Full Text
1 of 5 MEMORANDUM OF UNDERSTANDING City of Missoula Montana Sustainable Building Center MEMORANDUM OF UNDERSTANDING CITY OF MISSOULA And MONTANA SUSTAINABLE BUILDING CENTER THIS AGREEMENT is entered into on the day of 2010, by and between the City of Missoula, hereinafter referred to as “the City” and the Montana Sustainable Building Center, a public benefit, non-profit corporation incorporated under the laws of Montana, hereinafter referred to as “MSBC.” WITNESSETH THAT WHEREAS, MSBC desires to purchase real property and improvements located thereon at 1515 Wyoming Street, Missoula, MT 59801, as further described in Exhibit A hereto (the “Property”), for the purpose of developing, owning and operating a regional center for the advancement of environmentally sustainable products, methods and technologies that promote the efficient use of natural resources and socially just practices, particularly in the construction industry, that will achieve its mission by bringing together otherwise disparate “green” businesses and experts in a single physical location at the Property, thereby allowing its tenants to leverage mutual benefits and synergies, such as economies of scale in marketing and distribution, shared customer bases, cross-pollination of technologies and innovations, and the combined demonstration of green business and product alternatives, particularly in the building industry (the “Center”); and WHEREAS, MSBC owns an option to purchase the Property from its current owner, Berkeley United, LLC; and WHEREAS, MSBC and the City have jointly submitted a preliminary application for a $1,400,000 grant from the United States Department of Commerce Economic Development Administration on behalf of MSBC, for the purpose of assisting MSBC in acquiring and developing the Property into the Center; and WHEREAS, EDA has selected the joint MSBC/City grant preliminary application for further consideration, thereby making it extremely likely that EDA will award a $1,400,000 grant to MSBC and the City following EDA’s receipt and review of a joint MSBC/City final grant application; and WHEREAS, the City desires to contract with MSBC to jointly submit a final grant application to EDA, and for MSBC to be a co-recipient of the EDA grant funds to purchase, develop, operate, manage, and maintain the Center at the Property on behalf of the City in an effort to promote economic development, support local “green” businesses and help remediate global climate change; and ---PAGE BREAK--- 2 of 5 MEMORANDUM OF UNDERSTANDING City of Missoula Montana Sustainable Building Center WHEREAS, MSBC desires to contract with the City to jointly submit a final grant application to EDA, and to be a co-recipient of the EDA grant funds to purchase, develop, operate, manage, and maintain the Project on behalf of, and for the benefit of, the City; and WHEREAS, the remaining financing for the Project will include a loan of approximately $1,400,000 from the Montana Board of Investments (“MBOI”), and a loan of approximately $350,000 from the Montana Community Development Corporation (“MCDC”); and WHEREAS, EDA will, as a condition of the grant if approved, place a lien on the Property for a period of fifteen (15) years to ensure that the Property is used during the duration of the lien on compliance with the EDA grant use restrictions, as will be set forth therein; and WHEREAS, following MSBC’s purchase of the Property, MBOI will hold a first position mortgage lien against the Property to enforce the terms of its loan to MSBC, EDA will hold a second position lien against the Property as described immediately above, and MCDC will hold a third position mortgage lien against the Property to enforce the terms of its loan to MSBC; and WHEREAS, the City and MSBC hereby desire to approve the joint submission of a final $1,400,000 grant application to EDA, and to recite MSBC use restrictions on the Property and the rights and obligations of the parties in the event of the foreclosure of a lien by MBOI, EDA and/or MCDC; and WHEREAS, the parties to this Agreement understand that neither party has in any way abrogated any of its individual powers, that the parties have bargained at arm’s length with each other regarding all terms set forth herein, and that this Agreement does not create any new organization or legal entity. NOW, THEREFORE, THE CITY AND MSBC MUTUALLY AGREE AS FOLLOWS: I. Submission of Final Grant Application to EDA. The City and MSBC hereby agree to cooperate and do all things necessary to jointly prepare and submit a final $1,400,000 grant application to EDA for the purpose of assisting MSBC in acquiring and developing the Property into the Center. The parties shall work together to ensure that the final grant application is thorough, complete and submitted to EDA no later than the final application deadline, as will be determined by EDA and communicated to the parties hereto. II. Property Use Restriction. In the event EDA approves the final grant application jointly submitted by the City and MSBC, and in the event such grant funds are accepted by the grantees and utilized in the acquisition and redevelopment of the Property, MSBC hereby agrees that, ---PAGE BREAK--- 3 of 5 MEMORANDUM OF UNDERSTANDING City of Missoula Montana Sustainable Building Center during the term of this Agreement, it is shall restrict its use of the Property, and the use of the Property by tenants of the Project, in conformance with all applicable EDA use restrictions as set forth in the grant or as otherwise imposed upon the Property by the EDA pursuant to its lien against the Property or otherwise. MSBC hereby agrees that it shall not change the use of the Property without the prior written consent of EDA and the prior notice to the City of such change of use. III. Transfer of Property to City. In the event EDA forecloses on its lien against the Property, or in the event of the voluntary or involuntary dissolution of MSBC during the term of this Agreement, MSBC hereby agrees that it shall transfer fee simple title to the Property to the City simultaneously with EDA’s foreclosure of its lien or concurrently with the dissolution of MSBC, as the case may be. In either event, fee simple title to the Property shall be transferred to the City by MSBC at no cost or expense to the City. IV. Duration of the Agreement. This Agreement will be in effect for the period of the EDA lien against the Property, which is fifteen (15) years from the date EDA grant funds are utilized in the acquisition and redevelopment of the Property. This Agreement shall automatically terminate upon the release of EDA’s lien against the Property. [Signatures on following page] ---PAGE BREAK--- 4 of 5 MEMORANDUM OF UNDERSTANDING City of Missoula Montana Sustainable Building Center IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day of 2010. CITY BY: DATE: John Engen, Mayor ATTEST: Martha Rehbein, City Clerk APPROVED AS TO FORM: Jim Nugent, City Attorney MONTANA SUSTAINABLE BUILDIGN CENTER BY: DATE: Rick Wishcamper, Board Chair STATE OF MONTANA ) ) County of Missoula ) On this day of 2010, before me a Notary Public for the State of Montana, personally appeared, of the in Montana, and acknowledged to me that he/she executed the written instrument on behalf of said Business. PRINTED NAME: (NOTARY SEAL) Notary Public for the State of Montana Residing at My Commission expires ---PAGE BREAK--- 5 of 5 MEMORANDUM OF UNDERSTANDING City of Missoula Montana Sustainable Building Center EXHIBIT A Property Description (To be attached)