Agreement to Purchase the Idaho Timber Lease THIS AGREEMENT (the “Agreement”), dated as of the __ day of July, 2006, is among MILLSITE REVITALIZATION PROJECT, LLC (“MRP”), a Montana limited liability company having its principal office at 2800 South Reserve Street, Missoula, Montana, the MISSOULA REDEVELOPMENT AGENCY (“MRA”), an agency of the City of Missoula, Montana having an address of 123 West Spruce Street, Missoula, MT 59802, and the CITY OF MISSOULA (the “City”), a municipal corporation and political subdivision of the State of Montana, having an address of 435 Ryman, Missoula, MT 59802 (collectively, the “Parties”). RECITALS A. MRA is an agency of the City.
B. The City Council (the “Council”) of the City has duly created its Urban Renewal District II (the “District”) and adopted an urban renewal plan for the District (as amended, the “Urban Renewal District II Plan” or the “Plan”). The Plan, as adopted, contains a tax increment financing provision in accordance with the Act. C. The Council has determined that the real property described on Exhibit A attached hereto (the “Property”) (commonly known as the Champion Millsite Property) is and was blighted within the meaning of the Act. D. Pursuant to action by the City, the Property has been annexed into the City and has been included in the District. E. MRP has presented to the MRA and the City its Millsite Revitalization Project, which consists of the acquisition of the Property, including the acquisition of the Leasehold (as hereinafter defined) of Idaho Timber in the Property, the installation and construction of common areas and public infrastructure totaling approximately 5.3 acres, site development, and making available for sale and development approximately 26 acres of land for mixed-use development, consisting of multifamily and single family residential units, office and retail space, and approximately 14 acres of parkland and trail systems, the site plan of which was filed with the City on June 9, 2006. F. MRP has obtained from the owners of the fee interest in the Property (the “Fee”) the right to purchase the Fee pursuant to a Buy-Sell Agreement dated January 13, 2005 (the “Fee Purchase Agreement”) which, unless extended, will expire on December 31, 2007. MRP has obtained from the owner of the leasehold estate in the Property (the “Leasehold”) an option to purchase the Leasehold pursuant to an Agreement for Purchase and Sale of Leasehold Interest in Real Estate dated March 15, 2004 (the “Leasehold Purchase Agreement”) which will expire on September 1, 2006.
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G. MRP, MRA and the City have determined that it is in the best interest of the Project and the City that the Leasehold be acquired prior to the termination date of the Leasehold Purchase Agreement. IN CONSIDERATION of the above Recitals, the agreements and covenants set forth herein, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: Section 1. Definitions. "Affiliate" means with respect to any person, any immediate family member of such person or any entity in which such person owns at least ten percent of the beneficial interest, and, with respect to any entity, any officer, director, manager, or general partner of such entity, or any person or entity owning at least ten percent of the beneficial interest of such entity, or any subsidiary in which such entity owns at least ten percent of the beneficial interest. “Base Lease” means the Modern Plumbing lease of the Property dated January 1, 1959, as amended. “Base Lease Option” means the option held by the lessee to purchase the Fee at the end of the term of the Base Lease, which is ____, 2033. “City” means the City of Missoula. “Development Agreement” means the agreement to be negotiated and entered into among MRP, MRA and the City pertaining to the Project stating how the Property is to be developed, identifying sources of payment for Project Costs, and setting forth the respective obligations of the Parties with respect to the Project. “Development Parcel” means the approximately 5.3 acres of the Property shown on the Site Plan to be used for common areas and public infrastructure, and 26 acres of the Property shown on the Site Plan to be used for mixed-use development, consisting of multifamily and single family residential units, office and retail space. The Development Parcel does not include the Park Parcel. “Fee” means the fee interest in the Millsite Property (currently vested currently in Silver Foundation). “Fee Purchase Agreement” means MRP’s agreement dated January 13, 2005 for purchase and sale of the fee interest in the Property from the Silver Foundation. “Fee Purchase Agreement Expiration Date” means December 31, 2007 (or as such date exists or may be extended).
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“Idaho Timber” means Idaho Timber Corporation of Missoula, Inc., holder of lessee’s interest in the lease of the Property dated January 1, 1959 between The Modern Plumbing & Building Supplies, as lessor, and Intermountain Lumber Company, as lessee (the Base Lease). “Leasehold” means the leasehold interest of the lessee in the Property pursuant to the Base Lease. “Leasehold Purchase Agreement” means MRP’s option to purchase the Leasehold of Idaho Timber pursuant to an Agreement for Purchase and Sale of Leasehold Interest in Real Estate dated March 15, 2004, which will expire on September 1, 2006. “MRA” means Missoula Redevelopment Agency. “MRP” means Millsite Revitalization Project, LLC. “Park Parcel” means approximately 14 acres of the Property shown as “Public Park” on the Site Plan to be used for public park, open land and riverfront trail systems. "Pollutant" means any substance that is now or may become regulated or governed by any Environmental Laws, or the presence of which requires investigation under any Environmental Laws, or any flammable, explosive, corrosive, reactive, carcinogenic, radioactive material, hazardous waste, toxic substance or related material and any other substance or material defined or designated as a hazardous or toxic substance, material or waste by any Environmental Laws and shall include, without limitation: (a) any substance included within the definitions of "hazardous substance" as that term is defined in CERCLA; any "hazardous waste" as that term is defined in RCRA; and any "hazardous material" as that term is defined in the Hazardous Materials Transportation Act (49 U.S.C. §§ 1801 et seq.), as amended (including as those terms are further defined, construed, or otherwise used in rules, regulations or standards issued pursuant to the Environmental Laws); (b) any substance listed in the United States Department of Transportation Table (49 C.F.R. 172.101 and amendments thereto) or by the Environmental Protection Agency (or any successor agency) as a hazardous substance (40 C.F.R. Part 302 and amendments thereto; and (c) any material, waste, or substance which is or contains any petroleum product or by-product, flammable or explosive material, radioactive material, asbestos, PCBs, dioxins, heavy metals, mine tailings, waste or slag, radon gas or any material designated as a "hazardous substance" pursuant to Section 311 of the CWA (33 U.S.C. § 1321) or listed pursuant to Section 307 of the CWA (33 U.S.C. § 1317).
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“Project” means the acquisition of the Property, including the acquisition of the Leasehold of Idaho Timber in the Property, the installation and construction of common areas and public infrastructure totaling approximately 5.3 acres, site development and making available for sale and development approximately 26 acres of land within the Property for mixed-use development, consisting of multifamily and single family residential units, office and retail space ( collectively, the Development Parcel) and approximately 14 acres of parkland and trail systems (the Park Parcel) according to the Site Plan. “Project Bonds” means tax increment urban renewal revenue bonds issued by the City payable from the tax increment from the Project on the Property to pay a portion of the Project Costs. “Project Costs” means costs and expenses of the Project as estimated in the Resolution of Intention, and which will be more particularly defined in the Development Agreement. “Property” means the Millsite Property described on Exhibit A attached hereto. “Resolution of Intention” means Resolution No. 7089 of the City adopted by the Council on June 12, 2006, a Resolution of Intention Related to the Millsite Revitalization Project Proposed by Millsite Revitalization Project, LLC: to Approve the Millsite Revitalization Project as an Urban Renewal Project for Urban Renewal District II; to Set Forth the Council’s Intention to Finance the Purchase of the Idaho Timber Lease Through the Issuance of Tax Increment Urban Renewal Revenue Bonds Payable from the Tax Increment of Urban Renewal District II, Exclusive of the Millsite Property (the URD II bonds) and to set forth the Conditions therefor; to Preliminarily Approve and Identify the Components of the Financing for Millsite Revitalization Project; Calling a Public Hearing on the Proposed Project and the Issuance of the URD II Bonds, and Authorizing the Negotiation and Finalization of a Development Agreement between the City, the Missoula Redevelopment Agency, and Millsite Revitalization Project to be Presented to the City Council for Public Hearing at a Later Date; and Related Matters. “RLF Loan” means the loan from the Missoula Area Economic Development Corporation on behalf of the Brownfields Revolving Loan Program of the City in the amount of $1,000,000 to finance certain costs of the environmental remediation of the Property, to be repaid by tax increment derived from the Property, pledged pursuant to Resolution No. 6978 of the City. “Silver Foundation” means the F. Morris and Helen Silver Foundation, owner of the fee interest in the Millsite Property. “Site Plan” means the master plan submitted by MRP to the City on June 9, 2006.
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“URD II Bonds” means up to $3,800,000 in tax increment urban renewal revenue bonds issued by the City of Missoula and payable from tax increment of Urban Renewal District II, exclusive of the Property, the Intermountain Property and the Safeway Property, used to purchase the Leasehold of Idaho Timber in the Base Lease on the Property and other authorized purposes. Section 2. URD II Bonds Used to Purchase Leasehold. Subject to and according to the terms of a Resolution of the City, when adopted, and this Agreement, the City will issue the URD II Bonds and use the proceeds to pay Idaho Timber for its Leasehold in the Base Lease pursuant to the Leasehold Purchase Agreement. It is understood that Idaho Timber will convey its interest in the Base Lease to MRP. Section 3. Silver Foundation Agrees Annexation of the Property is Unconditional. At or before the time of closing on the Base Lease, Silver Foundation shall have executed and delivered to the City (or to an escrow agent handling the closing on the Base Lease), the Silver Foundation’s executed, notarized and recordable agreement that the annexation of the Property is unconditional. Section 4. MRP Subleases the Park Parcel to the City; the City has the Right to Acquire the Park Parcel as Part of the Base Lease Option, Exercisable in 2033. At the closing of the purchase of the Idaho Timber interest in the Base Lease, MRP shall enter into a sublease agreement with the City by which MRP leases to the City the Park Parcel. The sublease shall be in substantially the form attached as Exhibit “B”, the Sublease and Partition Agreement (the “Sublease”). Although the parties plan for MRP to purchase the Fee from the Silver Foundation pursuant to the Fee Purchase Agreement described in Section 5 below, the Fee Purchase Agreement might expire before various issues can be solved to MRP’s satisfaction. The Base Lease and Sublease provide the Parties with possession and control of the Property through 2033. In addition, the Base Lease contains its own Option (the “Base Lease Option”) that entitles the Parties to purchase fee title to the Property upon exercise of the Base Lease Option in 2033 and payment of the purchase price set in the Base Lease Option. Fee Purchase. MRP has entered into the Fee Purchase Agreement with the Section 5. Silver Foundation. The Silver Foundation will not permit MRP to assign its interest in the Fee Purchase Agreement to the City. The Fee Purchase Agreement is separate from the Base Lease Option. The following provisions apply if the Fee is purchased pursuant to the Fee Purchase Agreement. a. Parking Rights Agreement. At or before such time as the Fee is purchased by MRP, MRP, the City and Play Ball Missoula shall enter into an agreement (the "Parking Rights Agreement") pursuant to which MRP agrees to provide certain contract rights for Civic Stadium parking (the "Parking Rights") within the areas
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that will be indicated on the Site Plan for which rights the City shall pay MRP $226,500. b. MRP Conveys Park Parcel to City; Sublease is terminated. At the closing of the Fee Purchase by MRP, except as provided in Section 6.b (3) below, the Base Lease merges with the Fee, and the Base Lease is extinguished. Similarly, the MRP sublease of the Park Parcel to the City terminates (subject to any accrued and continuing obligations of the parties). Upon payment of a total purchase price of $662,500 from the City, MRP shall convey the fee interest in the Park Parcel to the City. The Park Parcel shall remain subject to MRP’s access and reasonable requirements to further the development. MRP and the City will agree upon restrictive covenants or servitudes (the “Park Covenants”) that will be placed upon the Park Parcel upon its conveyance to the City. The Park Covenants will require the use of the Park Parcel in perpetuity for parks and trails, will set forth the permitted uses of the Park Parcel, and will limit future changes to the use of the Park Parcel. c. Fee Purchase Agreement Timeline. The Fee Purchase Agreement grants MRP until [December 1, 2007] within which to investigate the Property and determine that it meets its needs in order that MRP may purchase the Fee and proceed with the development project (“Contingency Period”). MRP is concerned that, despite its efforts and investment of time and money, there may be events or conditions beyond its control (“Special Conditions”) that prevent MRP from approving the Fee during the Contingency Period and then purchasing the Fee. Special Conditions are listed below in Section 8. In order to address this concern, MRP has acquired from Silver Foundation two one-year extensions of the Contingency Period. The City acknowledges that MRP in making its determination to complete acquisition of the Fee and in giving the MRP Notice that MRP elects to purchase the Fee as provided in Section 6.b (1) below, MRP is relying upon a) availability of certain proceeds of the Project Bonds to pay MRP Project Costs, b) evidence of at least approximately $2 million of City funds committed and available for Park Improvements, c) issuance of or irrevocable commitment of the City to issue SID bonds and make proceeds available to MRP, and d) other conditions to be negotiated and agreed by the parties in a new Development Agreement. The general outline of the arrangements between MRP, MRA and the City is set forth in the Resolution of Intention. Option to City. Upon the closing of the Base Lease purchase, MRP grants Section 6. to the City an option to acquire MRP’s interest in the Base Lease and MRP’s interests in the Property upon the following terms and conditions (the “Option”). a. Term of Option. The term of the Option commences at the closing of the Base Lease purchase and ends on the earlier of the date of closing of MRP’s purchase of the Fee from Silver Foundation or the expiration of the Fee Purchase Page 6
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Agreement as it may be extended. The City has the right to exercise the Option upon the occurrence of events described below in Section 6.b (3).
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b. Implementation of Option. The parties agree as follows: (1) MRP Notice. On or before 60 days before expiration of then applicable Contingency Period, as it may be extended (“MRP Notice Deadline”), MRP shall notify the City whether or not it intends to purchase the Fee (“MRP Notice”). If MRP gives the MRP Notice by the MRP Notice Deadline that it will purchase the Fee, MRP is irrevocably bound to purchase the Fee, subject to the provisions of Section 4, Fee Purchase. (2) Continued Cooperation. If MRP designates in the MRP Notice that it elects not to purchase the Fee, MRP, MRA and the City, with whatever cooperation the Silver Foundation will provide, shall use the time remaining in the applicable Contingency Period, as it may be extended, to use good faith efforts to develop a plan so that MRP can close on the Fee Purchase Agreement by the then applicable closing deadline, as it may be extended, and the project development may continue to bring the project to fruition. (3) City May Elect to Provide Funds to Purchase Fee. As soon as feasible after receipt of the MRP Notice indicating that MRP will not purchase the Fee, the City in its discretion may elect to provide sufficient funds to MRP and require MRP to purchase the Fee and immediately convey the Fee in the Property to the City. In this event, the parties agree that the deed from MRP to the City will provide that the Base Lease does not merge in the Fee, and the City (not MRP) is deemed to be the Lessor under the Base Lease. The parties agree that the Park Parcel will be surveyed and released from the Base Lease so that the City will own it and use it in perpetuity for parks and trails, consistent with the provisions of the Sublease as provided in Section 4 above. Absent other arrangements satisfactory to MRP, MRP will continue to lease the Development Parcel pursuant to the Base Lease. The City will continue to work with MRP to resolve then outstanding project issues and to enter into agreements that are mutually acceptable to the City and MRP to resolve such issues. (4) MRP Repurchase Right. MRP has the right to repurchase the Development Parcel (“MRP Repurchase Right”) for the City’s actual costs, including without limitation costs of financing, expended to purchase the Property, less $662,500 attributable to the Park Parcel and less $226,500 attributable to the Parking Rights Agreement. In the event that the City is required to pay for installation of temporary parking for the Civic Stadium (as opposed to the permanent parking to be provided pursuant to the Parking Rights Agreement), the costs of such temporary parking will be deducted from the $226,500 that would otherwise reduce the price MRP owes to the City for repurchase of the Development Parcel. The Parties will work together to attempt to avoid the installation of temporary parking and/or to minimize the cost of such temporary parking. If the City pays more than $226,500 for temporary parking, MRP is not responsible for payment
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of such additional charges to the City upon MRP’s repurchase of the Development Parcel. The MRP Repurchase Right exists for the longer of (i) twelve months after conveyance of the Property to the City, or (ii) so long as any Special Condition exists and is continuing after the conveyance of the Fee to the City. If no Special Condition then exists and is continuing, MRP shall give notice of exercise of its right to repurchase the Development Parcel before expiration of the twelve month repurchase period. If a Special Condition exists and is continuing at the time of expiration of the twelve month repurchase period, MRP shall have one hundred twenty (120) days after the date when no Special Condition exists and is continuing within which to exercise the MRP Repurchase Right. Closing shall occur within thirty (30) days after MRP notifies the City of its exercise of its right of repurchase. If after MRP gives notice of exercise of its right to repurchase the property a Special Condition exists and is continuing, Closing shall be extended until thirty (30) days after the date when no Special Condition exists and is continuing. During the time when the City owns the Development Parcel and MRP has the MRP Repurchase Right, absent MRP’s consent, the City shall not modify the Project, including without limitation the subdivision plats as submitted by MRP and as they may have been approved prior to the Fee Closing, and the zoning as MRP requested to implement the Project. At Closing, the City will convey the Development Parcel to MRP subject to then-existing zoning, subdivision plats as then approved, and subject to and together with all agreements in effect as approved by MRP, but the Base Lease is then extinguished (subject to any accrued and continuing obligations of the parties). (5) MRP’s Transfers. At any time before expiration of the MRP Notice Deadline, MRP may elect to transfer its interest in the Project (including the Fee Purchase Agreement and Base Lease) to an Affiliate or in connection with a financing transaction after which the principals of MRP will remain involved in the Project individually (each an "Exempt Transfer"), or to transfer its interest in the Project to a new developer (“New Developer”) who will agree to purchase and assume the interests of MRP in the Base Lease and Project, proceed with acquisition of the Fee from Silver Foundation by the then applicable closing deadline under the Fee Purchase Agreement, and attempt to bring the Project to fruition. Except for an Exempt Transfer, MRP’s transfer to a New Developer shall be subject to the consent of the City which shall not be unreasonably withheld. The only criteria for consent are set forth in Exhibit C attached. It is recognized that any assignment of the Fee Purchase Agreement to another purchaser requires the consent of the Silver Foundation. Unless otherwise agreed to in writing by the City, any transfer by MRP to a New Developer shall be made expressly subject to the terms of this Agreement. IT Lease Purchase Agreement-July 6, 2006 Lease Purchase Agreement.v11.070606.doc Page 9
Section 7. Good Faith; Consent or Approval. In performance of this Agreement or in considering any requested extension of time, the Parties agree that each will act in good faith and will not act unreasonably, arbitrarily, capriciously or unreasonably withhold or delay any notice or approval required by this Agreement. Except as otherwise provided in this Agreement, whenever consent or approval of either party is required, such consent or approval shall not be unreasonably withheld, conditioned or delayed. Special Conditions. MRP, MRA and the City agree to use reasonable Section 8. efforts to implement the terms of this Agreement and, if adopted, the Proposed Resolution. The parties acknowledge that special conditions may occur that are beyond the control of MRP and/or MRA and the City. Examples of such special conditions (“Special Conditions”) are: (A) Failure or refusal of the City to approve the final plat and subdivision in the minimum density and substantially in accordance with the Site Plan as submitted by MRP to the City on June 9, 2006, or the imposition of conditions for approval that create material economic hardship or material delays for MRP; (B) failure or refusal of the City to re-zone the Property as required to implement the Project; (C) failure or refusal of the lender to make or continue to provide funds under the RLF Loan; (D) existence of any litigation, arbitration, or proceeding before any court, administrative agency or other officer pertaining to the Property and/or the subdivision, zoning, financing through bonds, and/or collection, availability or use of tax increment funds which materially adversely affects any of the vested rights or requires of MRP terms or conditions not included in the Development Agreement; (E) failure or refusal of Montana Department of Environmental Quality (“DEQ”) to approve the Voluntary Cleanup Plan(s) and/or to issue a letter of no further action for the Property (the “No Action Letter”), and/ or the consent order(s) for the Property; (F) action or inaction of DEQ which results in costs of cleanup of the Property exceeding $1,200,000; (G) ruling, order or communication from DEQ or EPA imposing cleanup standards and/or conditions pertaining to the cleanup that have the effect of delaying issuance of the No Action Letter or requires monitoring of the Property for a period longer than the then applicable MRP Notice Period; (H) discovery of unanticipated presence of Pollutants, other concealed conditions, or archeological finds on the Property; (I) failure or refusal of Silver Foundation to convey the Property to MRP as provided in the Fee Purchase Agreement; (J) officers of the County and State of Montana have not confirmed the method of calculation of the Tax Increment Revenue for the Project; (K) the City’s, State’s or United States’ adoption or enactment of any ordinance, resolution, rule, regulation, standard, directive, condition or other measure, whether imposed by specific reference to the Property or the Project or as part of a general enactment that applies to or affects the Property or the Project, or taking of any other action that would have the effect, of materially altering, impairing, preventing, diminishing, imposing a moratorium on development, materially delaying or otherwise materially adversely affecting any of the vested rights or requiring of MRP terms or conditions not included in the Development Agreement; (L) Force Majeure, which means acts of God; strikes or lock-outs; acts of public enemy, including terrorism; the enactment, imposition or modification of any requirements of law which precludes IT Lease Purchase Agreement-July 6, 2006 Lease Purchase Agreement.v11.070606.doc Page 10
performance under this Agreement; confiscation or seizure by any government or public authority; wars or war-like action (whether actual and pending or expected and whether de jure or de facto); freight embargoes; lack of transportation; blockades; insurrections; riots; civil disturbances; governmental restrictions; economic disturbances or market conditions detrimental to the sale or redevelopment of the Property; epidemics; quarantine restrictions; landslides; earthquakes; fires; hurricanes; floods; wash-outs; unusually severe weather; explosions; nuclear reaction or radiation; delays of contractors or subcontractors due to any of these causes or conditions enumerated in this Section 8; or any other cause, whether of a kind herein enumerated or otherwise, which is not reasonably within the control of the party claiming the right to delay or postpone performance on account of such occurrence. Section 9. Funding of a Portion of Park Improvements.
The City anticipates that it will construct improvements on the Park Parcel (the “Park Improvements”). MRP agrees to the following: If the City in its discretion issues tax increment urban renewal revenue bonds of up to $1,000,000 to finance some or all of the Park Improvements (the “Park Improvement Bonds”), payable from the tax increment generated from the Property, with principal and interest amortized over the longer of twenty years or the longest period lawfully available, and if no Special Condition exists and is continuing at the time such bonds are issued and sold, and MRP owns the Leasehold but does not own the Fee, then MRP agrees that to the extent the tax increment generated from the Property is not sufficient to make the payments on the Park Improvement Bonds (the “Shortfall”), MRP will make payment of the Shortfall, and will remit the Shortfall to the City within 30 days of receipt of a statement itemizing the Shortfall. In the event MRP fails to remit timely the Shortfall payment to the City, the City is entitled to send MRP a Notice of Default specifying the default, and granting MRP thirty (30) days from receipt of the Notice within which to cure the default. In the event MRP fails to remedy the default timely, the City, as its sole remedy against MRP, is entitled to take possession of MRP’s entire interest in the Base Lease, including without limitation the Development Parcel, and the Escrow Agent for the Base Lease shall be instructed to deliver to the City both MRP’s assignment of the Leasehold to the City, and MRP’s Quit Claim Deed to the City. The Parties agree to execute such documents as are necessary in order to implement this section. It is understood that upon the effective date of MRP’s assignment of the Leasehold to the City, the City will assume the position of lessee under the Base Lease, and will have all of the benefits and obligations of the lessee pursuant to the Base Lease. In the event that MRP pays timely the Shortfall to the City, at such later time as the tax increment generated from the Property exceeds the amount necessary to make the then scheduled payments on the Park Improvement Bonds, the City agrees that as such tax increment funds become available, the City will refund to MRP the amounts of Shortfall that MRP has paid together with interest thereon at a rate to be agreed by the parties in the Development Agreement.
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The City agrees that if it issues the Park Improvement Bonds, it will use the most cost-effective financing feasible. Section 10. Miscellaneous.
a. Time is of the essence of this Agreement. The Parties will make every reasonable effort to expedite the subject matters hereof and acknowledge that the successful performance of this Agreement requires their continued cooperation. b. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when given by hand delivery, overnight delivery, mailed by certified mail, postage prepaid, return receipt requested or given by facsimile (if receipt is confirmed), addressed to the appropriate the party’s address above or at such other address or addresses as any party hereto shall designate in writing to the other Parties. c. In any proceeding brought to enforce the provisions of this Agreement, the prevailing party therein shall be entitled to an award of reasonable attorneys' fees, actual court costs and other expenses incurred. d. The laws of the State of Montana shall govern the interpretation and enforcement of this Agreement, without giving effect to choice of law principles. e. This Agreement shall be binding on and inure to the benefit of the Parties hereto, and their successors and assigns. f. The Parties hereto agree to execute such documents, and take such action, as shall be reasonably requested by the other party hereto to confirm or clarify the intent of the provisions hereof and to effectuate the agreements herein contained and the intent hereof. g. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. h. This Agreement or a memorandum of this Agreement shall be recorded in the land records of the County of Missoula under the legal description of the Property, setting forth the material terms of this Agreement. IN WITNESS WHEREOF, the MRA and the City have caused these presents to be executed in their corporate names and with their official seal hereunto affixed and attested by their duly authorized officials; and MRP has caused these presents to be executed by its duly authorized managers, as of the date first above written. [Signature pages follow.]
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MILLSITE REVITALIZATION PROJECT, LLC A Montana limited liability company
By: _________________________ Ed Wetherbee, Manager STATE OF MONTANA County of Missoula ) : ss. )
By: _______________________ Kevin Mytty, Manager
This instrument was acknowledged before me on ________________, 2006, by Ed Wetherbee and Kevin Mytty, Managers of Millsite Revitalization Project, LLC, on behalf of said limited liability company.
Notary Signature:_____________________________________ Printed Name:_______________________________________
(NOTARIAL SEAL)
Notary Public for the State of Montana Residing at: ___________________________ My Commission expires: _________________.
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THE CITY OF MISSOULA (SEAL) Attest: By: _________________________ __________________________ By:__________________________ STATE OF MONTANA County of Missoula ) : ss. )
This instrument was acknowledged before me on ____________________ ______, 2006 by ______________________, and, ____________________ as ___________________ and _______ ____________ of the City of Missoula.
Notary Signature:_____________________________________ Printed Name:_______________________________________
(NOTARIAL SEAL)
Notary Public for the State of Montana Residing at: ___________________________ My Commission expires: _________________.
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MISSOULA REDEVELOPMENT AUTHORITY (SEAL) Attest: By: _____________________________ Chairman
By: ______________________________ Secretary
STATE OF MONTANA County of Missoula
) : ss. )
This instrument was acknowledged before me on _______________________________, 2006, by ______________________ and ______________________________ as Chairman and Secretary of the Board of Commissioners, respectively, of the Missoula Redevelopment Agency.
Notary Signature:_____________________________________ Printed Name:_______________________________________
(NOTARIAL SEAL)
Notary Public for the State of Montana Residing at: ___________________________ My Commission expires: _________________.
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EXHIBIT A THE PROPERTY Lots 1 to 20 in Block 9 of Sunnyside Addition to the City of Missoula, Montana, according to the official map or plat thereof on file and of record in the office of the County Clerk and Recorder of Missoula County, Montana. All of Block 13 of Sunnyside Addition to the City of Missoula, lying West of the rightof-way line of the Northern Pacific Railway Company. [Note: The Base Lease refers to Block 18, but later documents of assignment refer to Block 13. This description shall be amended as required in order to include the correct real estate.] Lots 6 to 12 in Block 9, and Lots 6 to 19 in Block 16 of Eddy Addition to the City of Missoula, Montana, according to the official map or plat thereof on file and of record in the office of the County Clerk and Recorder of Missoula County, Montana. All that portion of the S1/2NE1/4NW1/4 of Section 21, T13N, R19W, lying South of the main channel of the Missoula River. The SE1/4NE1/4 of Section 21, T. 13N, R19W, excepting a certain right-of-way granted to the Chicago, Milwaukee, and St. Paul Railroad a corporation of Montana, by deed recorded in Volume 37 of Deeds at Page 285, and also a certain grant to the Chicago, Milwaukee and Puget Sound Railroad, a corporation of Washington, by deed recorded in Volume 56 of Deeds at Page 192, and subject to a certain right-of-way or easement for a water ditch made May 14, 1900, unto Robert M. Cobban, et al., recorded in Book 21 of Deeds at Page 257. [End of Exhibit A.]
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EXHIBIT B SUBLEASE OF PARK PARCEL
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EXHIBIT C CRITERIA FOR APPROVAL OF ASSIGNMENT The following are the criteria to be used by the City and MRA in evaluating whether a New Developer [Applicant] is acceptable: [Note: The project design will have been completed. The New Developer is to proceed with the project as previously designed by MRP and as agreed among the City, MRA and MRP, subject only to such changes as the City, MRA, and New Developer may later agree.] 1. Project Financing - Clear demonstration of the Applicant’s ability to obtain financing for the project. The proposal should present verifiable evidence of the Applicant’s history of financing successful projects of similar complexity. Preliminary business plan describing estimated development costs; proposed construction schedules; and anticipated operating costs, financing, and equity requirements. Evidence that required types of financing are currently available to the Applicant. 2. Project Feasibility - A determination of feasibility is made based on the strength of the Applicant's demonstration of market demand for the project as contained primarily on the pro forma and financing commitments. 3. Developer Ability to Perform – Applicant’s ability to undertake the project based on Applicant’s and its management team’s experience with successfully completing comparable projects. [Such projects need not be of identical scope, complexity or cost.] 4. Timely Completion - Feasibility and appropriateness of the Applicant's proposed schedule for completion of the project or project phases.
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