HomeMy WebLinkAbout14- Story Mill Community Park Real Estate Purchase and Sale Agreement between City and the Trust for Public Lands Attachment B. Res. 4572
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 '2-5-day of 7,7-c 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 5 977 1.
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
4, 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 Authori1y. 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 Parry 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
C,j��- k '-)� `_
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: i4 By _� W!140 J_�L-1"A
Time: g'•23/�M QN(51ot t LJF 1L 9lR-eCT60-
Address: 111 South Grand Avenue, Suite 203,
Bozeman, Montana, 59715
Phone: 406-522-7450
Federal Tax ID #: 23-7222333
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EXHIBIT A
(Legal Description)
Parcels 1,2,3,4,5, 6, 7, 8 and 9, of Certificate of Survey No. 2865,located within
Sections 31 and 32,Township 1 South,Range 6 East, and Sections 5 and 6,Township 2
South,Range 6 East,P.M.M., according to the official survey thereof on file and of
record in the office of the County Clerk and Recorder, Gallatin County,Montana.
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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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EXHIBIT C
(License Agreement)
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EXV1131T
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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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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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
License Agreement for the Story Mill Community Park
Page 3 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.
License Agreement for the Story Mill Community Park
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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.
License Agreement for the Story Mill Community Park
Page 5 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.
License Agreement for the Story Mill Community Park
Page 6 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.
License Agreement for the Story Mill Community Park
Page 7 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.
License Agreement for the Story Mill Community Park
Page 8 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###########
License Agreement for the Story Mill Community Park
Page 9of10
Executed this day of ,2014.
City:
By:
Bozeman City Manager
STATE OF MONTANA
County of Gallatin ood
�o
This instrument war ����� ged before me on the day of , 20_
by Chris A. Kuk- +r�x, f 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 ) o�
�a
This instrument was acknowledged before me g`o' _ day of , 20_
by Maddy Pope, as Project Manager of The ' ado` ablic Land.
o�
_ublic for the State of Montana
Zd Name:
(SEAL) +r Zsiding in
My Commission Expires:
License Agreement for the Story MiII Community Park
Page 10 of 10
EXHIBIT A
(Description of Property)
Exhibit A-License Agreement for the Story Mill Community Park