HomeMy WebLinkAbout23. A4 Res 4572
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Carolyn Poissant – TOP Design and Development Manager
Mitch Overton – Director of Parks and Recreation
SUBJECT: Resolution 4572 to approve a Memorandum of Understanding between the City of Bozeman and The Trust for Public Land regarding the Story Mill Community Park, a Land Purchase and Sale Agreement for the Park
property, and a License Agreement for ongoing development activities by
TPL.
MEETING DATE: December 15, 2014
AGENDA ITEM TYPE: Action
RECOMMENDATION: Adopt Resolution 4572 authorizing the City Manager to sign the
following: 1) a Memorandum of Understanding with The Trust for Public Land (“TPL”) for the
design and construction partnership for the Story Mill Community Park (the “Park Project”); 2) a Real Estate Purchase and Sale Agreement with TPL for acquisition of the Park property; and 3) a
License Agreement allowing TPL to access the Park property after transfer to the City for the
purpose of ongoing development activities and for fulfilling TPL’s obligations under the MOU.
RECOMMENDED MOTION: Having considered public comment and the recommendations
of staff, I hereby move to adopt Resolution 4572 authorizing the City Manager to sign: (i) a binding Memorandum of Understanding with TPL describing the City’s and TPL’s respective obligations related to the Story Mill Community Park Project; (ii) a Real Estate Purchase and
Sale Agreement for acquisition of the Park property by the City upon the City Attorney’s
determination that all legal requirements have been met including approval by the City Attorney of an updated preliminary title commitment; and (iii) a License Agreement granting TPL limited rights to access the Park property after conveyance to the City for the purpose of its ongoing
development activities and for fulfilling its obligations pursuant to the MOU.
BACKGROUND: On March 24, 2014, the City Commission approved Resolution No. 4517
authorizing the allocation of Trails, Open Space and Parks (TOP) bond funding in an amount not to exceed $4,500,000 for the acquisition of park land and the development of the Story Mill Community Park contingent upon: (i) the City entering into a binding MOU with TPL describing
the financial and in-kind contributions proposed by TPL; and (ii) closing on a purchase and sale
agreement for the property. Of the $4,500,000 in TOP bond funds approved by the Commission,
up to $2,650,000 was allocated for the land purchase, with the remaining $1,850,000 allocated for park improvements to the land to be completed through the Park Master Planning Process. Since the approval TPL’s application for TOP bond funds, TPL and City staff have worked
cooperatively to draft three agreements governing the purchase and sale, and describing how
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TPL and the City will work together to achieve the Park Project goals as set out in Resolution
No. 4517.
(1) The MOU describes TPL’s commitment of financial and in-kind contributions to the Park
Project, and both parties’ rights and responsibilities during Park design and construction. In addition, the MOU requires that TPL: 1) obtain input from and work cooperatively with the City and follow the City’s procurement policies and procedures in undertaking
all activities associated with the planning, design, and construction of the Park Project;
2) complete the ecological restoration project as previously approved by the City and
assign all warranties for site improvements to the City; 3) hire and pay for a design and engineering consultant team to: a) prepare a final Master Plan for the Park Project, which will be submitted to the DRC and Commission for approval; b) prepare construction
documents for construction of all site improvements for the Park Project; c) manage all
facets of construction and site work supervision for the Park Project; 4) provide invoices
and such other documentation sufficient to evidence to the City’s satisfaction the value of any in-kind contributions to the Park Project; and 5) submit requests for reimbursement/payment to the City to cover the costs of site improvements approved by
the City and in conformance with the budget approved by the Commission.
(2) The Real Estate Purchase and Sale Agreement stipulates the conditions under which the
City agrees to purchase the Park Property for the amount of $2,650,000.00, the parties’ warranties and representations, and the parties’ responsibilities related to closing,
insurance, and taxes. Staff is working to facilitate closing of the land purchase prior to the
end of this month.
(3) Because TPL will have ongoing responsibilities after the conveyance of the land to the
City, the License Agreement grants TPL permission to access the property so that TPL may fulfill its obligations under the MOU.
Additional information on the Story Mill Park project, including the original staff memorandum,
preliminary budget and conceptual park plan, and TPL’s application materials, can be located
within the March 24, 2014 Commission materials.
UNRESOLVED ISSUES: There are several unresolved issues none of which should delay the
execution of the transactions called for in this action item.
Relocation of Northwestern Energy natural gas pipeline: City departments and the Trust for
Public Land have been working with Northwestern Energy (NWE) on NWE’s desire to abandon
and relocate an existing gas pipeline that crosses the southern portion of the Park Project. NWE is still finalizing the future route however all parties are working to ensure minimal disruption to
the current and future park plans.
Final preliminary title commitment: As of the date of this memorandum, the City has not
received a final preliminary title commitment for the parcels the City will acquire. TPL has
ordered the commitment. The City Attorney’s Office has reviewed an initial preliminary title commitment received earlier this year and has determined there are no issues of concern related
to that preliminary title commitment. An updated preliminary title commitment is necessary
because TPL purchased the Wake Up, Inc. properties after the date of the initial title
commitment and those properties were not included in the initial commitment. More information
will be provided during this action item.
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Northwestern Energy overhead electrical line: The City and TPL have requested that NWE
investigate the potential relocation of an existing overhead power line located north of Griffin in
the proposed active park area along the East Gallatin. NWE is still investigating this relocation
and City staff will meet with NWE’s representatives for final determination in the coming weeks.
Water rights: All water rights appurtenant to the Story Mill Park will be transferred to the City
at closing. However, it is currently unclear whether the existing water rights will be sufficient to
irrigate the active park area as conceptually designed. Plans and/or water rights may change as
the park design is finalized.
ALTERNATIVES: As directed by Commission.
FISCAL EFFECTS: As previously approved in Resolution No. 4517.
Attachments: 1) Resolution 4572, attachments to Resolution 4572 include:
(i) MOU (ii) Purchase and Sale Agreement
(iii) License Agreement
Report compiled on: December 7, 2014
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Page 1 of 3
COMMISSION RESOLUTION NO. 4572
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, AUTHORIZING THE CITY MANAGER TO (1) ENTER INTO A
MEMORANDUM OF UNDERSTANDING WITH THE TRUST FOR PUBLIC LAND
(TPL) DESCRIBING THE CITY’S AND TPL’S CONTRIBUTIONS TO THE STORY
MILL COMMUNITY PARK; (2) ENTER INTO A PURCHASE AND SALE AGREEMENT WITH TPL FOR PURCHASE BY THE CITY OF THE PARK PROPERTY; AND (3) ENTER INTO A LICENSE AGREEMENT WITH TPL FOR
TPL’S ONGOING WORK ON THE PARK AFTER THE PROPERTY TRANSFER.
WHEREAS, on March 24, 2014 the City Commission adopted Resolution 4517
approving the allocation of Trails, Open Space and Parks bond funding in an amount not to
exceed $4,500,000 for the acquisition of park land and the development of the Story Mill
Community Park (the “Park”) contingent upon: (i) the City entering into a binding Memorandum
of Understanding (“MOU”) with The Trust for Public Land describing the financial and in-kind
contributions proposed by TPL, and (ii) closing on a purchase and sale agreement for the
property; and
WHEREAS, of the $4,500,000 authorized by Resolution 4517, an amount not to
exceed $2,650,000 was allocated for purchase of the Park property; and
WHEREAS, an appraiser acceptable to the City Manager appraised the value of the
Park property at $2,960,000, effective February 24, 2014; and
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Page 2 of 3
WHEREAS, the City and TPL desire to work together with the common goal of
creating the Park for community enjoyment and ecological heath, education and recreation; and
WHEREAS, the City and TPL have drafted an MOU describing each party’s rights
and obligations in creating the Park; and
WHEREAS, in fulfilling its obligations pursuant to the MOU TPL will require access
to the Park property after the property is transferred to the City; and
WHEREAS, the City desires to grant TPL a revocable license to access the Park
property for the purpose of fulfilling its obligations pursuant to the MOU.
NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of
Bozeman, Montana:
Section 1
The City Manager is hereby authorized to enter into Attachment A (Memorandum of
Understanding between the City of Bozeman and The Trust for Public Land for the Story Mill
Community Park), a binding MOU with TPL describing the parties’ respective rights and
obligations in creating the Park.
Section 2
The City Manager is hereby authorized to enter into Attachment B (Real Estate
Purchase and Sale Agreement Between the City of Bozeman and The Trust for Public Land), for
the purchase of approximately 55 acres of real property for the Park in the amount of $2,650,000.
Section 3
The City Manager is hereby authorized to enter into Attachment C (License Agreement
for the Use of City Property by The Trust for Public Land) granting TPL a revocable license to
access the Park property after transfer to the City in order for TPL to fulfill its obligations under
the MOU.
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Page 3 of 3
PASSED AND APPROVED by the City Commission of the City of Bozeman,
Montana, at a regular session thereof held on the _____ day of _____________, 2014.
___________________________________
JEFFREY K. KRAUSS
Mayor
ATTEST:
________________________________________
STACY ULMEN, CMC
City Clerk
APPROVED AS TO FORM:
___________________________________
GREG SULLIVAN
City Attorney
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ATTACHMENT A
(Memorandum of Understanding between the City of Bozeman and
The Trust for Public Land for the Story Mill Community Park)
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ATTACHMENT B
(Real Estate Purchase and Sale Agreement Between the
City of Bozeman and The Trust for Public Land)
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ATTACHMENT C
(License Agreement for the Use of City Property by The Trust for Public Land)
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Memorandum of Understanding Between the City of Bozeman and The Trust For Public Land
For The Story Mill Community Park
This Memorandum of Understanding (the “MOU”) is entered into by and between The Trust
for Public Land, a California nonprofit public benefit corporation, with a mailing address of 111
South Grand Avenue, Suite 203, Bozeman MT 59715 (“TPL”) and the City of Bozeman, a
municipal corporation organized and existing under its Charter and the laws of the State of Montana,
with a mailing address of PO Box 1230, Bozeman, MT 59771 (the “City” and together with TPL the
“Parties”) and sets forth the mutual understanding of TPL and the City with respect to the funding,
design, construction and management of a community park to be built on the Park Property as shown
on Exhibit A (the “Park Project”). TPL and the City are working together with the common goal of
creating a park for community enjoyment and ecological health, education and recreation.
RECITALS
A. TPL is a national nonprofit organization that conserves and protects land for people to
enjoy as parks, gardens and other natural places to ensure livable communities for generations to
come.
B. TPL owns that certain real property located in the City of Bozeman, Gallatin County,
Montana consisting of approximately 55 acres described on Exhibit A attached hereto and hereby
incorporated by this reference (the “Park” or “Park Property”).
C. On November 6, 2012, the voters of the City approved the creation of a bond fund for
the acquisition, construction and maintenance of new parks, trails and open spaces in the City of
Bozeman (the “TOP Bond Fund”).
D. On March 24, 2014, the City Commission of the City of Bozeman adopted
Commission Resolution No. 4517 which authorized (i) the City’s purchase of the Park Property from
TPL for up to $2,650,000.00 from the TOP Bond Fund, and (ii) the contribution of up to
$1,850,000.00 from the TOP Bond Fund to fund park improvements on the Park Property, all on the
terms and conditions set forth in Commission Resolution No. 4517.
E. TPL has committed to contribute $3,700,000.00 in cash and in-kind contributions to
be used toward the design, construction, and maintenance of a public park on the Park Property (the
“TPL Contribution”).
F. Resolution No. 4517 contemplates that (i) the City’s commitment to purchase the
Park Property be evidenced by a purchase and sale agreement between the City and TPL and (ii)
TPL’s commitment to make the TPL Contribution be memorialized in a binding Memorandum of
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Understanding to be approved by the City Commission prior to the conveyance of the Park Property
from TPL to the City.
G. The City and TPL intend to complete the Park through a collaborative public-private
partnership. The purpose of this MOU is to fulfill the requirements of Commission Resolution No.
4517 and to describe and formalize the goals, guidelines, rights and obligations of TPL and the City
in creating the Park, and to guide the parties in their collaborative efforts to successfully complete
the Park Project.
NOW, THEREFORE, in order to define the goals, guidelines, rights and obligations of the
Parties toward each other and toward third parties in carrying out the creation of the Park as
contemplated by Commission Resolution No. 4517, TPL and the City agree as follows:
AGREEMENT
1. General Description of Park Project. The general goals of the Park Project are to create a
public park on the Park Property; serve as a central hub linking City and Gallatin County trails;
provide fishing and recreation access to the East Gallatin River; and improve water quality for
the City through the wetland and stream restoration work described below. The goal of the
Parties is to include the following components in the Park Project:
1.1 an active recreational area of approximately 20 acres lying north of East Griffin Drive
including such typical park amenities as a parking lot, sheltered picnic tables, benches,
restrooms, signage and fencing, playgrounds and active play areas, an enclosed off-leash
dog area and a network of trails and paths, and
1.2 a passive recreational area of approximately 35 acres lying south of East Griffin Drive
that will be left largely in its natural condition and used as a wetlands and wildlife
sanctuary traversed by trails and barrier-free accessible paths, providing a scenic refuge
and a living classroom demonstrating the importance of wetlands to water quality and
ecological health.
The Parties understand and agree that certain features as represented on the Conceptual Park Plan
(Exhibit B) may not be constructed as they may not be included in the Park Master Plan and/or
detailed phased site plans approved by the City Commission.
Once acquired by the City, the Park Property shall be designated as open-space land for purposes
of the Open Space Land and Voluntary Conservation Easement Act (Title 76, Chpt. 6, MCA).
2. Specific Park Projects Tasks to be Completed. The Parties acknowledge that the foregoing
Section 1 reflects the general goals of the Park Project as approved by the City Commission, and
that the general goals will be incorporated into a master site development plan (the “Park Master
Plan”) following the City’s planning process. Therefore the list of specific project tasks to be
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completed, and the party responsible for completing the tasks, will need to be informed by the
results of the planning process and this MOU may be amended accordingly from time to time as
mutually agreed by the Parties as the planning documents are completed.
Identified Specific Park Project Tasks. Notwithstanding the foregoing, TPL and the City have
identified a number of specific tasks that will be completed in any event. Those tasks consist of
the following:
2.1 Ecological Restoration. In order to improve the ecological health of the wetland and
riparian areas on the Park Property, TPL has or will undertake a number of wetland and
floodplain restoration activities on the Park Property that will include the removal and
disposal of rip rap, concrete, trash and other debris from the East Gallatin River,
expansions of the East Gallatin River floodplain in general conformance with the
Floodplain Development Permit issued August 22, 2014 for the Park Property, the
installation of sediment and erosion control features, the filling of drainage ditches and
naturalization of an existing groundwater-fed pond, creation of a backwater slough along
Bozeman Creek, and wetland, riparian and upland reclamation and seeding for vegetative
diversity (the “Ecological Restoration”). TPL has initiated the Ecological Restoration
work. Following the conveyance of the Park Property to the City, TPL will continue to
be responsible for the completion of the Ecological Restoration work and will, for a
period of at least one year after completion, continue to periodically monitor, maintain,
and supplement the restoration work in order to help ensure that the restoration work is
successful to the extent reasonably possible. Any maintenance agreements entered into
by TPL as a condition of grant(s) received by TPL related to the Ecological Restoration
will be assigned to the City. The City will grant to TPL and its contractors a temporary
construction easement or license through the duration of the Ecological Restoration work
to allow TPL to continue the Ecological Restoration work once the Park Property is
conveyed to the City, but will otherwise have no responsibility for its completion. TPL
will be responsible for all contract payments to TPL staff, contractors and subcontractors
performing the Ecological Restoration work. The cost of the Ecological Restoration
work shall not be paid or deducted from the TPL Contribution, but shall be paid for by
TPL using funds other than the TPL Contribution. The Ecological Restoration work shall
not be considered a public work and shall not be subject to the requirements of Section 4
relating to the City’s procurement requirements.
2.2 Removal of Structures. There are a number of derelict and abandoned structures on the
Park Property. During its ownership of the Park Property, TPL has arranged for the
demolition and removal of those structures known as the farmstead or farmplex structures
located on Tract 17 COS 2865 and the garage building located on Tract 1 COS 2865.
The costs incurred by TPL, including contract payment to third parties, will be included
as part of the TPL Contribution. Following the conveyance of the Park Property to the
City, the City will be responsible for deciding whether it wants to retain or demolish and
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remove the two remaining historic buildings (Vollmer Slaughterhouse and Rendering
Plant, located on Tract 1 COS 2865) in accordance with applicable historic district
regulations. If the City elects to retain some or all of such structures, the City shall be
responsible for any rehabilitation or restoration work necessary to preserve and maintain
such structures to make them safe for use as part of the Park. TPL may elect to
participate in cost-sharing of such activities as part of the TPL Contribution.
3. Private Fundraising Campaign. TPL will design and implement a private fundraising
campaign for TPL’s Contribution to the Park Project (the “Campaign”). The goal of the
Campaign will be to raise sufficient private funds to cover the TPL Contribution, as well to raise
sufficient funds to cover the costs of conducting the Campaign itself. TPL will use reasonable,
good faith efforts to raise private funds in an amount sufficient to at least equal the TPL
Contribution. All cash donations or grants received by TPL as part of the Campaign will be held
by TPL prior to disbursement of such funds for design and construction of the Park Project
pursuant to the terms of this MOU. TPL will be responsible for (i) collecting all gifts, (ii)
acknowledging each gift, (iii) providing regular updates on the progress of the fundraising efforts
to the City, and (iv) disbursing such funds to cover agreed-upon Park Project-related costs. The
City acknowledges and agrees that, while TPL shall use reasonable and good faith efforts to
achieve its fundraising target, TPL is not a guarantor of such funds. TPL agrees to keep the City
informed of its progress on the Campaign as part of the Parties’ regular progress meetings during
the life of the Park Project.
4. Project Management. The Parties intend to work together in a collaborative manner for the
development of the Park, allowing the Park Project to benefit from each Party’s particular
expertise and skills. The Parties intend that TPL will manage the overall design, development,
and construction through completion of the Park and that the City will be responsible for costs
associated with the construction and installation of certain park infrastructure, as was
contemplated in the allocation of tasks in the preliminary park budget included in TPL’s
application to the TOP program. The Parties also intend that TPL will follow the same
procurement requirements the City would be required to follow for a public works project.
4.1 Park Master Planning Process. TPL will engage the services of a professional design
firm to refine the conceptual site plan submitted by TPL with its TOP program
application into the Park Master Plan. TPL will work with the City’s Recreation, Parks
and Advisory Board to coordinate all required public meeting requirements in accordance
with state open meeting laws in order to obtain the City’s review and approval of the Park
Master Plan. TPL will be responsible for costs incurred in connection with the work of
the design firm commissioned by TPL. All fees paid by TPL for (i) work on planning
and design of the Park since the City Commission’s adoption of Resolution 4517 on
March 24, 2014 and (ii) to the selected design firm and any other third party in preparing
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the Park planning documents may be included by TPL as part of the TPL Contribution.
Once completed, the Park Master Plan will be added as an Exhibit and incorporated in the
MOU.
4.1.1 Selection Process. TPL’s selection of the design firm will comply with all applicable
state laws and City policies.
4.1.1.1 TPL will issue a request for qualifications/proposal (RFQ/P) to select the design
firm.
4.1.1.2 The City will participate in the RFQ/P process by (i) reviewing the RFQ/P before
it is advertised, and (ii) participating on the selection committee tasked with
reviewing submittals and selecting the design firm.
4.1.2 Contract With Design Firm. Once the design firm is selected, TPL will contract
directly with the selected firm. Prior to execution of this contract, TPL will provide
the City the draft contract for City comment and input into the scope of work to be
included. The contract must require the selected design firm to:
4.1.2.1 Comply with all applicable state laws and City policies for procurement,
including bidding, nondiscrimination and State of Montana prevailing wages
requirements.
4.1.2.2 Finalize the Park Master Plan in a form for approval by the City in accordance
with City requirements.
4.1.2.3 Upon approval of the Park Master Plan, create detailed engineering documents for
review and approval in accordance with City requirements including review and
approval of the site plan by the City Commission and by the City’s Design
Review Committee (DRC).
4.1.2.4 Obtain all required construction permits.
4.1.2.5 Require that all of the design firm’s contracts with its subcontractors comply with
applicable state laws and City purchasing requirements, including bidding,
nondiscrimination and prevailing wage requirements.
4.1.2.6 Indemnify the City and maintain insurance sufficient to satisfy its indemnification
obligations naming the City as additional insured.
4.1.2.7 Require that all of the design firm’s subcontractors indemnify the City and
maintain insurance sufficient to satisfy its indemnification obligations naming the
City as additional insured.
4.2 Construction Management. The parties intend that TPL, through the selected design
firm, will manage and contract for all phases of park development and construction, in
accordance with the approved site plans.
4.2.1 The City will grant to TPL, its agents, employees and invitees an easement or license
to enter onto the Park Property at all reasonable times following conveyance to the
City but prior to completion of the Park in order to allow TPL to carry out the
activities, inspections and other tasks required or contemplated by this MOU.
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4.2.2 TPL will include the City in evaluation of bids and submittals for conformance to
approved site plans and City requirements as TPL awards bids to the lowest
responsible bidder.
4.2.3 TPL will include the City in review and approval of all contract change orders.
4.2.4 For components of the Park construction the City has agreed to pay from TOP Bond
Funds, TPL will submit to the City’s Representative, on a monthly basis, a written
request for payment. The payment request must include supporting documentation
including invoices, receipts, etc. The City’s Representative will review the payment
request and upon approval will pay through the City’s accounts payable process.
4.2.5 TPL and its construction manager will conduct on-site construction inspections on a
regular schedule to ensure work is being done in a timely manner consistent with the
applicable contract, and will participate in regular progress meetings with the City
and generally keep the City informed on the progress of all such work.
4.2.6 If TPL or any of its contractors discovers any environmental contamination during the
project, all work will stop within the affected area, TPL shall notify the City, and such
work shall not resume until the City and TPL agree upon a mutually satisfactory
resolution.
5. Park Project Budget. The City and TPL have developed a preliminary budget for the Park
Project, a copy of which is attached to this MOU as Exhibit C and hereby incorporated by this
reference (the “Project Budget”). The Project Budget is preliminary in nature, based on the
information known to the Parties as of the date of this MOU. The Project Budget will be
updated, amended and refined over time as a result of the planning process and the results of
construction bidding.
5.1 Once the Park Master Planning process has been completed and the estimated costs of the
various components of the Park have been better identified, then the Project Budget will
be revised to identify specific costs related to on-site Park improvements, as well as
which party will be responsible for the cost of which tasks and how the cost of those
tasks will be funded. The Revised Project Budget will, to the extent possible, identify
which budget items TPL will pay for using in-kind services, which will be paid for with
funds contributed by TPL, and which will be paid for using funding from the TOP Bond
Fund. TPL and the City will at all times manage the Park Project in such a manner as to
ensure that the Park is constructed consistent with the approved Park Master Plan and
budget as approved by the City Commission. The Revised Project Budget agreed upon
by the Parties will be attached to this MOU as an amendment and incorporated herein by
reference.
5.2 As to budget items to be paid for with the TPL Contribution, the parties will agree to the
specific timing and documentation required in order to release such funds. TPL agrees to
provide invoices and such other documentation sufficient to evidence to the City’s
satisfaction the value of any in-kind contributions to the Park Project. Where the value of
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the in-kind contribution is not readily ascertainable, TPL’s contribution will be at the
rates established in then-current Bureau of Labor Statistics Schedule of Occupational and
employment Wage Estimates for the State of Montana (available at
http://www.bls.gov/oes/current/oes_mt.htm#47-0000) or as otherwise mutually agreed by
the Parties.
5.3 Costs to be paid by the City must be approved by the City in writing after bidding and
prior to construction contract award to ensure costs to be paid are substantially in
conformance with the Revised Project Budget as approved by the City Commission. If
the construction contract bid exceeds the amount budgeted for park improvements in the
Master Park Plan, an amendment to the Revised Project Budget must be presented to the
Commission for approval before construction commences.
5.4 Each Party has control over allocation of contingency funds identified in the project
budget as being associated with that Party.
6. Ownership of Park Project. Upon the completion of all work to be performed by TPL on the
Park Project, the City agrees to accept ownership of such work so long as (i) the City has
inspected the work after receiving written notice from TPL that all of TPL’s required work on
the Park Project has been completed, and the City has confirmed to its reasonable satisfaction
that TPL’s share of the work on the Park Project has been completed in accordance with the
planning documents approved by the City and all other applicable requirements, (ii) TPL has
provided the City with copies of all project plans, specifications, as-built drawings, and other
documentation created by or received by TPL in connection with TPL’s work on the Park
Project. At such time, if not before, TPL will assign to the City any and all warranties available
with respect to any equipment and/or the installation services. Following such acceptance by the
City, the City shall issue to TPL an acceptance letter in form and substance reasonably
satisfactory to the Parties, pursuant to which the City agrees to fully release TPL with respect to
any and all claims, damages or liability resulting directly or indirectly from any use of the Park,
provided, however, that such release shall not modify, amend and/or negate the provisions of any
warranties assigned to the City in connection with the Park Project.
7. Signage. Following completion of the Park Project, in addition to any signage installed by the
City, a permanent sign acknowledging TPL will be installed at TPL’s expense in a location in the
Park mutually acceptable to the City and TPL. TPL and the City will create a mutually
acceptable donor recognition plan to guide acknowledgement of donors to the Park Project. All
signs erected or posted in the Park shall conform to City sign permit requirements.
8. Press Releases; Publicity; Events. TPL shall provide the City with advance notice of any
significant public outreach or publicity events relating to the Park Project and the Campaign, an
opportunity for participation. It is not anticipated that the City will be involved in the planning
or execution of such events, nor is it anticipated that a representative of the City need attend any
or all of such events. To facilitate its fundraising efforts in connection with the Park Project,
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TPL may issue press releases, hold promotional events and/or take other steps to raise public
awareness regarding the Park Project.
9. Miscellaneous.
9.1 Notices. Notices to the Parties shall be directed as follows:
If to the City:
The City of Bozeman
City Hall
121 North Rouse
Bozeman, Montana 59771-1230
Attention: Carolyn Poissant
E-mail: cpoissant@bozeman.net
If to TPL:
The Trust for Public Land
Emerson Cultural Center, Suite 203
Bozeman, Montana 59715
Fax: (406) 522-7450
Attention: Maddy Pope
E-mail: maddy.pope@tpl.org
Any notice sent to a Party under this MOU shall be in writing and shall be effective when
received by the recipient. Each Party may change the address at which it is to receive notices by
providing written notice of its new address for notices to the other Party.
9.2 Governing Law; Venue. This MOU shall be governed by the law of the State of
Montana. The Parties expressly agree to the exclusive jurisdiction of the courts of
Gallatin County, Montana.
9.3 Liberal Construction. This MOU shall be liberally construed to achieve the successful
completion of the Park Project. If any provision in this MOU is found to be ambiguous,
an interpretation consistent with the spirit of collaboration and the mutual goals and
objectives of the Parties shall be favored over any interpretation that would be
inconsistent with such purposes and goals.
9.4 Severability. If any provision of this MOU is found to be invalid, the remainder of the
provisions of this MOU shall not be adversely affected.
9.5 Entire Agreement; Amendment; Assignment. This instrument sets forth the entire
understanding of the Parties with respect to the Park Project and supersedes all prior
discussions, negotiations, understandings, or agreements relating to the MOU, all of
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which agreements or understandings are merged into this MOU. No alteration,
amendment or modification of this MOU shall be valid or binding unless contained in a
written amendment signed by both Parties. It is contemplated that from time to time this
Agreement can be modified, if agreed by both Parties, to address developments in the
Park Project and/or the Campaign. TPL may not assign its rights or obligations under
this Agreement without the prior written consent of the City.
9.6 Successors. The terms, conditions, commitments, restrictions and understandings set
forth in this MOU shall be binding upon, and inure to the benefit of, the parties hereto
and their respective successors and assigns.
9.7 Captions. The captions in this MOU have been inserted solely for convenience of
reference and are not a part of this instrument and shall have no effect upon construction
or interpretation.
9.8 No Partnership or Agency. Neither Party shall be considered a partner or agent of the
other Party, and this MOU does not create a partnership or principal-agent relationship
between the Parties. Neither Party shall have any right, power or authority to create any
obligation, expressed or implied, on behalf of the other Party. The Park Project is a
public-private collaboration between two separate and independent entities, each of
which has a common interest in creating the Park at Story Mill, but each of which also
has objectives and activities outside the scope of the Park Project and this MOU. The
joint effort being formed by the City and TPL is not a separate legal entity and neither
TPL nor the City shall have the right to bind the other Party vis a vis any third party. The
purpose of the collaboration is to work together to complete the Park Project and achieve
the Parties’ common goals as stated in the Recitals above. While TPL and the City may
cooperate in the creation of other parks and open space in the future, the parties
acknowledge and agree that this Park Project is unique and the terms of this MOU shall
not create a binding precedent with respect to any future projects.
9.9 Indemnity and Release. TPL agrees to indemnify, defend and hold the City harmless
from and against any and all liability to any third party for or from loss, damage or injury
to persons or property in any manner arising out of, or incident to, negligent acts, errors,
omissions, or willful misconduct by TPL in the performance of its work on the Park
Project. Both the City and TPL shall be solely responsible for any contracts they enter
into or other obligations or liabilities incurred by such party in connection with their
respective roles under this MOU and the Park Project.
9.10 Nondiscrimination. The Parties agree that all hiring by the Parties of persons
performing this Agreement shall be on the basis of merit and qualifications. The Parties
will have a policy to provide equal employment opportunity in accordance with all
applicable state and federal anti-discrimination laws, regulations, and contracts. The
Parties will not refuse employment to a person, bar a person from employment, or
discriminate against a person in compensation or in a term, condition, or privilege of
employment because of race, color, religion, creed, political ideas, sex, age, marital
403
status, national origin, actual or perceived sexual orientation, gender identity, physical or
mental disability, except when the reasonable demands of the position require an age,
physical or mental disability, marital status or sex distinction. The Parties shall be
subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2,
United States Code, and all regulations promulgated thereunder. The Parties shall require
these nondiscrimination terms of its subcontractors providing services under this
Agreement.
9.11 Compliance with Laws. The Parties shall comply fully with all applicable state and
federal laws, regulations, and municipal ordinances including, but not limited to, all
workers’ compensation laws, all environmental laws including, but not limited to, the
generation and disposal of hazardous waste, the Occupational Safety and Health Act
(OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50,
Chapter 71, MCA, all applicable City, County, and State building and electrical codes,
the Americans with Disabilities Act, and all non-discrimination, affirmative action, and
utilization of minority and small business statutes and regulations.
9.12 Nonwaiver. A waiver by either Party of 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 condition or to pursue any available legal or equitable rights in the event of
any subsequent default or breach.
9.13 Attorney’s Fees and Costs. 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 or to
give any notice required herein, then 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 City Attorney.
9.14 No Third-Party Beneficiary. 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.
9.15 Counterparts. This Agreement may be executed in counterparts, which together constitute one
instrument.
By signing below, each Party agrees and acknowledges that this Memorandum of Understanding
accurately reflects their mutual understanding, and that each of them agrees to be bound by the terms
and conditions of this Memorandum of Understanding.
404
THE CITY OF BOZEMAN THE TRUST FOR PUBLIC LAND
BY: __________________________ BY: _________________________
TITLE: _______________________ TITLE: ______________________
DATE:________________________ DATE: _______________________
Approved as to form:
By: ________________________
City of Bozeman, City Attorney
405
EXHIBIT A
Legal Description of Park Property and Certificate of Survey
Legal Description
1. Parcel 1 of COS 2865, Document #2496371 (Tract C1-A of COS 1877B); 2. Parcel 2 of COS 2865 (Tract A of COS 2505 and COS 2547);
3. Parcel 3 of COS 2865 (Tract 1 of COS 2503 and COS 2547);
4. Parcel 4 of COS 2865 (Bridger View Mobile Home Court #2, Film 15, Page 681 and COS 2547); 5. Parcel 5 of COS 2865 (Tract 2B of COS 2207B and COS 2547);
6. Parcel 6 of COS 2865 (Tract described on Deed Document #2476991 and depicted on COS 1471 and COS 2547);
7. Parcel 7 of COS 2865 (Tract 5A of COS 1147B); 8. Parcel 8 of COS 2865 (Tract 17 of COS 2479A and COS 2547); and
9. Parcel 9 of COS 2865 (Tract A of Subdivision Plat J-42 and COS J-42-B)
All located within Sections 31 & 32, T1S, R6E, and Sections 5 & 6 T2S, R6E, P.M.M., City of Bozeman, Gallatin
County, Montana.
406
407
408
EXHIBIT B
Conceptual Park Plan
409
410
EXHIBIT C
Preliminary Park Budget
411
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Story Mill Community Park: Real Estate Purchase and Sale Agreement Buyer’s Initials Page 1 of 9 Seller’s Initials
REAL ESTATE PURCHASE AND SALE AGREEMENT
BETWEEN THE CITY OF BOZEMAN AND THE TRUST FOR PUBLIC LAND
This Real Estate Purchase and Sale Agreement (“Agreement”) is made and entered into
this ____day of _____________, 2014, by The Trust for Public Land, a nonprofit California
public benefit corporation with a mailing address of 111 South Grand Avenue, Suite 203,
Bozeman, Montana, 59715 (“Seller”) and The City of Bozeman, a Montana municipal
corporation (“Buyer” or the “City” and together with Seller the “Parties”), with a mailing address
of 121 North Rouse, P.O. Box 1230, Bozeman, Montana 59771.
RECITALS:
A. Seller is the owner of that certain real property located in the City of Bozeman,
Gallatin County, Montana described on Exhibit A attached hereto and hereby incorporated by
this reference (the “Land”), together with the following:
(a) All rights, privileges, easements and appurtenances to the Land
including, without limitation, all of Seller’s right, title and interest in and
to all mineral and water rights, if any (and without warranty), and all
easements, rights-of-way and other appurtenances used or connected with
the beneficial use or enjoyment of the Land (the Land, any improvements
thereon, and all such easements and appurtenances are sometimes
collectively hereinafter referred to as the “Property”); and
(b) All right, title and interest of Seller (if any) in and to all land use steps
or actions taken or initiated by Seller including site plans; plats; surveys;
inspections; tests; drainage, grading, soil and substratus studies;
environmental, wildlife and mineral studies; utility (water, sewer, natural
gas, telephone, cable TV, or electricity, as applicable) studies or
agreements; marketing and/or development studies; traffic studies; water
rights studies; entitlement and zoning information; governmental and
private party applications and approvals; proposed plats; re-platting;
approved or proposed development plans; proposed or approved
amendments to existing covenants, conditions, and restrictions of record;
plans specifications and working drawings for any buildings,
improvements and structures that are located on and/or are planned to be
constructed on the Land; warranties for equipment, installation, and
landscaping; and other plans, studies, data, or materials of any kind,
whether in written or computer (or other electronically) based or
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retrievable form if existing and Seller’s possession or control (including
any of the foregoing prepared by consultants or other third parties on
behalf of Seller) that relate to the Property other than documents or
information that are privileged or have been provided to Seller under a
binding confidentiality agreement (collectively, the “Property
Documents”). If this Agreement is terminated as permitted hereunder or
the purchase and sale of the Property fails to close because of a failure of
any of the Buyer’s or Seller’s Conditions Precedent (as set forth in
Sections 12 and 13 below), Buyer shall promptly return to Seller all copies
of the Property Documents Seller has previously provided to Buyer.
B. The City Commission of the City of Bozeman authorized the purchase of the
Property under the terms set forth in Commission Resolution No. 4517, adopted on March 24,
2014.
C. Buyer wishes to purchase the Property from Seller and Seller wishes to sell the
Property to Buyer on the terms of this Agreement.
AGREEMENTS:
1. Sale and Purchase. Buyer agrees to purchase the Property from Seller and Seller
agrees to sell the Property to Buyer for a price of $2,650,000.00 (Two Million Six Hundred Fifty
Thousand Dollars) (the “Purchase Price”). Buyer and Seller understand and acknowledge that,
prior to the conveyance of the Property to Buyer under this Agreement, Seller will be engaging
in a number of land use actions that are intended to improve the Property and enhance it for
Buyer’s intended use. These actions include initiating work to restore the wetlands and
floodplain on the Property, and removing one or more structures from the Land, and are more
fully described in a binding Memorandum of Understanding between the Parties dated December
__, 2014 (“MOU”) . All of these actions are being taken with the knowledge and consent of
Buyer pursuant to the MOU for the purpose of enhancing the Property for Buyer’s intended use.
Therefore, regardless of the impact any such actions might have on the appraised fair market
value of the Property, there shall be no adjustment made to the Purchase Price to reflect any
changes to the Property resulting from any approved work or activities conducted by Seller.
Seller hereby forever releases and waives any claim against Buyer for payment for any amount
for the Property in excess of the Purchase Price.
2. Payment of Purchase Price. At Closing, Buyer shall pay the Purchase Price in
cash (by cashier’s check or wire transfer).
3. License for Seller’s Use of the Property after Closing. Buyer and Seller shall
enter into the License Agreement attached hereto as Exhibit C and incorporated herein by
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reference prior to Closing and to be effective immediately upon Closing for the purposes of
providing permission for Seller to complete improvements to the Property begun by Seller prior
to the transfer of the Property by the Seller to the Buyer and for other purposes as set forth in the
MOU.
4. Closing. The transaction contemplated by this Agreement shall close on a date
mutually agreeable to Seller and Buyer, but, unless agreed to by the Parties, no later than
December 31, 2014 (the “Closing”) or (“Closing Date”). The Closing will be at Security Title in
Bozeman, Montana. Seller will pay for the cost to release liens, if any, and any other documents
necessary to convey clear title to the Buyer. Seller shall pay the escrow fee, the premium on a
standard homeowner’s title insurance policy in favor of Buyer in the amount of the Purchase
Price, and the recording fee for the statutory warranty deed. Real Property taxes and any special
assessments still existing on the Property as of the date of Closing shall be prorated and paid by
Seller as of the date of Closing based upon the latest available tax bill.
5. Preliminary Title Commitment. Within ten (10) days after mutual execution of
this Agreement, Seller shall order a Property Preliminary Title Commitment showing the
condition of title to the Property in the amount of the Purchase Price, together with legible copies
of all instruments of record affecting the Property from Security Title in Bozeman, Montana.
6. Deeds. At Closing, Seller shall execute and deliver to Buyer a statutory warranty
deed conveying marketable title to the Property to Buyer, free and clear of all liens and
encumbrances, subject only to easements, declarations, covenants, conditions, restrictions and
other matters of record as are acceptable to Buyer. Seller shall convey by Bill of Sale and
Assignment executed by Seller, title to the Property Documents and any water rights (the “Bill of
Sale”).
7. Conditions Precedent. Buyer’s obligation to purchase the Property from Seller
is expressly contingent on Buyer’s satisfaction with each of the following conditions precedent:
7.1 Buyer having conducted on or before seven (7) days prior to the Closing
Date an inspection of the Property and approved the physical condition of
the Property (including but not limited to review of soils, environmental
condition, septic, wells, zoning, title, and any other due diligence required
by Buyer (“Buyer’s Due Diligence Period”)). During the Buyer’s Due
Diligence Period, Seller will allow Buyer access to the Property upon prior
notice and will allow Buyer and/or Buyer’s agents to conduct such
inspections or examinations as Buyer deems necessary. Buyer may at any
time prior to the end of the Buyer’s Due Diligence Period, by written
notice delivered to Seller, elect to either (i) purchase the Property (subject
to any other conditions contained herein), in which event this Agreement
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shall continue to be in full force and effect or (ii) terminate this
Agreement. Failure to give such notice shall be deemed an election by
Buyer to waive its right to terminate pursuant to this Section 7.1. Upon
Seller’s receipt of written notice terminating the Agreement or the failure
of Buyer to respond one way or the other prior to the expiration of the Due
Diligence Period, this Agreement shall immediately terminate and be no
further force or effect.
7.2 Buyer shall have approved the Preliminary Title Commitment.
7.3 Buyer and Seller shall have entered into the MOU providing for
the design and construction of a public park on the Property (the
“Park”). The MOU shall be mutually agreeable to Buyer and
Seller and shall have been approved by the Bozeman City
Commission.
7.4 The foregoing conditions are for the sole benefit of Buyer and
Seller respectively. In the event the foregoing conditions are not
satisfied or waived prior to Closing, then either Party may
terminate this Agreement, and any earnest money and accrued
interest held in escrow for the benefit of Buyer shall be returned to
Buyer.
8. Title Insurance. At Closing, Seller shall, at its expense, provide Buyer a
standard owner’s policy of title insurance for the Property in a sum equal to the Purchase Price,
insuring Buyer against loss or damage sustained by it by reason of the unmarketability of its title,
or encumbrances thereon, other than the exceptions contained in such policies which Buyer
previously has approved. Buyer shall be responsible for the cost of any extended title insurance
or endorsements to the title insurance policy.
9. Delivery of Documents. Seller agrees, within ten (10) business days of mutual
execution of this Agreement, to provide Buyer with complete copies of any and all Property
Documents in Seller’s, or their agents’ possession, as defined in Recital A above. Both Parties
agree to execute and deliver to the other at or after the Closing, at requestor’s expense, any and
all further instruments and documents as either may reasonably request in order to carry out the
provisions of this Agreement.
10. Taxes and Assessments. Real property taxes, and any special assessments for the
current year shall be prorated as of Closing and such prorations shall be a final proration and not
subject to adjustment.
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11. Water. To the extent any water rights exist on the Property they will be
transferred to Buyer at Closing. Seller shall, at or within a reasonable time after Closing, prepare
and file all documents necessary to effectuate the transfer of water rights to Buyer.
12. Seller’s Representations. Seller represents and warrants to Buyer, as of the
Effective Date and again on the Closing, that:
12.1 Litigation. Seller has no knowledge of any pending or threatened claims,
actions, suits, litigation, governmental investigations, or judicial or
administrative proceedings, arbitrations, grievance proceedings or unfair
labor practice claims involving the Property or Seller’s actions with
respect thereto, or which might impede the closing of the transaction
contemplated under this Agreement, or which would interfere with
Buyer’s intended use of, and benefit from, the Property. There are no
judgments existing against Seller in any court of competent jurisdiction
which constitute or might be construed to constitute a lien of any nature
upon the Property.
12.2 Bankruptcy. No attachments, execution proceedings, assignments for the
benefit of creditors, insolvency, bankruptcy, reorganization or other
proceedings are pending or threatened against Seller, nor are any of such
proceedings contemplated by Seller.
12.3 Condemnation. There are no pending or threatened condemnation,
eminent domain or similar proceedings affecting the Property or any
portion thereof, nor does the Seller have any knowledge that any such
action is presently contemplated.
12.4 Special Assessments. There are no outstanding special assessment or
special taxes due on the Property, and Seller has no knowledge of any
pending assessments affecting the Property.
12.5 Title to Property. At Closing, Seller will convey fee simple title to the
Property, and will have good, marketable, and insurable title to the
Property, free and clear of all liens, encumbrances, claims, covenants,
conditions, restrictions, easements, rights of way, land use, zoning and
other government regulations, options, judgments, or other matters, except
as disclosed on the Preliminary Title Commitment and approved by
Buyer.
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12.6 Compliance. Seller has received no notice of any governmental agency or
authority having jurisdiction over the Property that the Property is
currently in violation of any law, ordinance, or regulation applicable to the
Property.
12.7 Environmental. To the best of Seller’s knowledge, and except as may be
identified in any environmental site assessment report that Seller has
provided to Buyer, the Property does not contain and has not been used in
any manner for the storage of any hazardous or toxic waste, materials,
discharge, deposit, dumping, or contamination, whether of soil,
groundwater or otherwise and no activity on the Land has produced any
such substances. To the best of Seller’s knowledge, no underground
storage tanks are located on the Property.
12.8 Authority. Seller has the legal power, right, and authority to enter into this
Agreement and the instruments referenced herein and, as of the Closing
Date, to consummate the transactions contemplated hereby. The execution
of this Agreement and the Closing will not violate any other agreement of
Seller or to which Seller is bound. Seller represents that it is the sole
owner of the Land.
12.9 No Rights of Others. 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.
12.10 At Closing, all of the above representations shall continue to be true and
correct. Seller hereby covenants with Buyer that from the date hereof until
the Closing, no part of the Property, or any interest therein, will be sold or
otherwise transferred or encumbered without Buyer’s prior written
consent.
All of the representations and warranties of Seller contained in this Section are
material, none shall merge into the deeds herein provided for, and all shall survive
the Closing Date or termination of this Agreement.
13. Buyer’s Representations. In addition to any express agreements of Buyer
contained herein, the following constitute representations of Buyer to Seller:
13.1 Buyer has the legal power, right, and authority to enter into this
Agreement and the instruments referenced herein and to consummate the
transactions contemplated hereby.
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13.2 Buyer will fully inspect and examine the Property. Buyer is relying on its
own independent judgment regarding the Property’s value, condition and
potential use.
13.3 Buyer acknowledges the disclosures of Seller contained in Exhibit B,
which are incorporated by this reference.
All of the representations of Buyer contained in this Section are material, none
shall merge into the deeds herein provided for, and all shall survive the Closing
Date or termination of this Agreement.
14. Possession. Buyer shall be entitled to possession of the Property immediately
upon Closing, subject to Buyer’s grant of a license to access the Property (attached hereto as
Exhibit C) to complete the work provided for in the MOU.
15. Remedies. Time is of the essence of this Agreement.
If the Seller fails to close under the provisions of this Agreement because of Seller’s
default, then the Buyer shall have as the Buyer’s sole 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.
If the Buyer fails to close under the provisions of this Agreement because of the 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 the Buyer; or
(ii) Enforcing specific performance by the Buyer of the Buyer’s obligations under this
Agreement.
For all other breaches by a Party of the express representations, warranties, continuing
obligations, made or given in this Agreement (including the attached exhibits), the other
Party shall have any and all remedies available to it in law or in equity.
16. Risk of Loss.
Seller assumes all risk of loss or damage to the Property by any cause 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 sale of the
Property, then the Buyer, at its option, shall have no obligation to complete the purchase on the
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Closing Date 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 the Buyer at Closing.
In addition, prior to Closing, Seller without written consent of Buyer shall not place any
new easements or grant additional rights-of-way over the Property which cannot be removed by
Seller prior to Closing.
Nothing in this Section 16 shall be deemed to prevent Seller from making its ordinary
and usual uses of the Property prior to Closing, including such activities as group tours, hiking,
outdoor education, etc. And nothing in this Section 16 shall be deemed to prevent or limit Seller
from engaging in such activities as well as the land use actions or activities specifically referred
to in this Agreement and/or the MOU (such as the ecological restoration work and the removal of
identified structures from the Property) both prior to and following Closing.
17. Binding Effect. This Agreement is binding upon and shall inure to the benefit of
the parties and their respective heirs, legal representatives and assigns.
18. Attorneys Fees. If suit, action, or other proceeding of any nature whatsoever
(including any proceeding under the U.S. Bankruptcy Code) is instituted in connection with any
controversy arising out of this Agreement or to interpret or enforce any rights hereunder, the
prevailing Party shall be entitled to recover its attorney fees, experts’ fees and all other fees,
costs, and expenses (to include fees and costs of the Bozeman City Attorney’s Office) actually
incurred and reasonably necessary in connection therewith, as determined by the court at trial or
on any appeal or review, in addition to all other amounts provided by law.
19. Notices. All notices or deliveries required under this Agreement shall be hand
delivered or given by facsimile transmittal, regular mail, e-mail, or overnight courier directed to
the telecopier number, e-mail address or street address of Buyer and Seller set forth under their
signatures. All notices so given shall be considered effective, if hand-delivered, when received; if
delivered by facsimile transmittal, upon telephone confirmation of receipt; if delivered by e-mail,
upon electronic confirmation of delivery to the addressee; if delivered by courier, one business
day after timely deposit with the courier service, charges prepaid; or if mailed, three days after
deposit, first class postage prepaid, with the United States Postal Service. Either Party may
change the address to which future notices shall be sent by notice given in accordance with this
Section.
20. Modification. This Agreement may not be modified except by a written
agreement executed by both Parties.
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21. Jurisdiction and Venue. This Agreement shall be construed in accordance with
Montana law. Jurisdiction for any dispute or claim raised under this Agreement or proceeding
brought to interpret the Agreement shall lie solely in the State of Montana, Gallatin County.
22. Brokers or Third Parties. Each Party represents to the other that no Party has
any claim for compensation or expenses as a result of this transaction and each Party shall
indemnify the other against any claims for commissions or other compensation by any other
broker, finder or third party with whom the indemnifying Party has dealt.
23. Facsimile. This Agreement, plus any modifications, may be transmitted by
facsimile or electronic transmission. The Parties agree that their signatures which are copied on
the transmitted documents shall be binding as if they were original signatures. Each Party agrees
to fully execute with original signatures on all original documents following execution of
facsimile transmitted.
24. Counterparts. This Agreement may be executed by the Parties in counterparts,
each of which when executed and delivered shall be an original, but all of which together shall
constitute one and the same instrument.
25. Assignment. Either Party may assign this Agreement to a third party only with
the advance written consent of the other Party, which consent shall not be unreasonably
withheld.
26. Survival. Sections 8-13, 15, 17, 18, 19, 20, 21, 27 and 29 shall survive Closing.
27. 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.
28. Entire Agreement. This Agreement and the MOU constitute a full and final
expression by the parties and supersedes all prior oral or written negotiations and agreements
regarding the Property.
29. 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.
Signatures to Follow
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BUYER:
The City of Bozeman, a political subdivision
of the State of Montana
Dated: ________________________ By ________________________________
Time: ________________________
Address: 121 N. Rouse, PO Box 1230,
Bozeman MT 59771
Phone: 406-582-2321
Federal Tax ID #: 81-600238
SELLER:
The Trust for Public Land, a non-profit California public benefit corporation
Dated: ________________________ By ________________________________
Time: ________________________
Address: 111 South Grand Avenue, Suite 203, Bozeman, Montana, 59715
Phone: 406-522-7450
Federal Tax ID #: 23-7222333
422
License Agreement for the Story Mill Community Park
Page 11 of 10
EXHIBIT A (Legal Description)
Legal Description
1. Parcel 1 of COS 2865, Document #2496371 (Tract C1-A of COS 1877B); 2. Parcel 2 of COS 2865 (Tract A of COS 2505 and COS 2547);
3. Parcel 3 of COS 2865 (Tract 1 of COS 2503 and COS 2547); 4. Parcel 4 of COS 2865 (Bridger View Mobile Home Court #2, Film 15, Page 681 and COS 2547);
5. Parcel 5 of COS 2865 (Tract 2B of COS 2207B and COS 2547); 6. Parcel 6 of COS 2865 (Tract described on Deed Document #2476991 and depicted on COS 1471 and COS
2547); 7. Parcel 7 of COS 2865 (Tract 5A of COS 1147B);
8. Parcel 8 of COS 2865 (Tract 17 of COS 2479A and COS 2547); and 9. Parcel 9 of COS 2865 (Tract A of Subdivision Plat J-42 and COS J-42-B)
All located within Sections 31 & 32, T1S, R6E, and Sections 5 & 6 T2S, R6E, P.M.M., City of Bozeman,
Gallatin County, Montana.
423
License Agreement for the Story Mill Community Park
Page 12 of 10
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License Agreement for the Story Mill Community Park
Page 13 of 10
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License Agreement for the Story Mill Community Park
Page 14 of 10
EXHIBIT B
DISCLOSURES Radon Disclosure Statement
The following disclosure is given pursuant to the Montana Radon Control Act, Montana
Code Annotated Section 75-3-606.
RADON GAS: RADON IS NATURALLY OCCURRING RADIOACTIVE GAS
THAT, WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT
QUANTITIES, MAY PRESENT HEALTH RISKS TO PERSONS WHO ARE
EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT EXCEED FEDERAL GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN
MONTANA. ADDITIONAL INFORMATION REGARDING RADON AND
RADON TESTING MAY BE OBTAINED FROM YOUR COUNTY OR
STATE PUBLIC HEALTH HOUSE.
If any building on the Property has been tested for radon, the Seller will provide a copy of the
test results concurrent with an executed copy of this Agreement. If any building has received
radon mitigation treatment, the Seller will provide the evidence of the mitigation treatment
concurrent with an executed copy of this Agreement. The furnishing of test results is not to be
construed as a promise, warranty, or representation of any sort by the Seller or the Seller’s agent that the test results are accurate or that any mitigation or treatment is effective.
Megan’s Law Disclosure
Pursuant to the provisions of Title 46, Chapter 23, part 5 of the Montana Code Annotated,
certain individuals are required to register their address with local law enforcement agencies as
part of Montana’s Sexual and Violent Offender Registration Act. In some cases law enforcement
offices will make the information concerning registered offenders available to the public. You
may contact the Sheriffs office, the Montana Department of Justice, or a County probation officer for further information.
Noxious Weeds
Buyer acknowledges the following noxious weeds disclosure: The laws of the State of
Montana require sellers of Property to notify buyers of Property that noxious weeds exist or
potentially exist on the Property being offered for sale. The State of Montana and Gallatin
County have established certain requirements for the control of noxious weeds. For information
concerning noxious weeds and a Property owner’s obligations, Buyer may contact either the local County extension agent or the County Weed Control Board.
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License Agreement for the Story Mill Community Park
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EXHIBIT C (License Agreement)
AFTER RECORDING PLEASE RETURN TO:
Stacy Ulmen
City Clerk, City of Bozeman
PO Box 1230
Bozeman, MT 59771-1230
LICENSE AGREEMENT FOR THE USE OF CITY PROPERTY
BY THE TRUST FOR PUBLIC LAND
This License Agreement (the “Agreement”) is an agreement between the City of Bozeman, a self
governing municipality operating pursuant to its Charter and the laws of the State of Montana,
with a mailing address of P.O. Box 1230, Bozeman, MT 59771 (the “City”) and The Trust for
Public Land, a nonprofit California public benefit corporation, with a mailing address of 111
South Grand Avenue, Suite 203, Bozeman, MT 59715 (hereinafter the “Licensee”, and together
with the City the “Parties”).
In consideration of Licensee’s promises herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as
follows:
1. Purpose. The City will be, upon purchasing the real property described in Exhibit
A (the “Property”) pursuant to the terms of the Real Estate Purchase and Sale Agreement
authorized by Commission Resolution No. 4572, owner of said Property and desires to authorize
Licensee to access the Property for purposes of completing certain improvements to the Property
pursuant to the Memorandum of Understanding (“MOU”) between the Parties authorized by
Commission Resolution No. 4572. The Parties agree this Agreement shall be executed prior to
the transfer of the Property from Licensee to the City but shall not be effective until such transfer
of the Property occurs.
2. Description of Property. The Property consists of the real property as described
in Exhibit A.
3. Title. Licensee hereby acknowledges this license grants a privilege and not an
interest in the Property and the title of the City to the Property, and Licensee agrees never to
deny such title or claim, at any time, or claim any interest or estate of any kind or extent
whatsoever in the Property by virtue of this Agreement or Licensee’s occupancy or use
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License Agreement for the Story Mill Community Park
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hereunder. The City may enter the site at any time to assert its real property interest or for other
purposes which do not unreasonably interfere with the activities of the Licensee authorized by
the MOU.
Upon termination of this Agreement, title to all permanent improvements on the Property and on
public rights-of-way adjacent to the Property made by Licensee or its agents shall vest in the
City, free and clear of all debts, liens and encumbrances. All other improvements of a
nonpermanent nature and all trade fixtures, machinery and furnishings made or installed by
Licensee may be removed from the Property at any time unless such improvements are a
component of the Park Project, as described in the MOU, or as otherwise agreed to by the City
and such removal will not damage the realty and/or permanent improvements.
4. License. The City hereby grants permission, revocable and terminable as
provided herein, during the period commencing January 1, 2015 until December 31, 2017 on
the terms and conditions set forth herein, which Licensee promises to comply with and abide by
to Licensee for Licensee’s fulfillment of its obligations as stated in the MOU, which
Licensee promises to comply with and abide by. Such permission shall include the
permission of Licensee to use the Property to fulfill its obligations under the MOU and for no
other purpose. The term of this License may be extended by mutual agreement of the Parties in
writing.
Licensee agrees to comply with all City ordinances and other rules and regulations regarding
permits and approvals related to operations on the Property as well as those of any other
governmental entity having jurisdiction.
5. Indemnification/Insurance.
a. To the fullest extent permitted by law, Licensee, recognizing it exercises its
privileges under this Agreement at its own risk, shall release, and shall
protect, defend, indemnify, and hold harmless the City and its agents,
representatives, employees, and officers from and against any and all claims,
demands, actions, fees and costs (including attorney’s fees and the costs and
fees of expert witness and consultants), losses, expenses, liabilities (including
liability where activity is inherently or intrinsically dangerous) or damages of
whatever kind or nature connected therewith and without limit and without
regard to the cause or causes thereof or the negligence of any party or parties
that may be asserted against, recovered from or suffered by the City,
occasioned by, growing or arising out of or resulting from or in any way
related to: (i) the occupation or use of the Property by Licensee; (ii) the
negligent, reckless, or intentional misconduct of the Licensee, its officers,
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License Agreement for the Story Mill Community Park
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employees, or agents on or related to the Property; and (iii) any negligent,
reckless, or intentional misconduct of any of the Licensee’s guests, invitees,
contractors, or subcontractors on or related to the Property.
Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist as to an indemnitee described in this Section. The indemnification obligations of this
Section must not be construed to negate, abridge, or reduce any common-law
or statutory rights of the indemnitee(s) which would otherwise exist as to such
indemnitee(s).
Licensee’s indemnity under this Section shall be without regard to and
without any right to contribution from any insurance maintained by City.
Should any indemnitee described herein be required to bring an action against the Licensee to assert its right to defense or indemnification under this
Agreement or under the Licensee’s applicable insurance policies required
below the indemnitee shall be entitled to recover reasonable costs and attorney
fees incurred in asserting its right to indemnification or defense but only if a
court of competent jurisdiction determines the Licensee was obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a
claim(s) or any portion(s) thereof.
In the event of an action filed against the City, the City may elect to represent
itself and incur all costs and expenses of suit.
The obligations of this Section 5(a) shall survive termination of this
Agreement.
b. In addition to and independent from the above, during the term of this
Agreement Licensee shall at Licensee’s expense maintain those insurances as
may be required by City as set forth below through an insurance company or
companies duly licensed and authorized to conduct business in Montana
which insures the liabilities and obligations specifically assumed by the
Licensee in Section 5(a). The insurance coverage shall not contain any
exclusion for liabilities specifically assumed by the Licensee in Section 5(a).
Within ten (10) days following execution of this Agreement, Licensee shall provide City with proof of such insurance in the form of a certificate of
insurance, the insuring agreement and all applicable endorsements
demonstrating that such insurance is in full force and effect and shall provide
such proof when requested by the City thereafter during the term of this Agreement. The City may require additional evidence of the nature and scope of the insurance required herein.
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Licensee shall ensure such required insurance coverage is timely renewed so
that there is no lapse in coverage during the time such insurance must remain
in place. Licensee shall notify the City within two (2) business days of
Licensee’s receipt of notice that any required insurance coverage will be terminated or Licensee’s decision to terminate any required insurance
coverage for any reason.
The insurance and required endorsements must be in a form suitable to the
City.
c. Licensee shall obtain the following type of insurance in the amount indicated:
• Workers’ Compensation: not less than statutory limits; and
• Employers’ Liability: $1,000,000 each occurrence; $2,000,000 annual
aggregate;
• Commercial General Liability: $1,000,000 per occurrence; $2,000,000
annual aggregate;
• Automobile Liability: $1,000,000 property damage/bodily injury;
$2,000,000 annual aggregate;
• Additional coverage as may be reasonably required by the City from time
to time.
For liabilities assumed hereunder, the City, its officers, agents, and employees, shall be
endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General Liability and Automobile Liability policies.
6. Construction/Restrictions/Repair and Maintenance.
a. Licensee shall, at its sole cost and expense, install and maintain in good
condition a barrier fence or other suitable and customary barrier around the
perimeter of any portion of the Property currently under construction by
Licensee. The barrier shall be installed pursuant to a plan, approved in
advance by the City’s Director of Parks and Recreation, or its designee. Any
such barrier shall be provided for in a manner to ensure emergency
responders’ access.
b. For the use of any public rights-of-way or any real property of the City other
than the Property the Licensee shall obtain an encroachment permit from the
City’s Director of Public Works or other applicable approvals.
c. Licensee shall keep the adjacent private and public properties including
streets, alleys, and sidewalks free from construction debris, snow, ice, and
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License Agreement for the Story Mill Community Park
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other materials stored or located on the Property. Sediment, rock, mud, ice,
snow, and other debris entering upon public or private property outside the
Property from the Licensee’s project shall be cleaned or removed
immediately.
d. Licensee agrees to immediately repair any damage caused by Licensee, its
agents, invitees, guests, contractors or subcontractors to any public or private
property outside the Property including but not limited to streets, curbs,
sidewalks, and other infrastructure to, for public infrastructure, the current
City standard for that infrastructure and, for privately owned infrastructure, to
a condition acceptable to the owner of such private infrastructure. Licensee
agrees to timely comply with any request of the City to perform maintenance
and repairs to streets, curbs, sidewalks and other infrastructure damaged by
Licensee or Licensee’s agents, invitees, guests, contractors, or subcontractors.
e. Any damage to the Site shall be repaired to a condition acceptable to the City.
Maintenance or repair work to the Property shall be performed to the City’s
reasonable satisfaction.
7. Waste, Nuisance, and Unlawful Use Prohibited. Licensee shall not commit, or
suffer to be committed, any waste on the Property, nor shall Licensee maintain, commit, or
permit the maintenance of any nuisance on the Property or use the Property for any unlawful
purpose. Licensee shall not do or permit anything to be done in or about the Property which
shall in any way conflict with any law, ordinance, rule, or regulation affecting the occupancy and
use of the Property, which are or may hereafter be enacted or promulgated by any public
authority.
8. Hazardous Materials. Licensee agrees and represents that it shall not store or
dispose of on the Site any “Hazardous Materials” as defined by Federal, State or local law as
from time to time amended.
9. Signage. Licensee, nor any of its agents may not install any signage except as
authorized pursuant to the MOU or as may otherwise be approved by the City’s Representative.
10. Termination.
a. If Licensee fails to comply with any condition of this Agreement at the time or
in the manner provided for, the City may, at its option, terminate this
Agreement and be released from all obligations if the Licensee’s default is not
cured within sixty (60) calendar days after written notice of the default is
provided by the City to the Licensee. Said notice shall set forth the items to
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License Agreement for the Story Mill Community Park
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be cured. Notices shall be provided in writing and hand-delivered or mailed
to the parties at the addresses set forth in the first paragraph of this
Agreement. Failure to cure any default may result in an order by the City’s
Representative for the Licensee to cease all operations and remove all
personal property from the Property immediately.
b. Licensee may terminate this Agreement upon thirty (30) days prior written
notice to City. Upon termination, Licensee shall remove its equipment and
improvements, and will restore the site to substantially the condition existing
as of the commencement date of this Agreement, normal wear and tear
excepted. Such termination does not abrogate Licensee’s responsibility under
the MOU.
11. Due Diligence. Licensee shall at all times exercise due diligence in the protection
of the City’s property at the Property against damages.
12. Non-discrimination. Licensee agrees that all hiring by Licensee of persons
performing this Agreement shall be on the basis of merit and qualifications. The Licensee shall
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. The Licensee shall require these nondiscrimination terms of its agents and sub-
contractors providing services under this Agreement.
13. Amendment. This Agreement represents the entire understanding between the
Parties regarding the subject matter and supersedes any prior agreement, verbal or written. Any
amendment or modification of this Agreement or any provision herein shall be made in writing
or executed in the same manner as the original document and shall after execution become a part
of this Agreement.
14. Assignment. Licensee may not assign this Agreement in whole or in part and
may not sublet all or any portion of the Property without the prior written consent of the City.
No assignment will relieve Licensee of its responsibility for the performance of the Agreement
(including its duty to defend, indemnify and hold harmless). This license shall not run with the
land.
15. Waiver of Claims. Licensee waives all claims against City for injury to persons
or property on or about the Property or from its use of the Property. It shall be understood that
the responsibility for protection and safekeeping of equipment and materials on or near the
Property will be entirely that of the Licensee and that no claim shall be made against the City by
reason of any act of an employee, officer, or, agent of the City or any trespasser.
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License Agreement for the Story Mill Community Park
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16. Representatives.
a. City’s Representative. The City Representative for the purpose of this
Agreement shall be Carolyn Poissant, Manager of Trails, Open Space, and
Parks Development, or her successor or designee. Whenever approval or
authorization from or communication or submission to City is required by this
Agreement, such communication or submission shall be directed to the City’s
Representative and approvals or authorizations shall be issued only by such
Representative; provided, however, that in exigent circumstances when City’s
Representative is not available, Licensee may direct its communication or
submission to other City personnel or agents and may receive approvals or
authorization from such persons.
b. Licensee’s Representative. The Licensee’s Representative for the purpose of
this Agreement shall be Maddy Pope. Whenever direction to or
communication with Licensee is required by this Agreement, such direction or
communication shall be directed to Licensee’s Representative; provided,
however, that in exigent circumstances when Licensee’s Representative is not
available, the City may direct its direction or communication to other
designated employees or agents of Licensee.
17. Permits. Unless otherwise agreed to in writing by the parties, Licensee shall
provide all notices, comply with all applicable federal, state, and local laws, ordinances, rules,
and regulations, obtain all necessary permits, licenses, and inspections from applicable
governmental authorities, and pay all fees and charges in connection therewith.
18. Intoxicants; DOT Drug and Alcohol Regulations. Licensee shall not permit or
suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, upon the
Property. Licensee acknowledges it is aware of and shall comply with its responsibilities and
obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug
and alcohol misuse prevention plans and related testing. The City shall have the right to request
proof of such compliance and Licensee shall be obligated to furnish such proof. The City may
order removal from the Property of any employee or agent of Licensee or any of its
subcontractors for use of intoxicants on the Property.
19. Liens and Encumbrances. Licensee shall not permit any liens or encumbrances
to be filed on the Property related to either the Licensee’s use of the Property or the Licensee’s
actions pursuant to the MOU. Prior to the expiration of this Agreement or termination by the
City or Licensee as provided herein Licensee shall furnish the City with satisfactory proof that
there are no outstanding liens or encumbrances in connection with the Licensee’s use of the
Property.
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License Agreement for the Story Mill Community Park
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20. Dispute Resolution. Any claim, controversy, or dispute between the Parties, their
agents, employees, or representatives shall be resolved first by negotiation between senior-level
personnel from each party duly authorized to execute settlement agreements. Upon mutual
agreement of the Parties, the Parties may invite an independent, disinterested mediator to assist
in the negotiated settlement discussions. If the parties are unable to resolve the dispute within
thirty (30) days from the date the dispute was first raised, then such dispute shall be resolved in a
court of competent jurisdiction in compliance with the Applicable Law provisions of this
Agreement.
21. Survival. Licensee’s indemnification obligations shall survive the termination or
expiration of this Agreement for the maximum period allowed under applicable law.
22. Headings. The headings used in this Agreement are for convenience only and are
not be construed as a part of the Agreement or as a limitation on the scope of the particular
paragraphs to which they refer.
23. Waiver. A waiver by City of any default or breach by Licensee of any covenants,
terms, or conditions of this Agreement does not limit City’s right to enforce such covenants,
terms, or conditions or to pursue City’s rights in the event of any subsequent default or breach.
24. Severability. If any portion of this Agreement is held to be void or
unenforceable, the balance thereof shall continue in effect.
25. Applicable Law. The Parties agree that this Agreement is governed in all
respects by the laws of the State of Montana. Jurisdiction for any dispute or claim raised under
this Agreement or proceeding brought to interpret the Agreement shall lie solely in the State of
Montana, Gallatin County.
26. Binding Effect: This Agreement is binding upon and inures to the benefit of the
heirs, legal representatives, successors, and assigns of the parties.
27. No Third-Party Beneficiary: 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 except the City.
28. Counterparts. This Agreement may be executed in counterparts, which together
constitute one instrument.
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License Agreement for the Story Mill Community Park
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29. Authority. Each party represents that it has full power and authority to enter into
and perform this Agreement and the person signing this Agreement on behalf of each party has
been properly authorized and empowered to sign this Agreement.
30. Independent Contractor. The Parties agree and acknowledge that in the
performance of this Agreement Licensee shall not be considered an agent, representative,
subcontractor, or employee of the City. The Parties further agree that all individuals and
companies retained by Licensee at all times will be considered the agents, employees, or
independent contractors of Licensee and at no time will they be the employees, agents, or
representatives of the City.
31. Integration. This Agreement constitutes the entire agreement of the Parties.
Covenants or representations not contained therein or made a part thereof by reference, are not
binding upon the parties. There are no understandings between the parties other than as set forth
in this Agreement. All communications, either verbal or written, made prior to the date of this
Agreement are hereby abrogated and withdrawn unless specifically made a part of this
Agreement by reference.
32. Recordation. This Agreement shall be recorded in the files of the Gallatin
County Clerk and Recorder. All costs of recording shall be borne by the Licensee. A copy of this
recorded agreement shall be provided to the City’s Representative.
########### End of Agreement except for signatures ###########
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License Agreement for the Story Mill Community Park
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Executed this _____ day of __________________, 2014.
City:
By: _____________________
Bozeman City Manager
STATE OF MONTANA )
: ss.
County of Gallatin )
This instrument was acknowledged before me on the _____ day of ________________, 20___
by Chris A. Kukulski, as City Manager for the City of Bozeman, Montana.
__________________________________________
Notary Public for the State of Montana
Printed Name: _____________________________
(SEAL) Residing in________________________________
My Commission Expires:_____________________
The Trust for Public Land, a California nonprofit public benefit corporation:
By: _______________________
Maddy Pope
STATE OF MONTANA )
: ss.
County of Gallatin )
This instrument was acknowledged before me on the _____ day of ________________, 20___
by Maddy Pope, as Project Manager of The Trust for Public Land.
__________________________________________
Notary Public for the State of Montana
Printed Name: _____________________________
(SEAL) Residing in________________________________
My Commission Expires:_____________________
436
Story Mill Community Park: Real Estate Purchase and Sale Agreement
EXHIBIT A
(Legal Description of Property)
Legal Description
10. Parcel 1 of COS 2865, Document #2496371 (Tract C1-A of COS 1877B);
11. Parcel 2 of COS 2865 (Tract A of COS 2505 and COS 2547); 12. Parcel 3 of COS 2865 (Tract 1 of COS 2503 and COS 2547);
13. Parcel 4 of COS 2865 (Bridger View Mobile Home Court #2, Film 15, Page 681 and COS 2547); 14. Parcel 5 of COS 2865 (Tract 2B of COS 2207B and COS 2547);
15. Parcel 6 of COS 2865 (Tract described on Deed Document #2476991 and depicted on COS 1471 and COS 2547);
16. Parcel 7 of COS 2865 (Tract 5A of COS 1147B); 17. Parcel 8 of COS 2865 (Tract 17 of COS 2479A and COS 2547); and
18. Parcel 9 of COS 2865 (Tract A of Subdivision Plat J-42 and COS J-42-B)
All located within Sections 31 & 32, T1S, R6E, and Sections 5 & 6 T2S, R6E, P.M.M., City of Bozeman, Gallatin County, Montana.
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License Agreement for the Story Mill Community Park Page 1 of 10
AFTER RECORDING PLEASE RETURN TO:
Stacy Ulmen
City Clerk, City of Bozeman
PO Box 1230
Bozeman, MT 59771-1230
LICENSE AGREEMENT FOR THE USE OF CITY PROPERTY
BY THE TRUST FOR PUBLIC LAND
This License Agreement (the “Agreement”) is an agreement between the City of Bozeman, a self
governing municipality operating pursuant to its Charter and the laws of the State of Montana,
with a mailing address of P.O. Box 1230, Bozeman, MT 59771 (the “City”) and The Trust for
Public Land, a nonprofit California public benefit corporation, with a mailing address of 111
South Grand Avenue, Suite 203, Bozeman, MT 59715 (hereinafter the “Licensee”, and together
with the City the “Parties”).
In consideration of Licensee’s promises herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as
follows:
1. Purpose. The City will be, upon purchasing the real property described in Exhibit
A (the “Property”) pursuant to the terms of the Real Estate Purchase and Sale Agreement
authorized by Commission Resolution No. 4572, owner of said Property and desires to authorize
Licensee to access the Property for purposes of completing certain improvements to the Property
pursuant to the Memorandum of Understanding (“MOU”) between the Parties authorized by
Commission Resolution No. 4572. The Parties agree this Agreement shall be executed prior to
the transfer of the Property from Licensee to the City but shall not be effective until such transfer
of the Property occurs.
2. Description of Property. The Property consists of the real property as described
in Exhibit A.
3. Title. Licensee hereby acknowledges this license grants a privilege and not an
interest in the Property and the title of the City to the Property, and Licensee agrees never to
deny such title or claim, at any time, or claim any interest or estate of any kind or extent
whatsoever in the Property by virtue of this Agreement or Licensee’s occupancy or use
hereunder. The City may enter the site at any time to assert its real property interest or for other
purposes which do not unreasonably interfere with the activities of the Licensee authorized by
the MOU.
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License Agreement for the Story Mill Community Park Page 2 of 10
Upon termination of this Agreement, title to all permanent improvements on the Property and on
public rights-of-way adjacent to the Property made by Licensee or its agents shall vest in the
City, free and clear of all debts, liens and encumbrances. All other improvements of a
nonpermanent nature and all trade fixtures, machinery and furnishings made or installed by
Licensee may be removed from the Property at any time unless such improvements are a
component of the Park Project, as described in the MOU, or as otherwise agreed to by the City
and such removal will not damage the realty and/or permanent improvements.
4. License. The City hereby grants permission, revocable and terminable as
provided herein, during the period commencing January 1, 2015 until December 31, 2017 on
the terms and conditions set forth herein, which Licensee promises to comply with and abide by
to Licensee for Licensee’s fulfillment of its obligations as stated in the MOU, which
Licensee promises to comply with and abide by. Such permission shall include the
permission of Licensee to use the Property to fulfill its obligations under the MOU and for no
other purpose. The term of this License may be extended by mutual agreement of the Parties in
writing.
Licensee agrees to comply with all City ordinances and other rules and regulations regarding
permits and approvals related to operations on the Property as well as those of any other
governmental entity having jurisdiction.
5. Indemnification/Insurance.
a. To the fullest extent permitted by law, Licensee, recognizing it exercises its
privileges under this Agreement at its own risk, shall release, and shall
protect, defend, indemnify, and hold harmless the City and its agents,
representatives, employees, and officers from and against any and all claims,
demands, actions, fees and costs (including attorney’s fees and the costs and
fees of expert witness and consultants), losses, expenses, liabilities (including
liability where activity is inherently or intrinsically dangerous) or damages of
whatever kind or nature connected therewith and without limit and without
regard to the cause or causes thereof or the negligence of any party or parties
that may be asserted against, recovered from or suffered by the City,
occasioned by, growing or arising out of or resulting from or in any way
related to: (i) the occupation or use of the Property by Licensee; (ii) the
negligent, reckless, or intentional misconduct of the Licensee, its officers,
employees, or agents on or related to the Property; and (iii) any negligent,
reckless, or intentional misconduct of any of the Licensee’s guests, invitees,
contractors, or subcontractors on or related to the Property.
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License Agreement for the Story Mill Community Park Page 3 of 10
Such obligation shall not be construed to negate, abridge, or reduce other
rights or obligations of indemnity that would otherwise exist as to an
indemnitee described in this Section. The indemnification obligations of this
Section must not be construed to negate, abridge, or reduce any common-law
or statutory rights of the indemnitee(s) which would otherwise exist as to such
indemnitee(s).
Licensee’s indemnity under this Section shall be without regard to and
without any right to contribution from any insurance maintained by City.
Should any indemnitee described herein be required to bring an action against
the Licensee to assert its right to defense or indemnification under this
Agreement or under the Licensee’s applicable insurance policies required
below the indemnitee shall be entitled to recover reasonable costs and attorney
fees incurred in asserting its right to indemnification or defense but only if a
court of competent jurisdiction determines the Licensee was obligated to
defend the claim(s) or was obligated to indemnify the indemnitee for a
claim(s) or any portion(s) thereof.
In the event of an action filed against the City, the City may elect to represent
itself and incur all costs and expenses of suit.
The obligations of this Section 5(a) shall survive termination of this
Agreement.
b. In addition to and independent from the above, during the term of this
Agreement Licensee shall at Licensee’s expense maintain those insurances as
may be required by City as set forth below through an insurance company or
companies duly licensed and authorized to conduct business in Montana
which insures the liabilities and obligations specifically assumed by the
Licensee in Section 5(a). The insurance coverage shall not contain any
exclusion for liabilities specifically assumed by the Licensee in Section 5(a).
Within ten (10) days following execution of this Agreement, Licensee shall
provide City with proof of such insurance in the form of a certificate of
insurance, the insuring agreement and all applicable endorsements
demonstrating that such insurance is in full force and effect and shall provide
such proof when requested by the City thereafter during the term of this
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License Agreement for the Story Mill Community Park Page 4 of 10
Agreement. The City may require additional evidence of the nature and scope
of the insurance required herein.
Licensee shall ensure such required insurance coverage is timely renewed so
that there is no lapse in coverage during the time such insurance must remain
in place. Licensee shall notify the City within two (2) business days of
Licensee’s receipt of notice that any required insurance coverage will be
terminated or Licensee’s decision to terminate any required insurance
coverage for any reason.
The insurance and required endorsements must be in a form suitable to the
City.
c. Licensee shall obtain the following type of insurance in the amount indicated:
• Workers’ Compensation: not less than statutory limits; and
• Employers’ Liability: $1,000,000 each occurrence; $2,000,000 annual
aggregate;
• Commercial General Liability: $1,000,000 per occurrence; $2,000,000
annual aggregate;
• Automobile Liability: $1,000,000 property damage/bodily injury;
$2,000,000 annual aggregate;
• Additional coverage as may be reasonably required by the City from time
to time.
For liabilities assumed hereunder, the City, its officers, agents, and employees, shall be
endorsed as an additional or named insured on a primary non-contributory basis on the
Commercial General Liability and Automobile Liability policies.
6. Construction/Restrictions/Repair and Maintenance.
a. Licensee shall, at its sole cost and expense, install and maintain in good
condition a barrier fence or other suitable and customary barrier around the
perimeter of any portion of the Property currently under construction by
Licensee. The barrier shall be installed pursuant to a plan, approved in
advance by the City’s Director of Parks and Recreation, or its designee. Any
such barrier shall be provided for in a manner to ensure emergency
responders’ access.
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License Agreement for the Story Mill Community Park Page 5 of 10
b. For the use of any public rights-of-way or any real property of the City other
than the Property the Licensee shall obtain an encroachment permit from the
City’s Director of Public Works or other applicable approvals.
c. Licensee shall keep the adjacent private and public properties including
streets, alleys, and sidewalks free from construction debris, snow, ice, and
other materials stored or located on the Property. Sediment, rock, mud, ice,
snow, and other debris entering upon public or private property outside the
Property from the Licensee’s project shall be cleaned or removed
immediately.
d. Licensee agrees to immediately repair any damage caused by Licensee, its
agents, invitees, guests, contractors or subcontractors to any public or private
property outside the Property including but not limited to streets, curbs,
sidewalks, and other infrastructure to, for public infrastructure, the current
City standard for that infrastructure and, for privately owned infrastructure, to
a condition acceptable to the owner of such private infrastructure. Licensee
agrees to timely comply with any request of the City to perform maintenance
and repairs to streets, curbs, sidewalks and other infrastructure damaged by
Licensee or Licensee’s agents, invitees, guests, contractors, or subcontractors.
e. Any damage to the Site shall be repaired to a condition acceptable to the City.
Maintenance or repair work to the Property shall be performed to the City’s
reasonable satisfaction.
7. Waste, Nuisance, and Unlawful Use Prohibited. Licensee shall not commit, or
suffer to be committed, any waste on the Property, nor shall Licensee maintain, commit, or
permit the maintenance of any nuisance on the Property or use the Property for any unlawful
purpose. Licensee shall not do or permit anything to be done in or about the Property which
shall in any way conflict with any law, ordinance, rule, or regulation affecting the occupancy and
use of the Property, which are or may hereafter be enacted or promulgated by any public
authority.
8. Hazardous Materials. Licensee agrees and represents that it shall not store or
dispose of on the Site any “Hazardous Materials” as defined by Federal, State or local law as
from time to time amended.
9. Signage. Licensee, nor any of its agents may not install any signage except as
authorized pursuant to the MOU or as may otherwise be approved by the City’s Representative.
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License Agreement for the Story Mill Community Park Page 6 of 10
10. Termination.
a. If Licensee fails to comply with any condition of this Agreement at the time or
in the manner provided for, the City may, at its option, terminate this
Agreement and be released from all obligations if the Licensee’s default is not
cured within sixty (60) calendar days after written notice of the default is
provided by the City to the Licensee. Said notice shall set forth the items to
be cured. Notices shall be provided in writing and hand-delivered or mailed
to the parties at the addresses set forth in the first paragraph of this
Agreement. Failure to cure any default may result in an order by the City’s
Representative for the Licensee to cease all operations and remove all
personal property from the Property immediately.
b. Licensee may terminate this Agreement upon thirty (30) days prior written
notice to City. Upon termination, Licensee shall remove its equipment and
improvements, and will restore the site to substantially the condition existing
as of the commencement date of this Agreement, normal wear and tear
excepted. Such termination does not abrogate Licensee’s responsibility under
the MOU.
11. Due Diligence. Licensee shall at all times exercise due diligence in the protection
of the City’s property at the Property against damages.
12. Non-discrimination. Licensee agrees that all hiring by Licensee of persons
performing this Agreement shall be on the basis of merit and qualifications. The Licensee shall
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. The Licensee shall require these nondiscrimination terms of its agents and sub-
contractors providing services under this Agreement.
13. Amendment. This Agreement represents the entire understanding between the
Parties regarding the subject matter and supersedes any prior agreement, verbal or written. Any
amendment or modification of this Agreement or any provision herein shall be made in writing
or executed in the same manner as the original document and shall after execution become a part
of this Agreement.
14. Assignment. Licensee may not assign this Agreement in whole or in part and
may not sublet all or any portion of the Property without the prior written consent of the City.
No assignment will relieve Licensee of its responsibility for the performance of the Agreement
(including its duty to defend, indemnify and hold harmless). This license shall not run with the
land.
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License Agreement for the Story Mill Community Park Page 7 of 10
15. Waiver of Claims. Licensee waives all claims against City for injury to persons
or property on or about the Property or from its use of the Property. It shall be understood that
the responsibility for protection and safekeeping of equipment and materials on or near the
Property will be entirely that of the Licensee and that no claim shall be made against the City by
reason of any act of an employee, officer, or, agent of the City or any trespasser.
16. Representatives.
a. City’s Representative. The City Representative for the purpose of this
Agreement shall be Carolyn Poissant, Manager of Trails, Open Space, and
Parks Development, or her successor or designee. Whenever approval or
authorization from or communication or submission to City is required by this
Agreement, such communication or submission shall be directed to the City’s
Representative and approvals or authorizations shall be issued only by such
Representative; provided, however, that in exigent circumstances when City’s
Representative is not available, Licensee may direct its communication or
submission to other City personnel or agents and may receive approvals or
authorization from such persons.
b. Licensee’s Representative. The Licensee’s Representative for the purpose of
this Agreement shall be Maddy Pope. Whenever direction to or
communication with Licensee is required by this Agreement, such direction or
communication shall be directed to Licensee’s Representative; provided,
however, that in exigent circumstances when Licensee’s Representative is not
available, the City may direct its direction or communication to other
designated employees or agents of Licensee.
17. Permits. Unless otherwise agreed to in writing by the parties, Licensee shall
provide all notices, comply with all applicable federal, state, and local laws, ordinances, rules,
and regulations, obtain all necessary permits, licenses, and inspections from applicable
governmental authorities, and pay all fees and charges in connection therewith.
18. Intoxicants; DOT Drug and Alcohol Regulations. Licensee shall not permit or
suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, upon the
Property. Licensee acknowledges it is aware of and shall comply with its responsibilities and
obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug
and alcohol misuse prevention plans and related testing. The City shall have the right to request
proof of such compliance and Licensee shall be obligated to furnish such proof. The City may
order removal from the Property of any employee or agent of Licensee or any of its
subcontractors for use of intoxicants on the Property.
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License Agreement for the Story Mill Community Park Page 8 of 10
19. Liens and Encumbrances. Licensee shall not permit any liens or encumbrances
to be filed on the Property related to either the Licensee’s use of the Property or the Licensee’s
actions pursuant to the MOU. Prior to the expiration of this Agreement or termination by the
City or Licensee as provided herein Licensee shall furnish the City with satisfactory proof that
there are no outstanding liens or encumbrances in connection with the Licensee’s use of the
Property.
20. Dispute Resolution. Any claim, controversy, or dispute between the Parties, their
agents, employees, or representatives shall be resolved first by negotiation between senior-level
personnel from each party duly authorized to execute settlement agreements. Upon mutual
agreement of the Parties, the Parties may invite an independent, disinterested mediator to assist
in the negotiated settlement discussions. If the parties are unable to resolve the dispute within
thirty (30) days from the date the dispute was first raised, then such dispute shall be resolved in a
court of competent jurisdiction in compliance with the Applicable Law provisions of this
Agreement.
21. Survival. Licensee’s indemnification obligations shall survive the termination or
expiration of this Agreement for the maximum period allowed under applicable law.
22. Headings. The headings used in this Agreement are for convenience only and are
not be construed as a part of the Agreement or as a limitation on the scope of the particular
paragraphs to which they refer.
23. Waiver. A waiver by City of any default or breach by Licensee of any covenants,
terms, or conditions of this Agreement does not limit City’s right to enforce such covenants,
terms, or conditions or to pursue City’s rights in the event of any subsequent default or breach.
24. Severability. If any portion of this Agreement is held to be void or
unenforceable, the balance thereof shall continue in effect.
25. Applicable Law. The Parties agree that this Agreement is governed in all
respects by the laws of the State of Montana. Jurisdiction for any dispute or claim raised under
this Agreement or proceeding brought to interpret the Agreement shall lie solely in the State of
Montana, Gallatin County.
26. Binding Effect: This Agreement is binding upon and inures to the benefit of the
heirs, legal representatives, successors, and assigns of the parties.
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License Agreement for the Story Mill Community Park Page 9 of 10
27. No Third-Party Beneficiary: 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 except the City.
28. Counterparts. This Agreement may be executed in counterparts, which together
constitute one instrument.
29. Authority. Each party represents that it has full power and authority to enter into
and perform this Agreement and the person signing this Agreement on behalf of each party has
been properly authorized and empowered to sign this Agreement.
30. Independent Contractor. The Parties agree and acknowledge that in the
performance of this Agreement Licensee shall not be considered an agent, representative,
subcontractor, or employee of the City. The Parties further agree that all individuals and
companies retained by Licensee at all times will be considered the agents, employees, or
independent contractors of Licensee and at no time will they be the employees, agents, or
representatives of the City.
31. Integration. This Agreement constitutes the entire agreement of the Parties.
Covenants or representations not contained therein or made a part thereof by reference, are not
binding upon the parties. There are no understandings between the parties other than as set forth
in this Agreement. All communications, either verbal or written, made prior to the date of this
Agreement are hereby abrogated and withdrawn unless specifically made a part of this
Agreement by reference.
32. Recordation. This Agreement shall be recorded in the files of the Gallatin
County Clerk and Recorder. All costs of recording shall be borne by the Licensee. A copy of this
recorded agreement shall be provided to the City’s Representative.
########### End of Agreement except for signatures ###########
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License Agreement for the Story Mill Community Park Page 10 of 10
Executed this _____ day of __________________, 2014.
City:
By: _____________________
Bozeman City Manager
STATE OF MONTANA )
: ss.
County of Gallatin )
This instrument was acknowledged before me on the _____ day of ________________, 20___
by Chris A. Kukulski, as City Manager for the City of Bozeman, Montana.
__________________________________________
Notary Public for the State of Montana
Printed Name: _____________________________
(SEAL) Residing in________________________________
My Commission Expires:_____________________
The Trust for Public Land, a California nonprofit public benefit corporation:
By: _______________________
Maddy Pope
STATE OF MONTANA )
: ss.
County of Gallatin )
This instrument was acknowledged before me on the _____ day of ________________, 20___
by Maddy Pope, as Project Manager of The Trust for Public Land.
__________________________________________
Notary Public for the State of Montana
Printed Name: _____________________________
(SEAL) Residing in________________________________
My Commission Expires:_____________________
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Exhibit A - License Agreement for the Story Mill Community Park
EXHIBIT A
(Legal Description of Property)
Legal Description
1. Parcel 1 of COS 2865, Document #2496371 (Tract C1-A of COS 1877B);
2. Parcel 2 of COS 2865 (Tract A of COS 2505 and COS 2547);
3. Parcel 3 of COS 2865 (Tract 1 of COS 2503 and COS 2547); 4. Parcel 4 of COS 2865 (Bridger View Mobile Home Court #2, Film 15, Page 681 and COS 2547);
5. Parcel 5 of COS 2865 (Tract 2B of COS 2207B and COS 2547);
6. Parcel 6 of COS 2865 (Tract described on Deed Document #2476991 and depicted on COS 1471 and COS 2547);
7. Parcel 7 of COS 2865 (Tract 5A of COS 1147B); 8. Parcel 8 of COS 2865 (Tract 17 of COS 2479A and COS 2547); and 9. Parcel 9 of COS 2865 (Tract A of Subdivision Plat J-42 and COS J-42-B)
All located within Sections 31 & 32, T1S, R6E, and Sections 5 & 6 T2S, R6E, P.M.M., City of Bozeman, Gallatin County, Montana.
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