree about the nature and extent of the health problems caused by mold or about the level of mold exposure that may cause health problems. The Centers for Disease Control and Prevention is studying the link between mold and serious health conditions. Seller cannot and does not represent or warrant the absence of mold. It is the Buyer's obligation to determine whether a mold problem is present. To do so, the Buyer should hire a qualified inspector and make any contract to purchase contingent upon the results of that inspection. A seller or seller's agent who provides this mold disclosure statement, provides for the disclosure of any prior testing and any subsequent mitigation or treatment for mold, and discloses any knowledge of mold is not liable in any action based on the presence of or propensity for mold in a building that is subject to any contract to purchase. (b) Disclosure. Seller discloses that the Property has mold present on it. This disclosure is made in recognition that all inhabitable properties contain mold, as defined by the Montana Mold Disclosure Act ("any mold, fungus, mildew, or spores"). Seller does not represent that a significant mold problem either exists or does not exist on the Property as such a determination may only be made by a qualified inspector. Seller has no knowledge of any testing for mold conducted on the Property. In addition, Seller discloses a mold assessment was conducted as part of the 2003 Architectural Assessment Report prepared by Comma-Q Architects a copy of which Buyer recognizes it has been provided by Seller and Seller further discloses that the Seller remediated to the extent reasonably feasible the mold condition identified in said report. AGREEMENT TO SELL AND PURCHASE REAL ESTAlE(CITY OF B07EMAN/EXERGY FRIENDS OF THE STORY MANSION) ....PAGE 13 OF 16 24. Megan's Law Disclosure. Pursuant to the provisions of Title 46, Chapter 23,Part 5 of the Montana Code Annotated, certain individuals are required to register their address with local law enforcement agencies as part of Montana's Sexual and Violent Offender Registration Act. In some 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 Montana Department of Justice in Helena, Montana, and the probation officers assigned to the area. 25. Noxious Weeds Disclosure. Buyers of property in Montana should be aware that some properties contain noxious weeds. Montana law requires owners of property within the 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 a county extension agent or the Weed Control Board. 26. Assignment. Except as otherwise provided herein, Buyer shall not assign Buyer's rights under this Agreement, in whole or in part.,without the prior written consent of the Seller, 27. Notices. Any notice, demand, request or other communication which either party hereto may be required or may desire to give under this Agreement shall be in writing and shall be deemed to have been properly given if(a) hand delivered (effective upon delivery), (b) mailed (effective three (3) days after mailing) by United States registered or certified mail, postage prepaid, return receipt requested, (c) sent by a nationally recognized overnight delivery service (effective one (1) day after delivery to such courier) or (d) sent by facsimile (effective upon confirmation of transmission), in each case,addressed as follows: IF TO BUYER: Exergy Friends of the Story Mansion c/o Exergy Integrated Systems 40 West 14th Street, Suite 4 Helena,Montana 59601 Fax: (208) 336-9431 IF TO SELLER: The City of Bozeman Attn: City Manager City Hall 121 North Rouse Avenue Bozeman,Montana 59715 Fax: (406) 582-2273 28. Brokerage Fees.Buyer and Seller represent that they have dealt with no brokers in connection with the Property or the transaction that is the subject matter of this Agreement. 29, Miscellaneous. (a) No Construction Against Drqfting Party. This Agreement shall not be construed more strictly against one party than against the other merely by virtue of the fact that the Agreement may have been prepared primarily by counsel for one of the parties, it being recognized both parties and/or their counsel have contributed substantially and materially to the preparation of this Agreement. AGREEMENT TO SELL AND PURCHASE REAL ESTATE(CITY OF BOZEMAN/EXER(,,y FRIENDS OF THE SJORYMANSION)...................PAGE 14 OF 16 (b) Time is of the Essence. Time of payment and performance shall be of the essence of each and every provision of this Agreement. (c) Attorney Fees. Should either party incur any costs or expenses, including reasonable attorney fees to include those of the Bozeman City Attorney, in enforcing any of the provisions of this Agreement, then the other or unsuccessful party shall reimburse the prevailing party on demand. (d) Enfire Agreement. This Agreement contains the entire agreement and understanding of the parties, and supersedes any and all prior negotiations and understandings, This Agreement shall not be modified, amended or changed in any respect except by a written document signed by all parties hereto. (e) Captions. The captions, titles and section headings throughout this Agreement are for convenience and reference only and shall not be deemed or held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement, nor to define,limit or describe the scope or intent of a particular section. (f) Successors and Assigns. The terms, covenants and conditions of this Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and assigns. (g) Nonwaiver. No waiver of any condition expressed in this Agreement shall be implied by any neglect of Buyer or Seller to enforce any remedy on account of the violation of such condition, whether or not such violation be continued or repeated subsequently, and no express waiver shall affect any condition other than the one specified in such waiver for the time and in the manner specifically stated. (h) Survival of Terms. All express representations, warranties, indemnities, and continuing obligations made in or given in this Agreement, including but not limited to those stated in Paragraphs 6(c), 9(c), and 29(c) and Sections 13, 16, 17, and 18will survive the closing of the purchase and sale transaction contemplated by this Agreement or the expiration or the termination of this Agreement for any reason, and such express representations, warranties, and continuing obligations shall not merge into the terms of any deed or other instrument of conveyance. (i) Governing Law. 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. {j) Counterparts; Facsimile. This Agreement (and any amendment hereto) may be executed in any number of counterparts, all of which when taken together will constitute one and the same instrument. A counterpart signed and delivered by facsimile transmission copy thereof or via electronic means in portable document format (.pdf) shall be as valid and effectual as the original of that counterpart. (k) Non-Discrimination. The parties agree to not discriminate in the fulfillment of this Agreement on the basis of race,color,religion,creed,sex, age,marital status,national origin, or actual or perceived sexual orientation,gender identity or disability. AGRFFMEN a TO Sa LL AND PURCHASE Rena.,FSTn aR(CITY OF B4 zrMAN/EXERGY FRiENr)s air ra-F STORY MANSION)..................PAGE 15 OF 16 IN WITNESS WHEREOF, the parties have executed this Agreement to Sell and Purchase Real Estate effective as of the date of the Seller's signature below. BUYER: ,2012 Exergy Friends of the Story Mansion I I - , by: its: a (j SELLER: 2012 City of Bozeman by: A its: (�*(Tv Hang4er Attached Exhibits: Exhibit A—Pedestrian Easement Exhibit B—Well Sharing Agreement Exhibit C—Pen-nits and Rental Agreements Assumed by Buyer Exhibit D—Park Management Agreement Exhibit E—Bozeman City Ordinance No. 1658 Exhibit F—Covenants, Conditions,and Restrictions Exhibit G—Right of First Offer—Lot I A-I Exhibit H—Right of First Offer—Lot I A-2 AGREEMENT TO SELL AND PURCHASE REAL ESTATE.(CITY OF BOZEMAN 1 ExEROY FRIENDS OF THE STORY MANSION)..................PAGE 16 OF 16 When Recorded Return To: EXHIBIT City of Bozeman Attn. Bozeman City Attorney A PO Box 1231 Bozeman, MT 59715 PEDESTRIAN ACCESS EASEMENT City of Bozeman, a Municipal Corporation of the State of Montana, with offices at 121 North Rouse Avenue, Bozeman, Montana 59715, GRANTOR, in consideration of one dollar ($1.00) and for other and valuable consideration, receipt of which is hereby acknowledged, grants to Exergy Friends of the Story Mansion, GRANTEE, a non-exclusive pedestrian easement, for ingress and egress to the Mansion Lot (defined below) and including the right to install and maintain pedestrian lighting in compliance with the requirements of Chapter 3 8 of the Bozeman Municipal Code, for the use of the GRANTEE, its members, tenants, occupants, and invitees, in, through, and across a twelve-foot (12') wide strip of land situated in Gallatin County, Montana, which is located on the following described property(the"Park Lot"): Lot IA-2 of the Second Amended Plat of Block 3 of the Butte Addition to the City of Bozeman, Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the Clerk and Recorder of Gallatin County, Montana [Plat C-3511] The location and dimensions of the casement are more particularly described on the attached Exhibit A, which by this reference is made a part hereof. The easement across the Park Lot, the servient tenement, is created for the benefit of Lot IA-1 of the Second Amended Plat of Block 3 of the Butte Addition to the City of Bozeman (the "Mansion Lot"), the dominant tenement. The GRANTEE agrees: (1) To maintain the sidewalk situated within the easement area at its own expense in accordance with relevant City Ordinances, including, but not limited to, snow removal Pagel of and all major and minor repair work. (2) To allow the City to make any and all inspections of the sidewalk and land appurtenant thereto as the City reasonably deems necessary. The GRANTOR warrants that it is lawfully seized and possessed of the real property described above, that it has a lawful right to convey the property, or any part of it, and that it will forever defend the title to this property against the claims of all persons. The GRANTOR further agrees that the GRANTEE may peaceably hold and enjoy the rights and privileges herein granted without any interruption by the GRANTOR. The terms, covenants and provisions of this casement shall extend to and be binding upon the administrators, legal representatives, successors and assigns of the parties hereto. DATED this day of_, 2012. GRANTOR: CITY OF BOZEMAN by Chris A. Kukulski City Manager ATTEST: City Clerk Page 2 of 3 STATE OF MONTANA ) ) ss. County of Gallatin On this day of 20_, before me, a Notary Public for the State of Montana, personally appeared CHRIS A. KUKULSKI and STACY ULMEN, known to me to be the City Manager and City Clerk for the City of Bozeman and the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same for and on behalf of the City of Bozeman. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal on the day and year first above written. (SEAL) Notary Public for the State of Montana (Printed Name) Residing at Bozeman, Montana My Commission Expires: —/—/20 Page 3 of 3 +]C>L.]t—MC33E slrT MH�Ir (do'�wD EAST 28,154` Pam Or uEGRa" i� LOT 1A-2 x S as-68'49° 22021' t[7 rnl ' c . EASEWNr 'S 018 w � �. 6 " GI LOT 1.A-1 rhKUWT u7 M w am?- W n ao.te` 0) ry i� '4 V) is~ r: "�+ I Edt15�ING I � �' GgRRlkl _ HOLISE - I I isc.ov L _J rsssa' N 89`59'50" t^/ 283.51' (VIt.W) Centertine Description of U-foot Wide Pedestrian Access Easement Beginning at the northeast corner of Block 3,Butte Addition Scale: 1"= 50' to the City of Bozeman,Gallatin County,Montana;thence South 00101'09"West along the east line of said Block 3 a o 25' Sa` distance of 144 feet more or less to the center of an existing 5•1oot wide concrete sidewalk,the beginning of the easement}thence westerly along the centertine of said Exhibit A concrete sidewalk across Lot 1A-2 of the Second Amended Pedestrian Access Easement Flat of Block 3 of Butte Addition to the City of Bozeman a distance of 64 feet more or less to vast line of sold Lot 1A-2, C the end of the easement. ltgr of Bozeman Engineering Office Jan. 2012 EXHIBIT When Recorded Return To: City of Bozeman Attn: Bozeman City Attorney PO Box 1231 Bozeman,MT 59715 WELL SHARING AGREEMENT THIS AGREEMENT is made this day of_, 2012, by the City of Bozeman, Montana, a self-governing municipal government (hereinafter referred to as the "City") and Exergy Friends of the Story Mansion, a Montana non-profit corporation, c/o Exergy Integrated Systems, 40 West 14th Street, Suite 4A, Helena, Montana 59601 (hereinafter referred to as "EFSM"), The City and EFSM may be referred to hereinafter each as a'jj art Y'and both as the' arties". WHEREAS, The City is the owner of real property known as Story Park legally described as Lot IA-2 of the Second Amended Plat of Block 3 of the Butte Addition to the City of Bozeman, Gallatin County,Montana,according to the official plat thereof on file and of record in the office of the Clerk and Recorder of Gallatin County,Montana [Plat C-3 5111 (the"Park Lot"); WHEREAS, EFSM is the owner of real property known as the Story Mansion legally described as Lot IA-1 of the Second Amended Plat of Block 3 of the Butte Addition to the City of Bozeman, Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the Clerk and Recorder of Gallatin County,Montana [Plat C-35H] (the"Mansion Lot"); WHEREAS, the Mansion Lot is improved with a water well (the"North Well") located as shown on the attached Exhibit A. Water is diverted and used from the North Well pursuant to a water right evidenced by Montana Ground Water Certificate 41H 30041507, The North Well and its installed pump, pipelines, and other water distribution works, as they may be modified from time to time, are hereinafter referred to as the"Water Well System"; WHEREAS, the parties desire to share the Water Well System and the water that it produces for the purpose of irrigating lawns and landscaping situated on the Park Lot and Mansion Lot, The parties desire to assure the continuous and satisfactory operation and maintenance of the Water Well System for the benefit of the present and future owners of the Park Lot and Mansion Lot; WHEREAS, the City desires to acquire, and ESFM is willing to grant, an easement upon the Mansion Lot for the construction, operation, and maintenance of a buried pipeline conveying water from the North Well to the Park Lot, WHEREAS, this Agreement is established for the purposes of memorializing the parties' respective rights and obligations pertaining to the Water Well System. NOW THEREFORE, in consideration of the promises and covenants herein contained, the parties agree that the Water Well System is to be used by the parties to this Agreement, as well as by all future owners and occupants of the Park Lot and Mansion Lot,upon the following terms and conditions: Well Sharing Agreement Page 1 of 1. Sharing of Well Water System. to this Agreement is terminated as hereinafter provided, the parties shall jointly share and use the water drawn from the North Well and conveyed through the Water Well System, which shall include all necessary equipment and fixtures necessary to operate the North Well such as pipes, pipelines, electrical lines, electrical supply, pumps, well parts, distribution lines, etc., exclusively for the irrigation of lawn and landscaping on the Park Lot and Mansion Lot, For avoidance of doubt this Agreement does not pertain to another well, known as the"'South Well", located on the Mansion Lot. 2. Maintenance and Repair. (a) Each of the parties hereby shall reasonably and promptly repair, maintain, and replace any and all water pipes or mains serving only its Lot at its own expense. The City shall be responsible for the repair, maintenance, and replacement, as necessary, of the pipeline running from the North Well to the Park Lot through the easement area described and depicted in Exhibit A. (b) Each party agrees to repair any major leaks or ruptures on or in that portion of the Water Well System situated on its lot, or on any easement serving its lot, in a timely fashion. Should the other party have to assume this responsibility, either a result of the affected party's neglect or in an emergency, the affected party agrees to compensate the repairing party upon demand for its reasonable costs and expenses. 3. Costs and Expenses; Consent, (a) Cost Sharing. The parties shall each pay an equal share of all expenses for the operation and routine maintenance of the Water Well System, including but not limited to the cost of utilities necessary for reasonable pumping, seasonal startup and shutdown, inspection and testing, and the like. The parties shall also each pay an equal share of reasonably necessary costs for the repair or replacement of all shared portions of the Water Well System. Each party shall be responsible for all expenses incurred for the maintenance, repair or replacement of those portions of the Water Well System serving only its lot. (b) Electric Power Supply. EFSM agrees to supply electric power to the North Well, subject to reimbursement of a portion of its costs as provided in this paragraph. The parties acknowledge that electric power usage for the Water Well System is metered on the Mansion Lot, arid the energy costs will appear on EFSM's monthly electric bill. EFSM shall periodically, but at least annually, invoice the City for one-half of the energy cost reasonably attributed to pumping costs. If any such payment remains unpaid for a period of thirty (30) days, EFSM may terminate the supply of water to the City until all arrearages in payment are received by EFSM. (c) Costs Associated with Existing Improvements. Except as otherwise provided herein, the cost of any removal, repair or replacement of pre-existing site improvements on an individual lot (i) necessary for Water Well System installation, operation, maintenance, replacement,improvements,inspection or testing,or(ii)damaged as a result of operation, maintenance or repair of the Water Well System, will be borne by the owner of the affected lot. Notwithstanding the foregoing sentence, the City will be financially responsible for repair or replacement of existing site improvements on the Mansion Lot that are within the easement area delineated on Exhibit A and that are damaged as a result of the City's installation, operation, maintenance, repair, or replacement of a pipeline serving the Park Lot. Well Sharing Agreement Page 2 of 6 (d) Consent. The consent of both the Park Lot owner and the Mansion Lot owner to pay a proportionate share of costs shall be secured prior to embarking upon expenditures for extraordinary maintenance and repair or for replacement and improvements to the Water Well System, except in emergency situations. The parties shall not unreasonably withhold or unnecessarily delay said consent. Prior consent shall not be required prior to making expenditures for minor repairs and routine maintenance, such as maintenance attendant to seasonal startup and shutdown of the Water Well System, 4. Use, Restrictions on Use. (a) Irrigation Use. Each of the parties agrees not to do anything that might contaminate, unreasonably strain, or cause waste to the Water Well System. Each of the parties agrees to use only as much water as is reasonably needed for the irrigation of lawn and landscaping on their respective lots. The parties shall share the water supplied by the Water Well System, in proportion to relative irrigation demands of their lots, taking into account other supplemental water sources supplying distribution and irrigation systems on the property.Neither party shall waste water, (b) Compliance with Law.Each of the parties shall beneficially use the water supplied by the Water Well System in full compliance with applicable law. (c) Emergency Access. Each party shall have the right to act to correct an emergency situation and shall have access to the pertinent lot in the absence of the other. An emergency situation shall be defined as the failure of any shared portion of the Water Well System to deliver water upon demand, (d) Inspection and Testing. Each of the parties shall permit periodic inspection of the North Well and well water sampling and testing by a responsible authority at the request of the other party or as required by law. The parties shall share equally the cost of reasonable inspection and testing. (e) No Warranties. No lot owner guarantees, warrants or makes any representation whatsoever regarding the quality or quantity of water delivered through the Water Well System to any other lot. 5. Grant of Pipeline Easement. (a) Easement Grant, For valuable consideration, the receipt of which EFSM hereby acknowledges, EFSM hereby grants to the City a non-exclusive easement encumbering the Mansion Lot for the purpose of installing, operating, and maintaining a buried water pipeline to be tied to the Water Well System and for access to the North Well consistent with the purposes of the Agreement. The easement shall run with the land, subject to its termination as provided herein. The dominant estate is the Park Lot, and the servient estate is the Mansion Lot. (b) Location and Dimensions. The easement shall be located and have the dimensions as shown and described on Exhibit A (under"North Well Easement Description"),which is attached hereto and incorporated by this reference, Well Sharing Agreement Page 3 of 6 (c) Use. The City may use the easement area for location, installation, reinstallation, operation, maintenance, repair, and inspection of the buried water pipeline,which in turn may be used for conveying water from the North Well to the Park Lot pursuant to the provisions of this Agreement, The City may also use the easement to access the North Well for the purpose of exercising its rights and fulfilling its responsibilities under this Agreement. (d) Duration and Termination ref f Easement. The easement granted herein shall terminate upon the City's termination of this Agreement and disconnection of the pipeline servicing the Park Lot from the Water Well System. Upon such occurrence, all easement rights of the City and its successors and assigns created under this Agreement shall cease. Upon termination of the easement, the City shall, at the Mansion Lot owner's request and expense, execute and deliver to the Mansion Lot owner a recordable document evidencing termination of the encumbrance of the easement. 6. Term and Termination,The term of this Agreement shall be perpetual, subject to termination as provided in this Section 6. The Agreement shall terminate upon the earliest of the following occurrences: (i)the North Well shall no longer supply water in a quantity and of a quality suitable for the economic irrigation of lawns and landscaping situated on both the Mansion Lot and Park Lot,taking into account the contribution of supplemental water sources to the irrigation systern(s) serving the lots; or (ii) when the cost of operating and maintaining the Water Well System exceeds the cost of obtaining water from other sources; or (iii) the City, or its successors in interest, elects to terminate its participation in the sharing of the North Well and the shared portions of the Water Well System. Upon termination, the City shall disconnect the pipeline servicing the Park Lot from the Water Well System, and neither the City,nor its successors, shall have any further right to the use of the North Well or those portions of the Water Well System existing on the Mansion Lot. The City may remove its buried pipeline from the Mansion Lot, provided that it repairs all damages occasioned by removal. The parties acknowledge and agree that, subject to the rights created in this Agreement for the benefit of the City, EFSM presently holds all right, title,and interest in and to the North Well, that portion of the Water Well System located on the Mansion Lot, and the Water Right, and, upon termination of this Agreement, all right, title, and interest in and to such property shall remain and reside solely with the owner of the Mansion Lot. Accordingly, the City agrees that, upon termination and at the request of the Mansion Lot owner, it will execute a recordable document clearing the Mansion Lot from the encumbrance of this Agreement. 7. Miscellaneous. (a) Binding Effect, Except as expressly provided otherwise herein, the terms, covenants, and conditions contained in this Agreement shall run with the land and bind the Mansion Lot and Park Lot and shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors, and assigns. (b) Equitable Remedies Allowed.The parties recognize that damages or other legal remedies may not be adequate for a breach of this Agreement. Therefore a party enforcing any of the terms of this Agreement shall be entitled to the remedies of injunctive relief and specific performance in addition to other remedies allowed at law or equity. (c) Attorney's Fees. In any legal or equitable proceeding for the enforcement of this Agreement, whether it be an action for damages,declaratory relief or injunctive relief, or any other action, the losing party or parties shall pay the costs and attorney's fees of the prevailing party or Well Sharing Agreement Page 4 of 6 parties, in such reasonable amount as shall be fixed by the court in such proceedings or in a separate action brought for that purpose. In proceedings in which the City of Bozeman is the prevailing party, such fees shall include the costs and salary of the Bozeman City Attorney reasonably allocated to the enforcement action, (d) Entire Agreement. This Agreement constitutes the entire understanding among the parties with respect to the subject matter thereof and supersedes all negotiations, representations, prior discussion, and preliminary agreements among the parties hereto relating to the subject matter of this Agreement. (e) Captions. The captions, titles, and section headings throughout this Agreement are for convenience and reference only and shall not be deemed or held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement,nor to define,limit or describe the scope or intent of a particular section. (f) Recording. Either party may record this Agreement in the records of Gallatin County, Montana. IN WITNESS WHEREOF, The parties have caused this Well Sharing Agreement to be made and executed as of the date set forth at the head of this instrument. Exergy Friends of the Story Mansion by: its: City of Bozeman by: its: Well Sharing Agreement Page 5 of 6 ACKNOWLEDGEMENTS STATE OF MONTANA M County of Gallatin This instrument was acknowledged before me on 2012,by as of Exergy Friends of the Story Mansion, a Montana nonprofit corporation. Printed Name: NOTARY PUBLIC for the State of Montana RESIDING AT Montana [Seal] My Commission Expires 20 STATE OF MONTANA County of Gallatin This instrument was acknowledged before me on 2012,by as of the City of Bozeman,a self-governing Montana local government. Printed Name: NOTARY PUBLIC for the State of Montana RESIDING AT Montana [Seal] My Commission Expires 20 Well Sharing Agreement Page 6 of 4 Iccx!o» s'antxa�..a�-r e kSr 2 3.54 LOT 1A-2 S Se'Sa'+16"E 370.21' N F AB �a `o, r_ WRL � °trsr�az`t i LOT 1.A-1 r<7 Fa m 4"59.48 w O ^!� 7a.be` 4 0 VI Q�w WELL I— 17105rrrc — 1 I 1 P 150.03' L.--_--.J r3ass' N 89'59'50" W 28161` x�s�oxwr s�a$�7¢' f w•Rls1 North 1,611 F�ifc�tt=t Description �_� F1L ]] S�MENT AREA + Beginnong of the northwest corner of Block 3, Butte Addition to the City of Sozemon, Gallatin County, Montana; Ihence S 00' 01' 57"W a distance of 83,87 feet; thence S 89° 58'49'E atong the north line of Lot 4,n-1 of the Second Amended Pkot of Block 3 of saki Butte A:ddlion o distance of$1-28 tent to the iruo paW of beglrWngl thence S 00" DI' 57"W a distance of 30.11 feet. thence S 88' 58' 49" E a dtetanco of Moo feet;thence N oo` o1. 57'E a dtntonoe of 30.11 feet; thence N 89' 'SW Scale_ 1'"_.5o' 49" w o distance of 45.00 feet to the true point of beginning. 0..__.....25 50' Exhibit A Well Access Easements Clb of SS=EWflerefiflg Cabs Web 2012 co 4:0 U(n l t� 00 M Ln co tn r, H M H Ln Ln r� P, OD 00 Ln M -I rq m 1-4 N (n Ln N 'o 'n P, V) H r� rl LM Ln m H m 14 H r, m CA LD M 00 co N m in to rf`y E t' Ln e N r4 M m a) C) m �44' �I F� vo :� r� Ln r, Ln Ln F-: ra m E F,: co 10 Lo E 43 Ln cn N E F-: (n .5 o E Ln m (n Ln E co m E co cu lu 0 m m 0 'n E LO ro co E E 0, p 0 CD X Co 'CU M N u co E E m m al 0 0 1 c 41 w ro 0 o Ln m 0 Co E > rn fn - 2 E E 0 m m E 0 0 0 o 9, E in W CL ai :3 c a- E < > r cu CO tu C: c L) 2 C� 'Im, w p D Z) ai E ru n E 0 tu) 0 m m u aj WN E C4 O (u cu Ln < wlu LIP .3 04:1 ;2i V S Ln 4r m E u m W C:� no -M UOD- lu co rq C, 0 2 0 'n 'n H 00 N Ln H M M Ln 0 H r-f M M < m rq m ol: M" r44, I A U> N CO 'n rn 2 21 1 H eq H M M LO cc r, m Do r- -ct N m m 4 fq 00 kn r u Ln w m + OD H 0 Ln �r Ln N rq n C�) Ul rq a, m r, N tn Ln ca 00 C) m m Ln rN . . . 05 a, CIA " m N co m 00 N ko 0) C,4 �q Ln m W " M m m@@ f 9 co s N 0 m m LO N N %r L9 T cp T m N op to w w Ln u cn ,b r4. 6 A m CD en m 6 6 m 00 C> m r� 0 cn 00 m to �q M C) m V) ;r al CR lll� co Lo rs a) Ln Ln Ln ry Ln Ln W rq IN,00 U:) N r, Ln LA Ln to m C* Ln Ln uL a) 0 m rL w d) ro "D 0 w E 'Fu t2 = , aj 0 lu WW m 0 0 GJ M 0 cu m ai U r= ME ami E w E aj ca ca �5 E m 9 , u E cu w 01 0 " — "0 .0 C C , m w E cu -C r- a a c 0 a c m - >, m lu m 0 m w m w m ci 0 u m CU z a- bd 'n M u — rc (n co Zr < 3 - 0 m Ln ra rJ to © 0 14 m U) rq C C) q I g CD 0 0 Ln C) c3 u t,o rn N W Ul M m r, '1 00 0 Ln Ln 0 a r, LD H c 0 0 41'k 0 0 C) al 0 0 0� 0 cc qo qo 8 Ln g 0 0 cs 1 0 66666 Ln N Ln vv-VI, CD, Ln a in d o o m o rq 0 0440 a 0 0 -V�- Ln I-i N -4 N o Ln Ln , m o m Ln -4 Ln in Ln Ln 0 Vk V} AA- IA. fn In Vk 4A in in lfk -kn V vl} 11k V). -4 PT 47>41k V'J- cu ai OL 0 0 ai rx w u cc G cu w 0i a r CJ 0 o C3 a m m W m bO on bb m bo tW bD W m a tw 12 ;E Po M :5 c fli m (u w cu u o Lf 0 0 < cwr Ln w ic u E ci E I a CL ci d OL CL r-4 CL CL CL r-I rl �4 P: d �t 1-1 g cl It -;t q 6 I j CL ci r-I H ;r 0 CL C, Ci Ci E H rl ci m q rl E 0 . . H 9 9 E E 0 IV .-• I - M M M I M m m m . M M M M M w Ln m m Lo Ln Ln a) �q Ln Ln (mn M Ln M M m m m <n Ln cn�C) m Ln cn Kn w m m r1l N H t4l C*4 N N N N r4 N V4 N N N r'J rq rN r4 cj r-4 " rq r-i r-i r-4 N w N OYT H H 14 1.4 H el r-I VA ­4 rl 14 Cc-, CD 0 0 CS 0 C) 0 C� 0 C) CD Z) 0 H H H C, N I Iq N 1-4 N ,,I N N iz� - - -- Z S �� r- co r-I Zr eq to EXHIBIT AGREEMENT FOR'THE MAINTENANCE OF STORY PARK This agreement is made this day of , 2012, between the CITY OF BOZEMAN, a self-governing Montana local government, with an address of 121 N. Rouse Ave., Bozeman, MT 59715 (hereinafter referred to as the "City") and EXERCY FRIENDS OF THE STORY MANSION, a Montana non-profit corporation, c/o Exergy Integrated Systems, 40 West l4th Street, Suite 4A, Helena,Montana 59601 (hereinafter referred to as "EFSM"). In consideration of the mutual promises and valuable consideration described herein, the receipt and sufficiency of which are hereby acknowledged, the City and EFSM agree as follows: 1. Purpose and Intent. a. The City owns real property Iegally described as Lot Al-2 of the Second Amended Plat of the Butte Addition to the City of Bozeman ("Story Park") and real property legally described as Lot IA-1 of the Second Amended Plat of the Butte Addition to the City of Bozeman("Story Mansion"). b. On , 2012 the City and EFSM entered into a Purchase and Sale Agreement for the sale of the Story Mansion by the City to EFSM. c. The Story Park is immediately adjacent to the Story Mansion, and the historic character and functionality of each property is related to the other. d. The parties consider shared maintenance of the Story Park and Story Mansion to be in their best interest to minimize casts, ensure continuity of service, and to enhance the historical integrity and appearance of the Story Mansion and Story Park. e. The City and EFSM desire to enter into this Agreement to memorialize, upon transfer of the Story Mansion property to EFSM, EFSM's specific duties regarding maintenance of Story Parr on behalf of the City and the City's duties to reimburse EFSM for its costs associated with maintaining Story Park, 2. Maintenance of Stork Park. EFSM shall maintain Story Park pursuant to the following requirements and may contract to provide any of the maintenance described herein. a. Irrigation System. i. The Parties recognize that as of the date of this Agreement the following conditions exist; I. An underground automatic irrigation system is not present on either the Story Mansion grounds or Story Park grounds, 2. The City historically irrigated the lawn and landscaping on both the Story Mansion grounds and the Story Park grounds manually using two existing wells; 3. The southernmost well ("South Well") of the two existing wells does not produce water in sufficient quantities to be of use in an irrigation system; AGREEMENT FOR THE MAINTENANCE of STORY PARK Page 1 ol'6 4. The northernmost well ("North Well") may not provide an adequate flow of water to supply the amount of water necessary to adequately irrigate both the Story Mansion and the Story Park. ii. Prior to August 1, 2012, EFSM shall work with the City to design, fund, and install an underground irrigation system on the Story Mansion and Story Park. EFSM shall be the contracting party and the City shall reimburse EFSM for the agreed upon costs of installation of the underground irrigation system on the Story Park. EFSM shall coordinate selection of contractor(s), estimation of costs, design, and construction scheduling with the City and shall obtain no less than three written quotes for the installation. The irrigation system shall be connected to the North Well and, if determined necessary by the parties at the time of installation of the irrigation system, to the City's municipal water system to allow for municipal water to serve as a backup to the North Well or as the primary source of water for the irrigation system. b. Grounds Maintenance. EFSM shall maintain the grounds of the Story Park in a professional manner by, at a minimum: i. Providing grass cutting, fertilization, and weed control services on the Story Park to maintaining a healthy turf at no more than three inches deep. ii. Removing snow on the perimeter sidewalks of the Story Park pursuant to the timing and snow accumulation requirements of the Bozeman Municipal Code. iii. Removing fallen leaves every autumn on the Story Park in accordance with the City's collection schedule as established for the neighborhood by the City Streets Division. c. Landscaping: EFSM shall maintain all existing landscaping on the Story Park through pruning, weed control, fertilizing, or other necessary maintenance actions. The City may install any landscaping on the Story Park at the City's sole expense. Once installed, EFSM shall assume the maintenance of the landscaping and may invoice the City for the costs of such pursuant to Section 3, below. The City shall inform EFSM prior to the installation of any additional landscaping. Alterations to the irrigation system by the City to accommodate future landscaping and the costs of such alterations shall be solely the responsibility of the City. d. Fences/other structures on the Story Park: The City may install any features on the Story Park consistent with park purposes and in compliance with covenants affecting the property. e. Maintenance Not Covered by this A rBement. EFSM, on its own or through its contractors, may inform the City that maintenance of the Story Park not covered by this Agreement would benefit the Story Park. In such a case, EFSM or the contractor shall inform the City in writing and receive written authorization from the City prior to conducting the additional maintenance. The City shall be AGREEMENT FOR THE MAINTENANCE OF STORY PARK Page 2 of 6 responsible for all costs of the additional maintenance. The City may agree to such additional maintenance through a written agreement, including email from the Director of Parks and Recreation or Parks Superintendant, the performance of which shall be subject to and become a part of this Agreement. 3. Reimbursement by the City to EFS1vI. EFSM shall submit periodic, but at least quarterly, statements for services rendered pursuant to this Agreement. Only those expenses specifically identified for payment under this Agreement are reimbursable. EFSM shall include a copy of invoices from a contractor, if applicable. The City shall make payment within thirty(30) days of receipt of the invoice. 4. Term. The term of this Agreement shall be five (5) years from the date of execution of this Agreement by both parties. This Agreement maybe extended for additional five year terms as agreed upon in writing by the parties. 5. Ownership of Park Fixtures and Infrastructure. The City shall own all park fixtures and infrastructure lying within Story Park, including the irrigation system referenced in Section 1, whether existing or installed pursuant to this Agreement or after the date of this Agreement. The City shall be solely responsible for the costs associated with the maintenance of said infrastructure, 6. City Authority to Ensure Park Maintenance. Notwithstanding the provisions of this Agreement, the City shall have the authority to ensure all maintenance conducted on the Story Park meets City standards, as outlined within the City's Park Design and Maintenance Standards. EFSM agrees that should the City inform EFSM that additional maintenance or improved maintenance is required on Story Park, EFSM shall require its contractors to perform such maintenance to the satisfaction of the City. The City may conduct any maintenance of the Story Park on its own regardless of whether such maintenance is included as a responsibility of EFSM. 7. Indemnification. The parties agree to indemnify and hold each other, their employees, directors, and agents (except contractors and subcontractors hired by EFSM to perform maintenance of the Story Park) harmless against any and all liability, losses or damages or any expenses whatsoever to the City as a result of any claims, demands, damages, costs or judgments against it including, without limitation, personal injury, death, property damage, loss of use, and attorney's fees that may arise in connection with or as a result of fulfilling the each party's obligations under this Agreement. 8. Insurance. a. Contractors Must Provide Indemnification to City. EFSM shall require every contractor or subcontractor contracted by EFSM to provide maintenance of Story Park to indemnify and hold the City of Bozeman, its officers, agents, and employees harmless for its acts or omissions related to its contracted maintenance responsibilities. AGREEMENT FOR THE MAINTENANCE OF STORY PARK Page 3 of 6 b. Contractors Must Provide Insurance to City. HFSM shall require every contractor or subcontractor contracted to provide maintenance of Story Park to secure insurance coverage acceptable to the City and furnish to the City an accompanying certificate of insurance issued by a company authorized to do business in the State of Montana for the following and in amounts not less than: a Workers' Compensation—statutory. 0 Employers' Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate. 0 Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate. 0 Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000 annual aggregate. 0 Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The City of Bozeman, its officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non-contributory basis on both the Commercial General and Automobile Liability policies. The insurance must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. The City must approve all insurance coverage and certificates of insurance prior to the contractor/subcontractor commencing work and the contractor/subcontractor shall supply the City with any policies or endorsement documents the City deems necessary to ensure compliance with this section. 9. Remedies in Case of Breach: Should either party assert the other is in breach of any obligation under this Agreement the party asserting a breach must inform the other in writing of the alleged breach and provide the accused party with 30 days to cure the alleged breach. If the party alleging a breach determines the cure is inadequate that party may seek redress through any means available at law or in equity. 10. Attorney Fees: That in the event it becomes necessary for either party of this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement the prevailing party or the party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel to include the Bozeman City Attorney. 11. Termination of Aueement. This Agreement shall continue in full force in effect until all obligations of the parties or any successor in interest have been satisfied. A party may terminate this agreement in writing with no less than 90 days notice to the other party, 12.No Warranty: Nothing in this Agreement shall be construed to create an express or implied warranty in the condition of any shared infrastructure or utility lines or in the condition of any infrastructure or utilities located within the Story Park. AGREEMENT FOR THE MAINTENANCE OF STORY PARK Page 4 of 6 13. Non-Discrimination, The parties shall not discriminate in the fulfillment of this Agreement on the basis of race, color religion, creed, sex, age, marital status, native origin, or actual or perceived sexual orientation, gender identity disability. EFSM agrees this requirement shall apply to all its contracts and subcontracts for the maintenance of the Story Park, 14. Notice: If either party is required to give notice under this Agreement to the other party for non-emergency circumstances, the parties shall provide such notice as follows. All such notices shall be in writing and shall be delivered personally or sent by certified mail, return receipt requested, to the addresses set fortli. below. All notices shall be deemed effective at the time of personal delivery or three (3) days after deposit in the U.S. Mail, postage prepaid. City of Bozeman Attn: Thom White Parks and Cemetery Superintendent 406-582-3224 P.O. Box 1230 Bozeman, MT 59715 Exergy Friends of the Story Mansion, Inc. c/o Exergy Integrated Systems 40 West 14th Street, Suite 4A Helena, Montana 59601 Fax: (208) 336-9431 15. Public Document: The parties agree this document is a public record under the laws of the State of Montana and neither party has any expectation of privacy, business secrets, trade secrets,or other property interest in the contents herein. 16. Entire Agreement: This written Agreement contains the entire understanding between the parties hereto in connection with the subject matter and it supersedes and replaces any and all prior negotiations, agreements and representations, whether oral or written. The parties acknowledges that neither party,nor any agent or attorney of any of either party, has made any promises, representations or warranties whatsoever, express or implied, not contained herein, concerning the subject matter hereto, to induce each other to execute this Agreement,and both parties acknowledge that they have not executed this Agreement in reliance upon any promises,representations, or warranties not contained herein. EFSM farther acknowledges that it has had a full and complete opportunity to independently investigate all facts material hereto,and has done so. 17.Amendment/Modification: That any amendment or modification of this Agreement or any provisions herein shall be made in writing or executed in the same manner as this original document and shall after execution become a part of this Agreement. 18. lateMretation,and Construction. This Agreement has been jointly drafted and/or reviewed by the parties hereto following negotiations between them. It shall be construed according AGREEMENT FOP,THE MAINTENANCE OF STORY PARK Page 5 of 6 to the fair intent of the language as a whole, and not for or against either of the parties. 19. Independent Review/Authority to Sign: The parties acknowledge that they have been advised by independent legal counsel, not retained or paid by the other, regarding this Agreement, and have entered it freely, without duress or coercion. Each party represents to the other that the person signing below on its behalf has authority to bind their respective entities to this Agreement. 20. Condition Precedent,• Effective Date. It is a condition of each party's obligation to perform under this Agreement that the City and EFSM close a transaction transferring ownership of the Story Mansion from the City to EFSM. The effective date of this Agreement shall be the date of such transfer. 21. Miscellaneous. a. Time isof the essence on all undertakings. b. A waiver by either party any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party's right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. c. This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. d. This Agreement shall be construed under the laws of the State of Montana. IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year recognized below. CITY OF BOZEMAN Chris A. Kukulski, City Manager Attest: Approved as to Form Stacy Ulmen, CMC Greg Sullivan, City Attorney City Clerk EXERGY FRIENDS OF THE STORY MANSION AGREEMENT FOR THE MAINTENANCE OF STORY PARK Page 6 of 6 EXHIBIT' ORDINANCE NO, 1658 AN' ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA PROVIDING THAT THE BOZEMAN MUNICIPAL CODE BEAMENDED BY ADDING CHAPTER 2.05 PERTAINING TO ACQUISITION AND TRANSFER OF CITY PROPERTY. BE IT ORDAINED by the City Commission of the City of Bozeman, Montana-, $oction J Th6t Chapter 2.05 be added to the Bozeman Muni4cipal Code,so that such Chapter shall read as follows: "Chapter 2.05 ACQUISITION AND TRANSFER OF CITY PROPERTY 2.05.010 Authorization for City to obtain property.The City Commission has jurisdiction and power, under such limitations and restrictions as are prescribed by law,to purchase,receive by donation or exchange, or lease any real or personal property necessary for the use of the City and to preserve, take care of, manage, and control the same. 2.05.020 Appraisal required for certain purchases of real property or conservation easements.Unless otherwise provided by law,the City may not purchase real property in an amount in excess of$10,080 5200.000 or a conservation easement using public funds in an amount In excess of $40,000 unless the value of the property or conservation easement has been previously estimated by a disinterested certified general real estate appraiser selected by the City Manager. The City may not pay more than the appraised value for the real property or conservation easement. 2.05.030 Authorization to sell and exchange City property. A. The City Commission has the power to sell,trade,or exchange any real or personal property, however acquired, belonging to the City that is not necessary to the conduct of City business or the preservation of its property. B. Whenever the City purchases equipment, as provided in M.C.A. Sections 7-5- 4301 through 7-5-4310,City equipment that Is not necessary to the conduct of the City business may be traded In as part of the purchase price or may be sold at public auction,as provided in 7-6-4310, In the discretion of the City Manager or City Managers designee. C. Any sale, trade, or exchange of real or personal property must be accomplished under the provisions of this Chapter.In an exchange of real property,the properties must be appraised, and an exchange of City property may not be made unless property received in exchange for the City property is of an equivalent value. If the properties are not of equivalent values, the exchange may be completed if a cash payment is made in addition to the delivery of title for property having the lesser value. D� If the City owns property containing a historically significant building or monument, the City may sell or give the property to nonprofit organizations or groups that agree to restore or preserve the property.The contract for the transfer of the property must contain a provision that: I requires the property to be preserved in its present or restored state upon any subsequent transfer;and 2. provides for the reversion of the property to the City for noncompliance with conditions attached to the transfer. 2.05.040 Requiremerft for cortain sales. When ft City Commission has determined,after public hearing, that any r" property which is owned by the city is no longer needed,the property may be sold by bid, auction with reserve, or negotiated sale or exchange, subject, where appropriate,to a minimum price established through an appraisal that certifies the value of such property. Notice of sale, exchange,or auction shall be published as provided in M.C.A.Section 7-1-4127. The city may terminate the sale procedures used at anytime and may reinitiate the same or different procedures at a later date. 2.05.050 Terms of sale. A. Except as provided in Section 2.05.030.D,a sale under this part must be for cash or on terms that the City Commission may approve,provided that at least 20%,of the purchase pace Is paid In cash.All deferred payments on the purchase price of any prop"sold must bear interest at Rte-mW of 656veyew a madat total payable annually,and may be extended over a period of not more than five years. B. Subject to Section 2.05.030.1), a sale may not be made for less than 90% of the appraised value. C. Subject to Section 2.05.030.1),the title to any property sold may not pass from the City until the purchaser or the purchaWs assigns have paid the full amount of the purchase price into the City treasury for the use and benefit of the City. 2.05.060 Appraisal required foe c*rW]n sales. Unless otherwise provided, no sale of Mal property shall be made of any property unless it has been appraised within threeirtan&&one veer prior to the date of the sale. -2- 2.05.070 Use of proceeds of prop"disposition.The funds derived from property disposed of in accordance with this chapter, In the discretion of the City Commission, may be credited to any account that is in the best interest of the City." 1520on 2 ReRealle All resolutions, ordinances and sections of the Bozeman Municipal Code and parts thereof in conflict herewith are hereby repealed. Aection 3 ijayings 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. SoctioLl §—Ov—era—b"I If any portion of this ordinance or the application thereof to any person or circumstances is held invalid,such invaildityshall not affect other provisions of this ordinance which maybe given effectm4thout the invalid provisions or application and,to this end,the provisions of this ordinance are declared to be severable. Eftctly_q Date This ordinance shall be in full force and effect thirty(30)days after final adoption. PASSED by the City Commission of the City of Bozeman,Montana,on first reading at regular session thereof held on the 19th day of December 2005. ANDREW L. CETRA R 0 Mayor ATTEST.- RMIN L. SULLIVAN City Clerk 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 17th day of January 2006,. JEFF K. US I, Mayor ATTEST: ROBIN L. SULLIVAN City Clerk APPROVED AS TO FORA: hex PA L J. City Attomne -4- um Return to: EXHIBIT American Land Title Company 1800 West loch PO Box 396 Bozeman,MT 59771-0396 DECLARATION OF COVENANTS,CONDITIONS,AND RESTRICTIONS FOR BLOCK 3 OF THE BUTTE ADDITION TO THE CITY OF BOZEMAN THIS DECLARATION is made 2012 (the "Effective Date'), by THE CITY OF BOZEMAN, a self-governing Montana local government, 121 North Rouse Avenue,Bozeman, Montana 597I5 (the "C "), and EXERGY FRIENDS OF THE STONY MANSION, a Montana nonprofit corporation, c/o Exergy Integrated Systems, 40 West 14th. Street, Suite 4A, Helena, Montana 59601 ("EFSAV), The City and EFSM are herein referred to as the "Declarants" and each of them a "Declarant." RECITALS A. Declarants are all of the owners of real property ("Emperty�,) consisting of a city block located in the City of Bozeman, Gallatin County, Montana, described as Block 3 of the Butte Addition to the City of Bozeman, located in the Northwest One-Quarter of Section 18,Township 2 South,Range 6 East,P.M.M. Gallatin County,Montana. B, The Property is divided into two Lots, one owned by EFSM and the other by the City. The Lot owned by EFSM(the"Mansion Lot")is described as: Lot. IA-I of the Final Plat of the Second Amended Flat of Block 3 of Butte Addition to the City of Bozeman, Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder of Gallatin County,Montana. [Plat C-35H]. The Lot owned by the City("Story Park") is described as: Lot I A-2 of the Final Plat of the Second Amended Plat of Block 3 of Butte Addition to the City of Bozeman, Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder of Gallatin County,Montana. [Plat C-35111.. C. The Mansion Lot is improved by the Story Mansion and a detached Carriage House, both historically significant structures. Story Park has no structural improvements and has historically been part of the Story Mansion grounds. Story Park was declared a public park pursuant to Commission Resolution No. 4227 adopted by the City Commission of the City of Bozeman on Page 1 of 8 December 14, 2009, and recorded December 21, 2009, in the Public Records under Document No, 2349815, D. The Mansion Lot and Story Park have historically been under single ownership, and immediately prior to the Effective Date, the City owned both Lots. Pursuant to the terms and conditions of Agreement to Sell and Purchase Real Estate made effective , 2012, the terms and conditions of which were approved pursuant to Commission Ordinance No. 1821 finally passed and adopted by the City Commission of the City of Bozeman on ) 2012, the City sold and EFSM purchased the Mansion Lot.The City retained ownership of Story Park. E. Notwithstanding the division of the Property into separate ownerships, Declarants recognize the historic relationship between the existing structures on the Mansion Lot and the landscape of Story Park, and they share a desire to continue the complementary use of their-respective Lots in order to foster, maintain, and preserve the historic character of the Property. Declarants desire to preserve the Property's significant open space, encourage landscaping that is consistent with historic preservation of the existing structures, and restrict uses inconsistent with historic preservation goals for the Property. F. Declarants desire that the first floor("First Floor') of the Story Mansion be operated in perpetuity as a Community Center (defined below), thereby continuing to use the First Floor in a manner similar to its use prior to the Effective Date. G. Accordingly, Declarants desire to subject the Property and the subdivisions thereof to certain protective and restrictive covenants, conditions,restrictions, easements,reservations and guidelines (collectively the"Covenants"),all as set forth herein, NOW, THEREFORE, Declarants hereby declare that the Property shall be owned, held, sold, conveyed, encumbered, leased, used, and occupied subject to the following Covenants. The Covenants shall run with the land and shall be binding upon and inure to the benefit of all persons having any right, title or interest in the Property (or any part thereof) and their heirs, successors and assigns. The Covenants are imposed upon the Property for the purposes of protecting the Property, preserving the Property's historical significance and character,and regulating the use of the Property SECTION 1. DEFINITIONS Unless the context requires otherwise, the following definitions shall pertain throughout this Declaration and in the interpretation thereof. 0 "Community Center" shall have the meaning set forth in Section 38.42.650, Bozeman Municipal Code. Section 38.42,650 defines "Community Centee' as "a building or portion of a building used for nonprofit cultural, educational, recreational, religious or social activities which is open to the public or a designated part of the public,usually owned or operated by a public or nonprofit group or agency." a "Covenants"shall have the meaning set forth in Recital G. 0 "Declarants" means the City of Bozeman, a self-governing Montana local government, the present Owner of Story Park, and Exergy Friends of the Story Mansion, a Montana non-profit corporation, the present Owner of the Mansion Lot. Page 2 of 8 "Declaration"means this document and all parts attached thereto or incorporated by reference, "Improvements"means and includes, but is not limited to, buildings and roofed structures,parking areas, fences, walls, driveways, hedges, landscaping, poles, signs, and any new construction or exterior renovation significantly altering the appearance of these improvements. It shall not include public utilities, landscape material replacements, or any other replacement or repair that does not significantly alter exterior appearances as they existed prior to the necessity of replacement or repair.It shall include both original improvements and all later changes and improvements. "Law" or "Laws" means all laws, ordinances, requirements, orders, proclamations, directives, codes, rules, and regulations of any governmental authority that affect the Property, the Improvements, this Declaration, or any Person's rights and remedies under this Declaration in any way. The term shall include Law in force at the date of this Declaration or passed, enacted, or imposed at some later time, subject in all cases, however, to any applicable waiver, variance or exemption. "Governmental authority"as used in this paragraph shall include any agency,authority, bureau, department, quasi-governmental body, or other entity or instrumentality having jurisdiction over the Property. • "Lot"means a fractional part of the subdivided Property as depicted on plats recorded from time to time in the Public Records. • "Occupant" means a Tenant or licensee of an Owner, or any other person or entity other than an Owner in lawful possession of Lot with the permission of the Owner. • "Owner" means Declarants or other Persons who own the record title to any Lot, but excluding in all cases any party having an interest in the Lot solely as security for an obligation. If a Lot is sold under a contract of sale with a recorded notice of purchaser's interest,and the contract specifically so provides, then the purchaser (rather than the holder of the legal interest) shall be deemed the Owner. • "Person" means a natural person, corporation, limited Iiability company, partnership, association, trust,other entity,governmental entity, or any combination thereof "Property°' shall have the meaning set forth in Recital A, and additionally means the land, buildings, improvements, and structures thereon, and all easements, rights, and appurtenances belonging thereto,which is hereby subjected to the provisions of this Declaration. "Public Records" means the records on file and of record in the office of the County Clerk and Recorder,Gallatin County,Montana. "Rehabilitation" shall have the meaning adopted by the United States National Park Service, Department of the Interior, in conjunction with its Standards for Rehabilitation and Guidelines for Rehabilitating Historic Structures as amended. Under current regulations, 36 CFR 68.2(b), "Rehabilitation"is defined as "the act or process of making possible an efficient compatible use for a property through repair, alterations and additions while preserving those portions or features that convey its historical,cultural or architectural values." "Tenant"" means the owner of a leasehold interest in a part or all of the Property or any Improvements located thereon. Page 3 of 8 SECTION 2 PROJECT SUBJECT TO DECLARATION;PROPERTY RIGHTS 2.1 The Property; General Declaration. Declarants are the present record titleholders of the Property. Upon recording of this Declaration in the Public Records,the Property shall be owned, held, transferred, leased, sold, conveyed, hypothecated, encumbered, and occupied by Declarants, and any subsequent Owner, Tenant or Occupant of all or any part thereof, subject to the Covenants. 2.2 Subdivision of Lots. No Lots may either be subdivided into two or more parcels without the prior written approval of the Owners of both the Mansion Lot and Story Park.An Owner desiring to subdivide a Lot must comply with all Laws,particularly those governing land subdivision and platting, SECTION 3 PRESERVATION OF STORY MANSION AND CARRIAGE HOUSE. 3.1 Preservation Obligation, Except for Rehabilitation to the interior of the Story Mansion and Carriage House architecturally compatible with each structure's historic character, EFSM shall preserve the Story Mansion and the Carriage House in their present states. Upon completion of Rehabilitation work,EFSM shall preserve those structures in their rehabilitated condition. 3.2 Obligations on Transfer. Should EFSM subsequently sell or transfer the Mansion Lot, it will require in the documents governing such sale or transfer that the subsequent purchaser or transferee preserve the Story Mansion and Carriage House in the conditions present at the time of transfer. If a subsequent Owner completes additional Rehabilitation work on the structures such work shall be architecturally compatible with the historic character of the Story Mansion and Carriage House so as to not materially alter the historic character of the Story Mansion and Carriage House, In addition, a subsequent Owner shall preserve them in their rehabilitated condition. SECTION 4 USE OF STORY MANSION FIRST FLOOR AS COMMUNITY CENTER, 4.1 Community Center Use of the First Floor. Subject to the terms and conditions of this Section 4,the Mansion Lot Owner shall use the first floor of the Story Mansion ("First Floor")as a Community Center, In ascertaining compliance with this Section 4.1, it is necessary only that the Mansion Lot Owner has made the First Floor available to the public or a designated part of the public as a Community Center in preference to all other uses that may be permissible under Law and under permits, easements,and encumbrances of record that affect the Mansion Lot. 4.2 Policies and Procedures; Reservation System. The Mansion Lot Owner shall implement policies and procedures encouraging Community Center uses of the First Floor. Such policies and procedures may include, without limitation, a reservation system allowing members of the public or a designated part of the public to reserve the First Floor for Community Center uses. The Mansion Lot Owner may create and allow preferences and priorities in its policies and in any reservation system for EFSM and EFSM-sponsored activities and for First Floor use by Tenants and Occupants of the Story Mansion and Carriage House,The Mansion Lot Owner may employ a manager to operate the First Floor and schedule its use as a Community Center. 4.3 Fees and Deposits. The Mansion Lot Owner may, in its sole discretion, set a schedule of reasonable fees for Community Center and other uses of the First Floor. In setting and determining the reasonableness of the fees, the Mansion Lot Owner may take into account, and seek to recover, the costs of rehabilitating, preserving,maintaining, operating, and managing the Page 4 of 8 Mansion Lot and the historic structures located thereon. Fees may vary depending upon the proposed uses and activities and upon seasonal demand. The Mansion Lot Owner may also require and collect reservation, damage, security,and other reasonable deposits relating to use of the First Floor as a Community Center. 4.4 Rules and Regulations, The Mansion Lot Owner may, in its sole discretion, create and implement rules and regulations governing the use of the First Floor as a Community Center. Such rules may, for example, regulate the days and hours of use, prohibit certain activities and uses,or prefer certain Community Center activities and uses over others. SECTION 5 COVENANTS PERTAINING TO THE USE OF STORY PARK AND MANSION LOT GROUNDS. 5.1 Preservation of Historic Relationship Between Structures and Grounds. The use of Story Park shall be restricted to all lawful public parkland uses consistent with City of Bozeman rules and regulations. Only facilities and Improvements that are in harmony with the historic character and preservation goals for the Property shall be placed in Story Park, 5.2 Open Space. Story Park shall be used, operated, and maintained in a manner that preserves the Park's open space existing as of the Effective Date, 5.3 Lawns and Landscaping. The Story Park Owner and Mansion Lot Owner shall endeavor to create and execute a coordinated and comprehensive landscaping plan for the Property. All new and replacement landscaping on the Property, whether or not completed in accordance with a landscaping plan, shall be consistent with preservation of the Property's historic character. The Owners shall keep lawns and landscaped areas on their respective Lots alive and attractive. No trees shall be removed from the Property without the consent of the Owners of both Story Park and the Mansion Lot, except for dead trees and trees posing imminent safety concerns. Except as may be agreed to in writing, each Owner shall be responsible for the control of the state and county declared noxious weeds on its Lot. SECTION 6. ENFORCEMENT. 6.1 Owner's Compliance. Every Owner, Tenant or Occupant of a Lot shall comply with the provisions of this Declaration and any amendments or modifications made to it from time to time. Failure to comply shall be grounds for damages, for injunctive relief or for any other remedy available at law or in equity maintainable by an aggrieved Owner or, in the case of non- compliance with the Covenants set forth in Sections 3 and 4 of this Declaration, by the City of Bozeman,whether or not the City is an Owner at the time of the noncompliance. 6.2 Remedies. (a) Suit. Each Owner and, in the case of non-compliance with the Covenants set forth in Sections 3 and 4 of this Declaration, the City of Bozeman, whether or not the City is an Owner at the time of the noncompliance, may enforce the provisions of this Declaration by prosecuting a proceeding at law or in equity against any Person violating or attempting to violate any of the Covenants to enjoin or prevent them from doing so, to cause the violation to be remedied,and/or to recover damages resulting from the violation, (b) Nuisance. Without limiting the generality of the remedies elsewhere provided in Declaration, the result of every act or omission whereby any Covenant is violated in whole Page 5 of 8 or in part is hereby declared to be a nuisance, and every remedy against nuisance, either public or private,shall be available to an Owner, (c) Remedies Not Exclusive. The remedies provided in this Section 6.2 and elsewhere in this Declaration shall be cumulative and shall not be exclusive of any other remedies that may now or in the future be available to the parties as provided for at law or in equity. 63 Attorney's Fees, In any legal or equitable proceeding for the enforcement of this Declaration, whether it be an action for damages, declaratory relief or injunctive relief, or any other action, the losing party or parties shall pay the costs and attorney's fees of the prevailing party or parties, in such reasonable amount as shall be fixed by the court in such proceedings or in a separate action brought for that purpose. In proceedings in which the City of Bozeman is the prevailing party, such fees shall include the costs and salary of the Bozeman City Attorney reasonably ,allocated to the enforcement action, 6.4 No Waiver, The failure of an Owner or the City to enforce a Covenant contained in this Declaration shall in no event be deemed to be a waiver of such Owner's or the City's right to enforce such Covenant or any other Covenant thereafter, nor shall such failure result in or impose any liability upon Declarants. 6.5 No Third Party Rights. This Declaration shall not be construed to create any Tights or confer any benefits on any Persons other than an Owner and the City. Without limiting the generality of the foregoing, this Declaration shall not be construed to create any right in the public to enforce the Covenants set forth herein. SECTION 7. GENERAL PROVISIONS. 7.1 Covenants to Run with Land; Binding Effect The Covenants contained in this Declaration are perpetual and shall run with the land and bind the Property, including every Lot made subject to this Declaration, and shall inure to the benefit of and be binding upon the Lot Owners, and the heirs,personal representatives,nominees, successors,and assigns of such Lot Owners. 7.2 Amendment, (a) Amendment by Lot Owners, This Declaration or any Covenant contained in it may be amended only by all of the Lot Owners. Any amendment to be effective must be recorded in the Public Records. If an Owner consents to any amendment to this Declaration, it will be conclusively presumed that such Owner has the authority to so consent and no contrary provision in any mortgage or contract between the Owner and a third party will affect the validity of such amendment. (b) City of Bozeman as Party to Amendment. The Covenants set forth in Section 3 (Preservation of Story Mansion and Carriage House) and Section 4 (Use of Story Mansion First Floor as Community Center) shall not be amended or revoked unless the City of Bozeman, whether or not an Owner at the time of the amendment or revocation, is made party to such amendment or revocation and consents thereto. 7.3 Notices. Except as set forth, any notice required to be given to any Person under the provisions of this Declaration shall be personally served or sent by fax with confirmation, overnight courier, or certified U.S. mail, return receipt requested, addressed to the last known address of such Person Notices under this section shall be deemed to have been received-. (a) if by personal Page 6 of 8 delivery, on the date delivered; (b) if by facsimile transmission, on the date confirmed; (c) if by overnight delivery service,on the date delivered; and(d)if by mail, five(5)days after mailing, 7,4 Severability, The provisions of this Declaration shall be deemed independent and severable, and the invalidity,partial invalidity or unenforceabilfty of any one or more provisions shall not affect the validity or enforceability of any other provision, 7.5 Captions. The captions, titles and section headings throughout this Declaration are for convenience and reference only and shall not be deemed or held to explain, modify, amplify or aid in the interpretation, construction or meaning or the provisions of this Declaration, nor to define, limit or describe the scope or intent of a particular section. 7.6 Interpretation. The provisions of the Declaration shall be liberally construed to effectuate the intent and purpose of the Declaration. IN WITNESS WHEREOF, Declarants have caused this Declaration to be made and executed as of the date set forth at the head of this instrument, Exergy Friends of the Story Mansion by: its: City of Bozeman by: its: Page 7 of 8 ACKNOWLEDGEMENTS STATE OF MONTANA Ss. County of Gallatin This instrument was acknowledged before me on 2012, by as of Exergy Friends of the Story Mar�s�iona Montana nonprofit corporation. Printed Namc: NOTARY PUBLIC for the State of Montana RESIDING AT Montana [Seal] My Commission Expires- 20 STATE OF MONTANA ss. County of Gallatin This instrument was acknowledged before me on 2012, by as of the City of Bozeman,a self-governing Montana local government. Printed Name: NOTARY PUBLIC for the State of Montana RESIDING AT Montana [Seal] My Commission Expires 20_ Page 8 of 8 Return to: American Land Title Company 1800 West Koch PO Box 396 Bozeman,MT 59771-0396 RIGHT OF FIRST OFFER TO PURCHASE REAL PROPERTY THIS AGREEMENT ("A r�ment') is made , 2012, between by THE CITY OF BOZEMAN, City Hall, 121 North Rouse Avenue, Bozeman, Montana 59715 ("City"), and ENERGY FRIENDS OF THE STORY MANSION, a .Montana non-profit corporation, c/o Cxergy Integrated Systems,40 West 14th Street, Suite 4A,Helena,Montana 59601 ("EFSM"). RECITALS A. EFSM owns the following described real property ("Property") located in Bozeman, Gallatin County,Montana: Lot 1A-1 of the Second Amended Plat of Block 3 of the Butte Addition to the City of Bozeman, Gallatin County,Montana, according to the official plat thereof on file and of record in the office of the Clerk and Recorder of Gallatin County,Montana. [Plat C-35H] Together with all improvements and appurtenances thereto. B. Contemporaneously with the parties' execution of this Agreement, EFSM is the Property. The Property is improved with the Story Mansion and the Carriage House, both historically significant structures. The City owns adjacent property, known as "Story Park," which has historically been part of the grounds for the Story Mansion. Accordingly, the City desires to obtain a right of first offer to acquire the Property. C. The parties desire to enter into this Agreement to provide the City with a right of first offer to purchase the Property should EFSM decide to sell or otherwise transfer the Property. AGREEMENT IN CONSIDERATION of the mutual covenants contained herein and intending to be Iegally bound, the parties agree as follows: I. Right of First Offer to Purchase. Subject to the terms and conditions of this Agreement, if EFSM desires to sell or otherwise transfer, whether directly or indirectly, the Property, it shall give a RIGHT OF FIRST OFFER.TO PURCHASE REAL PROPERTY('STORY MANSION PROPERTY).............I.-......I..................................... ...........PAGE 1 OF 4 notice (the"First Offer Notice") to the City. The First Offer Notice shall specify the price and terms of sale including, without limitation, the type of deed to be delivered, the exceptions to which the Property will be subject, whether or not title insurance will be provided, and the allocation of responsibility for taxes and other closing costs, The First Offer Notice shall constitute an offer by EFSM to sell its interest in the Property to the City on the price and terms and conditions set forth in such notice. The City, if it desires to accept such offer, shall, within ninety (90) days after the giving of the First Offer Notice, give EFSM written notice to such effect (the "Acceptance Notice"). If the City shall fail to give the Acceptance Notice within the time period provided, the City shall be deemed to have consented to the proposed sale, and EFSM may sell its interest in the Property, upon the price and terms and conditions set forth in the First Offer Notice, at any time within one (1) year of the expiration of the time period for the giving of the Acceptance Notice; provided, however, that EFSM may only, during such period, sell at any price equal to or greater than ninety percent (90%) of the price stated in the First Offer Notice and on terms no more favorable to the purchaser than the terms included in the First Offer Notice. If EFSM does not sell the Property to a third party purchaser within the one-year period as allowed by this section, the Property shall again be subject to the City's right of first offer. 1 Closing Under Right of First Offer. If Buyer gives EFSM an Acceptance Notice, then, on such business day as the City shall set forth in the Acceptance Notice, which shall be not less than ninety (90) days nor more than one hundred eighty (180) days after the giving of the Acceptance Notice, the City shall purchase the Property for the purchase price stated in the First Offer Notice and upon the other terms and conditions of the First Offer Notice. The closing of the sale shall be held in the offices of a title company chosen by EFSM, or at such other place as the parties to the sale may mutually agree, on the date selected as provided above. At the closing, EFSM shall deliver to the City its deed in the form and subject to the exceptions stated in the First Offer Notice. 3. Termination of Right of First Offer, The right of first offer described in Section I above shall terminate and be of no farther force or effect if, after compliance with the requirements of Section 1, EFSM sells and conveys the Property to a third party. 4. Consideration. This Agreement is a negotiated term of a separate agreement to sell and purchase real estate ("BU-Sell') between the parties involving a lot adjacent to the Property upon which the Story Mansion is situated. The City has provided adequate consideration for this right of first offer to the City under the terms of the Buy-Sell, so the City shall not be required to make any payment or give any further consideration for the rights granted herein. 5. Notices. Any notice required to be given under this Agreement shall be deemed given when addressed as follows and (i) personally delivered, (ii) deposited with the United States Postal Service, registered or certified mail, postage prepaid and properly addressed, return receipt requested, or(iii)sent via a recognized over-night courier service such as Federal Express or United Parcel Service provided that proof of delivery is obtained. Notices, demands, and communications shall be addressed as follows: To the City. The City of Bozeman Attn: City Manager City Hall 121 North Rouse Avenue Bozeman,Montana 59715 RIGHT'of FIRST 0Ff1'-.'K TO PURCHASE REAL PROPERTY(STORY MANSION PROPERTY)... ........­-­............................................ PAuF 2 OF 4 To EFSM' Exergy Friends of the Story Mansion c/o Exergy Integrated Systems 40 West 14th Street, Suite 4 Helena,Montana 59601 The City or EFSM may change its above address by a notice in writing delivered to the other party in accordance with the provisions of this Section. 6. Miscellaneous. (a) No Construction Against Drafting Party. This Agreement shall not be construed more strictly against one party than against the other merely by virtue of the fact that the Agreement may have been prepared primarily by counsel for one of the par-ties, it being recognized both parties and/or their counsel have contributed substantially and materially to the preparation of this Agreement. (b) Time is qf'the Essence. Time of payment and performance shall be of the essence of each and every provision of this Agreement. (c) Attorney Fees, Should either party incur any costs or expenses, including reasonable attorney fees, in enforcing any of the provisions of this Agreement, the other or unsuccessful party shall reimburse the prevailing party on demand. (d) Entire Agreement. This Agreement contains the entire agreement and understanding of the parties with respect to its subject matter, and supersedes any and all prior negotiations and understandings. This agreement shall not be modified, amended or changed in any respect except by a written document signed by all parties hereto, (e) Captions. The captions, titles and section headings throughout this Agreement are for convenience and reference only and shall not be deemed or held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement, nor to define,limit or describe the scope or intent of a particular section. (f) Governing Law. 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. (g) Counterparts; Facsimile, This Agreement (and any amendment hereto) may be executed in any number of counterparts, all of which when taken together will constitute one and the same instrument. [Signatures and acknowledgments OD next page] RIGHT OF FIRST OFFER TO PURCHASE REAL PROPERTY(STORY MANSION PROPERTY)..............---................................. PAGE 3 OF 4 IN WITNESS WHEREOF,the parties have executed this Agreement on the date set forth above. City of Bozeman by: its: Exergy Friends of the Story Mansion by: its: ACKNOWLEDGEMENTS STATE OF MONTANA SS. County of Gallatin This instrument was acknowledged before me on 2012, by as of the City of Bozeman, a self-governing Montana local government. Printed Name: NOTARY PUBLIC for the State of Montana RESIDING AT Montana [Seal] My Commission Expires 120_ STATE OF MONTANA Ss. County of Gallatin This instrument was acknowledged before me on 2012, by as of Exergy Friends of the Story Mansion,a Montana nonprofit corporation, Printed Name: NOTARY PUBLIC for the State of Montana RESIDING AT Montana [Seal] My Commission Expires - 20 RimTOF FIRST OFFER.TO PURCHASE REAL.PROPERTY(STORY MANSION PROPERTY),,.........-....... .......................................PAGE OF 4 EXHIBIT Return to: I I American Land Title Company 1800 West Koch PO Box 396 Bozeman,MT 59771-0396 RIGHT OF FIRST OFFER TO PURCHASE REAL PROPERTY THIS AGREEMENT ("Agreeing ') is made , 2012, between by THE CITY OF BOZEMAN, City Hall, 121 North Rouse Avenue, Bozeman, Montana 59715 ("City"), and EXERGY FRIENDS OF THE STORY MANSION, a Montana non-profit corporation, C/o Exergy Integrated Systems,40 West 14th Street, Suite 4A,Helena,Montana 59601 ("EFSM'). RECITALS A. The City owns the following described real property ("Erqperty") located in Bozeman, Gallatin County,Montana: Lot IA-2 of the Second Amended Plat of Block 3 of the Butte Addition to the City of Bozeman,Gallatin County, Montana,according to the official plat thereof on file and of record in the office of the Clerk and Recorder of Gallatin County,Montana. [Plat C-35H] Together with all improvements and appurtenances thereto. B. Contemporaneously with the parties' execution of this Agreement,EFSM is purchasing an adjacent lot improved with the Story Mansion and the Carriage House, both historically significant structures. The Property, presently designated "Story Park," has historically been part of the grounds for the Story Mansion,Accordingly,EFSM desires to obtain a right of first offer to acquire the Property. C. The parties desire to enter into this Agreement to provide EFSM with a right of first offer to purchase the Property should the City decide to sell or otherwise transfer the Property. AGREEMENT IN CONSIDERATION of the mutual covenants contained herein and intending to be legally bound, the parties agree as follows: I. Right of First Offer to Purchase. Subject to the terms and conditions of this Agreement and the requirements of the Bozeman City Charter and the Bozeman Municipal Code related to the sale or RIr,HT OF FIRST OFFER TO PURCHASE REAL PROPERTY(STORY PARK)........................._.........__._.... ............­.........­­ ........PAGE IOF4 transfer of real property, if the City desires to sell or otherwise transfer, whether directly or indirectly, the Property, it shall give a notice (the "First Offer Notice") to EFSM, The First Offer Notice shall specify the price and terms of sale including,without limitation, the type of deed to be delivered, the exceptions to which the Property will be subject, whether or not title insurance will be provided, and the allocation of responsibility for taxes and other closing costs. The First Offer Notice shall constitute an offer by the City to sell its interest in the Property to EFSM on the price and terms and conditions set forth in such notice. EFSM, if it desires to accept such offer, shall, within ninety (90) days after the giving of the First Offer Notice, give the City written notice to such effect(the"Acceptance Notice"). If EFSM shall fail to give the Acceptance Notice within the time period Provided, EFSM shall be deemed to have consented to the proposed sale, and the City may sell its interest in the Property, upon the price and terms and conditions set forth in the First Offer Notice, at any time within one (1) year of the expiration of the time period for the giving of the Acceptance Notice, provided, however,that the City may only, during such period, sell at any price equal to or greater than ninety percent(90%) of the price stated in the First Offer Notice and on terms no more favorable to the purchaser than the terms included in the First Offer Notice, If the City does not sell the Property to a third party purchaser within the one-year period as allowed by this section,the Property shall again be subject to EFSM's right of first offer. 2, Closing Under Right of First Offer. If Buyer gives the City an Acceptance Notice, then, on such business day as EFSM shall set forth in the Acceptance Notice, which shall be not less than ninety (90) days nor more than one hundred eighty (180) days after the giving of the Acceptance Notice, EFSM shall purchase the Property for the purchase price stated in the First Offer Notice and upon the other terms and conditions of the First Offer Notice.The closing of the sale shall be held in the offices of a title company chosen by the City, or at such other place as the parties to the sale may mutually agree, on the date selected as provided above. At the closing, the City shall deliver to EFSM its deed in the form and subject to the exceptions stated in the First Offer Notice. 3, Termination of Right of First Offer. The right of first offer described in Section I above shall terminate and be of no further force or effect if, after compliance with the requirements of Section 1,the City sells and conveys the Property to a third party. 4. Consideration. This Agreement is a negotiated term of a separate agreement to sell and purchase real estate ("Buy-Sell"') between the parties involving the Property. EFSM has provided adequate consideration for this right of first offer to the City under the terms of the Buy-Sell, so EFSM shall not be required to make any payment or give any further consideration for the rights granted herein. 5, Notices. Any notice required to be given under this Agreement shall be deemed given when addressed as follows and (i) personally delivered, (ii) deposited with the United States Postal Service, registered or certified mail, postage prepaid and properly addressed, return receipt requested,or(iii)sent via a recognized overnight courier service such as Federal Express or United Parcel Service provided that proof of delivery is obtained.Notices, demands, and communications shall be addressed as follows: To the City: The City of Bozeman Attn. City Manager City Hall 121 North Rouse Avenue Bozeman,Montana 59715 RIGHT Of FIRST OFFER TO PURC11ASEREAL PROPERTY(STORY PARK)..........­­­1­­­_.1..................._­_­­­................. PACE'2 OF 4 To EFSM: Exergy Friends of the Story Mansion c/o Exergy Integrated Systems 40 West 14th Street,Suite 4 Helena,Montana 59601 The City or EFSM may change its above address by a notice in writing delivered to the other party in accordance with the provisions of this Section. 6. Miscellaneous, (a) No Construction Against Drafting Parry. This Agreement shall not be construed more strictly against one party than against the other merely by virtue of the fact that the Agreement may Dave been prepared primarily by counsel for one of the parties, it being recognized both parties and/or their counsel have contributed substantially and materially to the preparation of this Agreement. (b) Thne is of the Essence, Time of payment and performance shall be of the essence of each and every provision of this Agreement, (c) Attorney Fees. Should either party incur any costs or expenses,including reasonable attorney fees, in enforcing any of the provisions of this Agreement, the other or unsuccessful party shall reimburse the prevailing party on demand. (d) Entire Agreement, This Agreement contains the entire agreement and understanding of the parties with respect to its subject matter, and supersedes any and all prior negotiations and understandings. This agreement shall not be modified, amended or changed in any respect except by a written document signed by all parties hereto, (e) Captions. The captions, titles and section headings throughout this Agreement are for convenience and reference only and shall not be deemed or held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement,nor to define,limit or describe the scope or intent of a particular section. (f) Governing Law. 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. (g) Counterparts; Facsimile. This Agreement (and any amendment hereto) may be executed in any number of counterparts, all of which when taken together will constitute one and the same instrument, [Signatures and acknowledgments on next page] RiGin oFFiRs'j'OFFER TO PURCHASH REAL PROPERTY(STORY PA-RK)— -- ............ ......-........... .......................PAGE 3 OF 4 IN WITNESS WHEREOF,the parties have executed this Agreement on the date set forth above. City of Bozeman by: its- Exergy Friends of the Story Mansion by: its: ACKNOWLEDGEMENTS STATE OF MONTANA ss. County of Gallatin This instrument was acknowledged before me on --, 2012, by as of the City ofBozcman,a self-governing Montana local government. Printed Name: NOTARY PUBLIC for the State of Montana RESIDING AT Montana [Seal] My Commission Expires 20_ STATE OF MONTANA Ss. County of Gallatin This instrument was acknowledged before me on 2012, by as of Exergy Friends of the Story Mansion,a Montana nonprofit corporation. Printed Name, NOTARY PUBLIC for the State of Montana RESIDING AT Montana [Seal] My Commission Expires 20_ RIGHT OF FIRSTOFFER TO PURCHASE REAL PROPERTY(STORY PARK)-, --..........-....-......--............................ .....PAGL4 of 4