Wye Track executed Purchase and Sale AgreementBNSF RAILWAY COMPANY
REAL ESTATE PURCHASE AND SA< E CONTRACT
jg&THIS REAL ESTATE PURCHASE AND SALE CONTRACT (the "Contract") is entered into this
day of , 2024 (the "Effective Date") by and between BNSF RAILWAY COMPANY
a Delaware corpo ion (hereafter, "BNSF"), and CITY OF KALISPELL, a municipality formed under the
laws of the State of Montana (hereafter, "Buyer").
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions set forth
herein, the parties hereby agree as follows:
Section 1. General Terms and Definitions. The following terms shall have the meanings set forth
below: i
1.1.1 Closing. The consummation of the transaction contemplated by this Agreement, which
shall be deemed to have occurred when both parties have delivered the items
contemplated in Sections 4 and 5 of this Contract.
1.1.2 Closing Date. Subject to extension as set forth herein, this sale shall close on or before
November 30, 2024. BNSF shall have the right Ito extend the Closing up to ninety (90)
days, at BNSF's sole judgment.
1.1.3 Earnest Money. The cash sum of Five Thousand and No/100 Dollars ($5,000.00) made
payable to The Bank of New York Mellon Trust Company, NA.
1.1.4 Land. That parcel of land situated in or near the City of Kalispell, County of Flathead and
State of Montana, shown hatched black on map marked Exhibit A dated 1/15/2019
attached hereto and made a part hereof, as legall�l described on the Survey (defined below
in Section 4).
1.1.5 Purchase Price. The sum of Fifty Thousand and Nlo/100 Dollars ($50,000.00).
Section 2. Property to be Sold: Purchase Price.
2.1 Subject to and in accordance with the terms, covenants, conditions, restrictions and
reservations contained in this Contract, and all existing interests, including but not limited to all reservations,
rights -of -way, leases, easements and other encumbrances, of !record or otherwise, BNSF agrees to
quitclaim to Buyer, and Buyer agrees to accept from BNSF:
2.1.1 The Land depicted on Exhibit A and Exhibit A-1 and described on Exhibit A-1 as attached
hereto and made a part hereof. In the event of a conflict between Exhibit A and Exhibit
AA=1, the parties agree that Exhibit A-1 shall govern and control.
2.1.2 All improvements (including bridges, culverts, ballast and earthwork) located on, or
otherwise affixed to, the Land, together with all other objects located on or affixed to the
Land as of the Closing Date (as defined below) add used in connection with the operation
and maintenance of BNSF's rail corridor (collectively, all such items described in this
Section 2.1.2 being referred to hereinafter as the ';Personal Property"); provided that the
Personal Property shall further include all rail, ties, spikes, tie plates, rail anchors, signaling
and communications equipment, crossings land crossing equipment, signage,
roundhouses, depots, and other support facilities, track materials and supplies, whether or
not the same are deemed affixed to the Land.
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2.1.3 Notwithstanding the foregoing or anything contained herein to the contrary, to the extent
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BNSF - Purchase and Sale Contract
City of Kalispell, MT
Page 1
any Personal Property is owned by any third party (e.g., crossing equipment owned in
whole or in part by a governmental authority), said interests shall not be conveyed unto
Buyer.
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Subject to the limitations and exclusions (if any) specifically described in Sections 2.1.1 — 2.1.3 above, all
of the above described interests are collectively referred to hereinas the "Property".
2.2 Upon submission by Buyer to Seller of this Contract, signed by Buyer, Buyer shall deposit the
Earnest Money with Goldfinch as escrow agent. Goldfinch shall hold the Earnest Money in escrow pursuant
to the terms and conditions of this Contract. The Earnest Money shall be refunded to Buyer if this Contract
is not executed and delivered by BNSF within forty five (45) days after the date Buyer delivers this Contract
fully executed by Buyer and deposits the Earnest Money. Buyer shall not be entitled to any interest on the
Earnest Money held by Goldfinch pursuant to this Contract. Buye� acknowledges that receipt by Goldfinch
of the .Earnest Money shall not constitute acceptance of this Contract or Buyer's offer provided, however,
that Goldfinch shall return the Earnest Money to Buyer if BNSF does not execute and deliver this Contract
within forty-five (45) days after Buyer deposits the Earnest Money. Goldfinch shall deliver the Earnest
Money to the party entitled thereto pursuant to this Contract, provided, however if there is a dispute between
Buyer and BNSF as to who is so entitled, Goldfinch may deposit the Earnest Money with a court of
competent jurisdiction pending resolution of such dispute.
2.3 Subject to and in accordance with the terms, covenants, conditions, restrictions and
reservations contained in this Contract, in consideration of the sale, quitclaim, assignment, transfer and
delivery of BNSF's right, title and interest, if any, in and to the Property, Buyer agrees to pay to BNSF at
Closing the Purchase Price for the Property. The Property will be quitclaimed from BNSF to Buyer by
quitclaim deed, in the form attached hereto as Exhibit B (the "Deed"), and by bill of sale in the form attached
hereto as Exhibit C (the "Bill of Sale'
2.4 The parties acknowledge that portions of the Property are or may be subject to leases
(collectively, the "Leases"). Buyer accepts all of BNSF's right, Title and interest in and to the Property
subject to all of the terms and conditions of the Leases, and further covenants and agrees to assume all of
BNSF's obligations as landlord under such Leases. Without limitation to Section 15 below, this Section
2.4 shall survive the Closing of the transaction contemplated under this Contract.
Section 3. Inspections
3.1 Buyer acknowledges that: a) the historical use of the Property included railroad and
industrial operations and that there may be environmental impacts; b) that the Property is being conveyed
As -Is With All Faults including those relating to the environmental icon dition of the property; c) Buyer plans
to develop the Property solely for non -industrial uses, including but not limited to parklands, drainage areas,
and bicycle and pedestrian trails (collectively, the "Intended Use"),; and no other purpose; and d) such non-
industrial use of the Property as contemplated as part of the Intended Use may require the implementation
of remedial or corrective actions to ensure the protection of human health or the environment.
3.1.1 Prior to the Effective Date, Buyer at its expense has obtained a Phase I
environmental site assessment of the Property, as further described in that certain report titled
Phase I Environmental Site Assessment— W e Track — South Meridian Road Kalispell Montana,
prepared by NewFields Companies, LLC, Project 150.35295.001, dated May 2024 (the "Phase
ESA"), to review whether Buyer's Intended Use poses a threat to human health or the environment.
BNSF acknowledges that Buyer has provided BNSF with !a copy of the Phase I ESA. BNSF has
reviewed the Phase I ESA and has determined that Phase II environmental testing ("Phase II
ESA"), including collection of soil and groundwater samI les from all areas of the Property, is
required prior to Closing.
3.1.2 Within 60 days after the execution of this Contract, Buyer shall perform the Phase
II ESA and any and all additional assessments, remediatii n, and/or monitoring on the Premises
BNSF - Purchase and Sale Contract
City of Kalispell, MT
Page 2
necessary for and prior to Buyer's Intended Use of the I
remediation, and/or monitoring shall be coordinated v
conducted through a separate Right of Entry Agreement
contractor or consultant, and BNSF pursuant to the req
commencement of any sampling of soil or groundwater,
at Env-Lease-Term(a)-bnsf.com for BNSF's review and al
to extend the Closing Date set forth in Section 1.1.2
obligation, to extend the Closing Date for an additional E
report to review the findings set forth in such report.
*operty; however any such assessment,
th BNSF. The Phase II ESA must be
ntered into by the Buyer, as agent for its
irements of Section 3.6 below. Prior to
3uyer must submit a work plan to BNSF
)roval. Without limitation to BNSF's right
bove, BNSF has the right, but not the
l days after receipt of the Phase II ESA
3.2 Buyer acknowledges that BNSF makes no guarantee, representation orwarranty regarding
the physical or environmental condition of the Property, and BNSF expressly disclaims any and all
obligations and liabilities to Buyer regarding any defects which nay exist with respect to the physical or
environmental condition of the Property.
3.3 Buyer shall be responsible for the remediation of the physical and environmental condition
of the Property to a standard suitable for Buyer's Intended Use as identified in the Environmental
Assessment or any other assessments or investigations. Subjectlto all applicable laws, Buyer covenants
not to sue BNSF, and releases all rights or claims against BNSF, I arising from or relating to any known or
unknown physical or environmental condition of the Premises, or for any costs of investigation or
remediation or cure of any physical or environmental condition of the Premises, regardless of whether such
condition is identified as part of the assessments or investigations under this Contract or discovered after
Closing.
3.4 Subject to all applicable laws, Buyer shall indemr'ify defe d d In Id h
present and future officers, directors, employees and successors
penalties, fines, forfeitures, demands, claims, causes of action, s
thereto (including cost of defense, settlement and reasonable attoi
hereafter suffer, incur, be responsible for or pay out as a result o
property (public or private); claims regarding the environmental c
contamination of or adverse effects on the environment; or any I
restrictions or restrictive covenants provided for in statutes, ordine
governmental entity, department or agency, caused by or arising
Premises, including, but not limited to those resulting from (i)
aggravate or contribute to any environmental condition already
activities related to or in connection with Buyer's Intended Use; or (
and adhere to all terms, conditions, and covenants of this Contrac
n an o armless BNSF, its
from and against any and all liabilities,
sits, and costs and expenses incidental
ieys' fees) which any or all of them may
injury to any person or damage to any
>ndition of the Premises; any and all
olation or alleged violation of the deed
ices, orders, rules or regulations of any
ut of the environmental condition of the
:ests and studies of the Property that
in existence at the Effective Date; (ii)
i) any failure by the Buyer to observe
3.5 BNSF acknowledges that City of Kalispell, being a political subdivision of the State of
Montana, is governed by the provisions of the Montana Code Annotated Section Title 2, Chapter 9, Part I,
for causes sounding in tort.
3.6 Buyer, or its designated representatives, shall have reasonable access to the Property and
may conduct, at Buyer's sole cost and expense, such surveys, studies, tests, or inspections as it deems
appropriate in accordance with the terms and provisions of the Right of Entry Agreement; provided,
however, prior to the conduct of a Phase II ESA or any other intrl sive "Phase II Level" environmental or
other intrusive testing or any borings or sampling of any material ot- media, including soil, surface water, or
ground water, Buyer shall submit a work plan to BNSF's contact 'in Section 3.1 above for approval and
enter into BNSF's standard Right of Entry Agreement(s) for such testing, borings or sampling, which
agreement(s) shall detail, without limitation, the specific scope of testing, borings, sampling or other work
to be performed and the consultant or persons that will be performing such testing, borings, sampling or
other work. Buyer shall promptly provide copies of all such reports to BNSF before finalization, and BNSF
reserves the right to review and comment on any and all such reports.
BNSF - Purchase and Sale Contract
City of Kalispell, MT
Page 3
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3.7 Notwithstanding any terms and conditions that may be included in BNSF's standard Right
of Entry Agreement, if one is required, prior to conducting any such surveys, studies, tests, or inspections
on the Property, Buyer shall require all contractors doing any test or inspection of the Property to provide
BNSF with a certificate of insurance evidencing Commercial General Liability insurance coverage of at least
$1,000,000 with BNSF named as an additional insured and showing worker's compensation coverage with
a waiver of subrogation rights against BNSF.
3.8 Notwithstanding any terms and conditions that may be included in BNSF's standard Right
of Entry Agreement, if one is required, (i) Buyer shall conduct all surveys, studies, tests, and inspections of
the Property in a manner that will not interfere with the operations of BNSF thereon and will not harm or damage
the Property or cause any claim adverse to BNSF, and immediately following such surveys, studies, tests,
and inspections Buyer shall restore the Property to the condition existing immediately prior to such activities;
(ii) Buyer shall give BNSF reasonable prior notice of any such surveys, studies, tests, or inspections and
BNSF shall have the right to be present during any such surveys, studies, tests, or inspections; and (iii) Buyer
shall not disclose the results of any such surveys, studies, tests, or�inspections to any third parties except as
required by applicable law or with written consent of BNSF.
3.9 If environmental contamination of the Property isl revealed by the Phase I ESA, Phase II
ESA or any other studies and tests conducted by Buyer pursuaht to this Section, in an amount and/or
concentration not suitable for Buyer's Intended Use, or, if Buyer is unwilling to accept the environmental
condition of the Property as a result of such Phase I ESA, Phase Ili ESA or any other tests or assessments,
the sole and exclusive remedy of Buyer or BNSF shall be to terminate this Contract, in which case the
Earnest Money shall be refunded to Buyer. Under no circumstances shall BNSF be required to correct,
remedy or cure any condition or environmental contamination of the Property revealed by the Phase I ESA,
Phase II ESA or any other studies and tests conducted by Buyer as a condition to Closing or other
performance hereunder.
3.10 In addition to and not in limitation of each party's right to terminate this Contract in accordance
with Section 3.9 above, Buyer shall have thirty (30) days from the Effective Date to terminate this Contract on
written notice to BNSF for any or for no reason, including without limitation the environmental condition of the
Property. If Buyer does so terminate this Contract, the Earnest Money shall be refunded to Buyer, and neither
party shall have any further obligations hereunder except those that expressly survive termination. If this
Contract is not so terminated, the parties shall proceed to Closing according to the remaining provisions of
this Contract.
Section 4. Conditions to Closing. The following shall be conditions to BNSF's obligation to
consummate the transaction. If any of these conditions are not satisfied by the applicable date indicated
below (or if no date is indicated below then by the Closing Date)jsuch date may be extended by mutual
agreement of the parties until such condition(s) is fulfilled. If the parties are unable to mutually agree on
extension of the date, BNSF may elect to: (i) proceed to Closing, in which case the following terms and
conditions, to the extent they remain unfulfilled, shall survive Closing or (ii) terminate this Contract by written
notice to Buyer.
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4.1 If the approval of any federal, state or local governmental agency, including but not limited
to approval of the Surface Transportation Board ("STB"), is required for the sale of the Property, it is
understood and agreed that the Closing of the transaction under this Contract is conditioned upon obtaining
such approval and that both parties shall use their best efforts to obtain such approval. If such approval
cannot be obtained by the Closing Date, BNSF may elect to extendjthe Closing Date to a date no later than
ninety (90) days after the original Closing Date. In the event said approval cannot be obtained by such
extended date, either party may terminate this Contract without liability to the other, except that the Earnest
Money shall be refunded to Buyer and thereafter neither party shall have any obligation hereunder except
those that expressly survive termination.
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4.3 Prior to the Effective Date, BNSF acknowledges that Buyer has provided to it a Certificate
of Survey dated June 11, 2024 and recorded June 14, 2024 in the Official Public Records of Flathead
BNSF - Purchase and Sale Contract
City of Kalispell, MT
Page 4
County, Montana as Document No. 202400009860 (the "Survey';), which Survey contains a depiction and
a legal description of the Property. The parties acknowledge and agree that the Survey legal description
shall be the description of the Property for all purposes under this! Contract. The Survey is attached hereto
as Exhibit A-1 and incorporated herein by this reference. In the event a city, county, or other governing
authority where the Property is located (a "Municipality") requires a survey or plat to convey the Property
(a "Plat"), the Buyer shall obtain, at Buyer's sole cost and expense, such Plat and the approval of such
Municipality. BNSF's obligations hereunder are conditioned upon �NSF's approval of the Plat approved by
the Municipality. Buyer shall provide the proposed Plat to BNSF prior to submission to the Municipality.
4.4 Buyer shall have performed each of Buyer's obligations under this Contract.
Section 5. CIosing.
5.1 Upon satisfaction of the conditions to Closing set forth in Section 4 above, the closing
("Closing") of the sale of the Property by BNSF to Buyer shall occur in or through the offices of Insured
Titles, 44 4th St. West, P.O. Box 188, Kalispell, MT 59901, tel. 406-755-5028, attn. Dorinda Gray ("Title
Company") on or before the Closing Date.
5.2 At the Closing, all of the following must occur, all of which are concurrent conditions:
5.2.1 Buyer, at Buyer's sole cost and expense,] shall deliver or cause to be delivered to
Title Company, as escrow agent, for the immediate disbursement and delivery by the Title
Company as hereinafter set forth, the following:
(i) An original of the Deed in the form attached to this Contract as Exhibit B, executed
and acknowledged by Buyer, accepting the quitclaim of th;e Property;
(ii) Duplicate original counterparts of the Bill !of Sale for the Personal Property in the
form attached to this Contract as Exhibit C, executed by Buyer;
(iii) If not previously delivered to BNSF, duplicate original counterparts of the Notice of
Assignment in the form attached to this Contract as Exhibit D, executed by Buyer;
(iv) Duplicate original counterparts of an Assignment and Assumption of the Leases,
in form and substance acceptable to BNSF (the "Lease Ai signment"), executed by Buyer;
(v) Immediately available funds in the form' of a federal wire transfer, certified or
cashier's check or such other means of funding acceptable to Title Company in an amount equal
to the Purchase Price less the Earnest Money, subject to any adjustments in accordance with the
terms hereof; and
(vi) such other affidavits or certificates as may be reasonably required by the Title
Company, or as are otherwise reasonably necessary or customary to consummate the transaction
in form and substance reasonably acceptable to Buyer and BNSF.
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5.2.2 BNSF, at BNSF's sole cost and expense, ]shall deliver or cause to be delivered to
Title Company, as escrow agent, for the immediate disbursement and delivery by the Title
Company as hereinafter set forth, the following:
0) An original of the Deed, executed and acknowledged by BNSF, quitclaiming the
Property to Buyer;
(ii) Duplicate original counterparts of the Bill of Sale for the Personal Property,
executed by BNSF;
BNSF - Purchase and Sale Contract
City of Kalispell, MT
Page 5
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(iii) Duplicate original counterparts of the Lease Assignment, executed by BNSF; and
(iv) such other affidavits or certificates as ray be reasonably required by the Title
Company, or as are otherwise reasonably necessary or customary to consummate the transaction
in form and substance reasonably acceptable to Buyer and BNSF.
5.3 Upon satisfaction and delivery of all of the matters described in Section 5.2 above, Title
Company shall act as escrow agent in closing the transaction hereunder and shall:
5.3.1 Record the Deed in the Deed Records of the county (or city, if applicable) in which
the Property is located with instructions for the recorder to 'return the original executed and recorded
Deed to Buyer.
5.3.2 Deliver original counterparts of the Bill of Sale and Lease Assignment and copies
of all other closing documents to Buyer and BNSF, respectively.
5.3.3 Release the Purchase Price to BNSF.
Section 6. No Pro -rations: Closing Costs. The parties acknowledge that, except as otherwise
stated in this Contract, no pro -rations of revenues, costs or expeni es will be made at Closing.
6.1 All outstanding tax liabilities and assessments due and payable prior to the Closing shall
be paid by BNSF and any such tax liabilities and assessments due and payable after the Closing shall be
paid by Buyer. No pro -rations will be made. Buyer acknowledges that the Property is not separately
assessed. The parties shall cooperate, at no cost to BNSF, to cause the Property to be separately assessed
as soon as possible after Closing and until such time the parties will equitably apportion the taxes
attributable to the Property.
6.2 All rents under the Leases collected by BNSF prior to Closing, regardless of whether any
portion of such rents is prepaid but unearned at the date of Closing, shall be and remain the property of
BNSF, and Buyer shall not have any rights in or to such rents. All rents collected by Buyer after Closing
shall be and remain the property of Buyer, and BNSF shall not have any rights in or to such rents.
6.3 The parties shall cooperate so that utilities serving the Property that are not the responsibility
of a tenant under a lease to be assigned to Buyer at Closing, to the extent feasible, shall be switched into
the name of Buyer as of the Closing Date, so that a final statement can be issued to BNSF for the billing
period ending on the Closing Date, and so that the first day of the first billing cycle in Buyer's name can
begin on the Closing Date. If, however, the final statement coverir1g the final period of ownership by BNSF
also includes periods of ownership by Buyer, Buyer shall pay BNSF at Closing the amount attributable to
Buyer's period of ownership. Buyer shall be responsible to pay all utilities serving the Property due after
Closing.
6.4 Buyer agrees to purchase, affix and cancel any and all documentary stamps in the amount
prescribed by statute, and to pay any and all required transfer taxes, excise taxes and any and all fees
incidental to recordation of the Deed and Bill of Sale. BUYER SHALL BE LIABLE AND SHALL
INDEMNIFY BNSF FOR ALL COSTS, EXPENSES AND JUDGMENTS TO OR AGAINST BNSF,
INCLUDING ALL OF BNSF'S LEGAL FEES AND EXPENSES, ARISING OUT OF BUYER'S FAILURE
TO COMPLY WITH THE REQUIREMENTS OF THIS SECTION AND THE SAME SHALL CONSTITUTE
A LIEN AGAINST THE PROPERTY UNTIL PAID BY BUYER.
6.5 In addition to payment of the Purchase Price, Buyer shall pay all costs of Closing (except
BNSF's costs of preparation of documents to be delivered at Closing). This includes, but is not limited to
any transaction fees, transfer taxes, escrow and service fees, wire service fees, recording fees and sales
taxes associated with this Contract or any of the conveyances and assignments governed by this Contract.
In addition to and not in limitation of the foregoing, Buyer, at its e'Pense, shall (i) execute and deliver to
BNSF - Purchase and Sale Contract
City of Kalispell, MT
Page 6
BNSF such documents, instruments, certificates, assignments and other writings to evidence the quitclaim
of the Property from BNSF to Buyer as BNSF or its successors and assigns may reasonably require from
time to time; and (ii) do and execute such further lawful and reasonable acts, conveyances, and assurances
for the better and more effective carrying out of the intents and purposes of this Contract, as BNSF or its
successors or assigns may reasonably request from time to time.
6.6 Any judgment against BNSF which may appear;of record as a lien against the Property
shall be settled and satisfied by BNSF if and when it is judicially idetermined to be valid, and BNSF shall
indemnify the Buyer for all loss arising out of BNSF's failure to have a judgment lien so settled and satisfied.
6.7 Without limitation to Section 15 below, the provisions of this Section 6 shall survive the
Closing and shall not merge into the Deed or Bill of Sale.
Section 7. Nature of Sale.
7.1 Subject to the provisions of Section 3 above, E
inspection of the Property. Buyer also represents and warrants I
use of the Property. Based upon this inspection and knowledge, ai
willingness to enter into this transaction, Buyer is aware of the
SPECIFICALLY ACKNOWLEDGES THAT THE PROPERTY IS
WITH ALL FAULTS" BASIS WITH ANY AND ALL PATENT.
THOSE RELATING TO THE ENVIRONMENTAL CONDITION OI
IS NOT RELYING ON ANY REPRESENTATIONS OR WARRAN
KIND WHATSOEVER FROM BNSF AS TO ANY MATTERS COI
without limitation, the physical condition of the Property; zor
transaction; utilities; operating history or projections or valuai
Environmental Laws (defined below) or other laws, statutes, ord
requirements applicable to the Property; the presence of any F
wetlands, asbestos, lead, lead -based paint or other lead containini
environmentally sensitive building materials in, on, under, or in pi
existence of any of the above ground or underground structure!
transformers in, on or under the Property; the condition of title to tt
reservations, permits, orders, licenses, or other rights or agre(
EXPRESSLY DISCLAIMS ANY WARRANTIES FOR THE
THERETO, INCLUDING, WITHOUT LIMITATION, WARRANTIE
HABITABILITY, FITNESS FOR ANY PARTICULAR PURPOSE,
TO ITS INTENDED USE.
7.2 Buyer further acknowledges that a material cor
which it would not be made, is the agreement by Buyer, for itself an
its predecessors, successors, and assigns shall be in no manne
owner, purchaser, or any person for any claims, demands, dam.
access, or suits regarding the quiet and peaceable possession of t
thereof. Buyer acknowledges and affirms that BNSF may not ho
interest in the Property, and that BNSF's interest in the Property
easement for railroad purposes. BUYER IS WILLING TO ACCEF
IF ANY, ON THIS BASIS AND EXPRESSLY RELEASES BNS
FROM ANY CLAIMS THAT BUYER OR ITS SUCCESSORS
CONVEYANCE TO BE MADE AT CLOSING. IN LIGHT OF BN!
HOLD FEE SIMPLE TITLE OR ANY OTHER INTEREST II
INDEMNIFY, DEFEND AND HOLD BNSF HARMLESS FROM P
PUNITIVE OR OTHERWISE, EXPENSES, ATTORNEYS' FEES,
IMPOSED ON BNSF AS THE RESULT OF ANY PERSON OR EN
PROPERTY OR CLAIMING THAT BNSF DID NOT HAVE THE RI
TO BUYER.
BNSF - Purchase and Sale Contract
City of Kalispell, MT
Page 7
iyer has or will be allowed to make an
iat Buyer has knowledge as to the past
d as a material consideration for BNSF's
condition of the Property and BUYER
BEING QUITCLAIMED ON AN "AS -IS
LND LATENT DEFECTS, INCLUDING
THE PROPERTY, AND THAT BUYER
'IES, EXPRESS OR IMPLIED, OF ANY
CERNING THE PROPERTY, including,
ng status; tax consequences of this
3n; compliance by the Property with
lances, decrees, regulations and other
azardous Substances (defined below),
structures, urea formaldehyde, or other
)ximity to the Property; the condition or
or improvements, including tanks and
Property; and any leases, easements,
ments, affecting the Property. BNSF
3ROPERTY OR APPURTENANCES
AS TO TITLE, MERCHANTABILITY,
R CONFORMITY OF THE PROPERTY
oideration for this conveyance, without
its successors and assigns, that BNSF,
responsible to Buyer, any subsequent
aes, causes of action, including loss of
e Property, title thereto, or the condition
I fee simple title or any other particular
if any, may rise only to the level of an
r BNSF'S TITLE TO THE PROPERTY,
', ITS SUCCESSORS AND ASSIGNS
A" HAVE AS A RESULT OF THE
F'S DISCLOSURE THAT IT MAY NOT
THE PROPERTY, BUYER SHALL
JY SUIT OR CLAIM FOR DAMAGES,
)R CIVIL PENALTIES THAT MAY BE
'ITY CLAIMING AN INTEREST IN THE
3HT TO TRANSFER THE PROPERTY
7.3 Without limitation to Section 15 below, the provisions of Sections 7.1 and 7.2 above shall
run with the land, be included in the Deed and shall be binding upon the successors and assigns of Buyer
and inure to the benefit of BNSF and its successors and assigns. i
7.4 In addition to and not in limitation of the provisions of Section 7.1 above, as a material
consideration of BNSF's willingness to enter into this transaction, Buyer acknowledges and agrees that
BNSF has made no representations or warranties respecting the nature or condition of the Personal
Property. BNSF HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY, WHETHER
EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITIONI OF THE PERSONAL PROPERTY, ITS
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OF THE
MATERIAL OR WORKMANSHIP OF THE PERSONAL PRO�PERTY, THE CONFORMITY OF THE
PERSONAL PROPERTY TO ITS INTENDED USES OR THE QUALITY OF THE TITLE TO THE
PERSONAL PROPERTY. BNSF SHALL NOT BE LIABLE TO BUYER FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING STRICT LIABILITY IN TORT) WITH RESPECT TO THE
DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE, OF THE PERSONAL PROPERTY OR THE CONFORMITY OF THE
PERSONAL PROPERTY TO ITS INTENDED USES. BUYER ACCEPTS THE PERSONAL PROPERTY
IN "AS IS, WHERE IS" AND "WITH ALL FAULTS" CONDITION,IAND SUBJECT TO ALL LIMITATIONS
ON BNSF'S RIGHTS, INTEREST, AND TITLE TO THE PROPERTY COMPRISING THE PERSONAL
PROPERTY. The provisions of this Section 7.4 shall be included in the Bill of Sale and shall be binding
upon the successors and assigns of Buyer and inure to the benefit of BNSF and its successors and assigns.
Section 8. Environmental.
8.1 Buyer acknowledges and represents to BNSF that Buyer is aware of the risk that
Hazardous Substances may be present on, under, in or about the Property and that Buyer has conducted,
or will conduct prior to Closing, such investigations of the Property including but not limited to, the physical
and environmental conditions thereof, as Buyer deems necessary to satisfy itself as to the condition of the
Property and will rely solely upon same and not upon any information provided by or on behalf of BNSF or
its agents or employees with respect thereto. BUYER ASSUMES ��HE RISK THAT ADVERSE MATTERS
MAY NOT HAVE BEEN REVEALED BY BUYER'S INVESTIGATIONS, AND BUYER SHALL
INDEMNIFY, HOLD HARMLESS AND HEREBY WAIVES, RELEASES AND DISCHARGES FOREVER
BNSF (AND BNSF'S AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES,
AGENTS, LICENSEES AND INVITEES) FROM ANY AND ALL! PRESENT OR FUTURE, KNOWN OR
UNKNOWN, CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING, BUT NOT LIMITED TO, THOSE
IN CONTRACT, TORT AND STRICT LIABILITY), DAMAGES (INCLUDING, WITHOUT LIMITATION,
CONSEQUENTIAL AND PUNITIVE), LOSSES (HEREIN DEFINED), INJURIES, LIABILITIES, COSTS
(INCLUDING, BUT NOT LIMITED TO, FINES, PENALTIES, COURT COSTS AND ATTORNEYS' FEES)
ARISING FROM OR IN ANY WAY RELATED TO (1) ANY LATENT OR PATENT CONDITIONS OF THE
PROPERTY, (11) ANY BODILY INJURY OR DEATH OR LOSS OR DAMAGE TO THE PROPERTY OF
ANY PERSON OR PERSONS WHOMEVER, INCLUDING THE PARTIES HERETO, IN ANY MANNER
ARISING FROM OR GROWING OUT OF THE ACTS OR OMISSIONS, NEGLIGENT OR OTHERWISE,
OF BUYER OR ITS OFFICERS, DIRECTORS, SHAREHOLDERS EMPLOYEES, AGENTS, LICENSEES
AND INVITEES IN CONNECTION WITH THE ENTRY UPON, OCCUPATION OR USE OF THE
PROPERTY, AND/OR (III) ANY ALLEGED OR ACTUAL PRESENCE, USE, STORAGE, GENERATION,
MANUFACTURE, TRANSPORT, RELEASE, LEAK, SPILL, DISPOSAL OR OTHER HANDLING OF ANY
HAZARDOUS SUBSTANCES IN, ON, UNDER OR ABOUT THE1' PROPERTY. As used in this Section,
the term "Losses" shall include without limitation (a) the cost of any investigation, removal, remedial or
other response action that is required by any Environmental Law that is required by judicial order or by
order of or agreement with any governmental authority, or that is necessary or otherwise is reasonable
under the circumstances, (b) capital expenditures necessary to cause BNSF's remaining property or the
operations or business of BNSF on its remaining property to be in compliance with the requirements of any
Environmental Law, and (c) costs imposed under any Environmental Law enacted after Closing. As used
in this Contract, the term "Environmental Law" means any federal, state or local statute, regulation, code,
BNSF - Purchase and Sale Contract
City of Kalispell, MT
Page 8
rule, ordinance, order, judgment, decree, injunction or common law pertaining in any way to the protection
of human health, occupational safety, natural resources, plant or;animal life or the environment, including
without limitation, principles of common law and equity, the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control
Act, and any similar or comparable state or local law. As used in this Contract, the term "Hazardous
Substance" means any hazardous, toxic, radioactive or infectious substance, material, contaminant or
waste as defined, listed or regulated under any Environmental Law, and includes without limitation,
petroleum, oil and any of its fractions. The rights of BNSF under tliis Section 8.1 shall be in addition to and
not in lieu of any other rights or remedies to which it may be entitled under this Contract or otherwise. This
indemnity specifically includes the obligation of Buyer to remove, close, remediate, reimburse or take other
actions requested or required by any governmental agency concerning any Hazardous Substances or
contaminants on the Property.
8.2 Without limitation to Section 15 below, the provisions of Section 8.1 shall run with the
land, be included in the Deed and shall be binding upon the successors and assigns of Buyer and inure to
the benefit of BNSF and its successors and assigns.
Section 9. Indemnifications.
9.1 TO THE FULLEST EXTENT PERMITTED BY LAW, BUYER SHALL INDEMNIFY,
DEFEND AND HOLD HARMLESS BNSF AND BNSF'S AFFILIATES, OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE
"INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, DAMAGES,
LOSSES, LIENS, FINES, PENALTIES, COSTS, CAUSES OF (ACTION, SUITS, JUDGMENTS, AND
EXPENSES (INCLUDING, WITHOUT LIMITATION, CLAIMS AND LIABILITIES RELATING TO
PERSONAL INJURY, BODILY INJURY OR PROPERTY DAMAGE) (COLLECTIVELY, THE "CLAIMS")
OF ANY PERSON OR ENTITY WHOMSOEVER, DIRECTLY OR INDIRECTLY ARISING OUT OF,
RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART) (1) ANY ACTION OF ANY PERSON OR
FIRM ENTERING THE PROPERTY ON BUYER'S BEHALF TO PERFORM THE INSPECTION
CONTEMPLATED UNDER SECTION 3 OR OTHERWISE; (11) BUYER'S OWNERSHIP OR USE OF THE
PROPERTY; (111) ANY BREACH BY BUYER OF ANY OF ITS REPRESENTATIONS OR WARRANTIES
SET FORTH HEREIN, OR ANY FAILURE BY BUYER TO PERFORM ANY OF ITS OBLIGATIONS
UNDER THIS CONTRACT; (IV) ANY CLAIMS OF THIRD PARTIES CAUSED BY BUYER'S
NONPERFORMANCE OR PERFORMANCE AFTER CLOSING UNDER ANY CONTRACT, LEASE,
PERMIT, LICENSE, EASEMENT OR COMMITMENT RELATING TO THE PROPERTY; (V) BNSF'S
ABANDONMENT OR DISCONTINUANCE OF ANY LINE OF RAIL RUNNING OVER OR ADJACENT TO
THE PROPERTY OR (VI) ANY ACT OR OMISSION, INCLUDING NEGLIGENCE, OF BUYER, ITS
EMPLOYEES, INDEPENDENT CONTRACTORS, SUBCONTRACTORS, LESSEES, LICENSEES,
PERMITTEES, INVITEES, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY OR UNDER THE
CONTROL OF ANY OF THEM, EVEN IF SUCH CLAIMS ARISE IN WHOLE OR IN PART FROM ANY
NEGLIGENCE OF ANY INDEMNITEE. THE ONLY CLAIMS WITH RESPECT TO WHICH BUYER'S
OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE CLAIMS TO THE EXTENT
FINALLY ADJUDICATED TO HAVE BEEN PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT OF AN INDEMNITEE.
i
9.2 BUYER SHALL PROMPTLY ADVISE BNSF IN WRITING OF ANY ACTION,
ADMINISTRATIVE OR LEGAL PROCEEDING OR INVESTIGATION AS TO WHICH THIS
INDEMNIFICATION MAY APPLY, AND BUYER, AT BUYER'S EXPENSE, SHALL ASSUME ON
BEHALF OF BNSF (AND THE OTHER INDEMNITEES), AND CONDUCT WITH DUE DILIGENCE AND
IN GOOD FAITH THE DEFENSE THEREOF WITH COUNSEL SELECTED BY BUYER WHO IS
REASONABLY SATISFACTORY TO BNSF; PROVIDED, HOWEVER, THAT BNSF SHALL HAVE THE
RIGHT, AT ITS OPTION, TO BE REPRESENTED THEREIN BY ADVISORY COUNSEL OF ITS OWN
SELECTION AND AT ITS OWN EXPENSE. IN THE EVENT ,OF FAILURE BY BUYER TO FULLY
PERFORM IN ACCORDANCE WITH THIS INDEMNIFICATION, BNSF, AT ITS OPTION, AND WITHOUT
RELIEVING BUYER OF ITS OBLIGATIONS HEREUNDER, MAY !SO PERFORM, BUT ALL COSTS AND
BNSF - Purchase and Sale Contract
City of Kalispell, MT
Page 9
EXPENSES SO INCURRED BY BNSF IN THAT EVENT SH
BNSF, TOGETHER WITH INTEREST ON THE SAME FROM
PAID BY BNSF UNTIL REIMBURSED BY BUYER, AT THE F
PAID ON JUDGMENTS BY THE LAW OF THE JURISDICTION
CONTRACT IS SUBJECT. THIS INDEMNIFICATION SHA
COMPENSATION OR BENEFITS PAYABLE UNDER
COMPENSATION ACTS, DISABILITY BENEFIT ACTS, OR Ol
9.3 TO THE FULLEST EXTENT PERMITTED B'
REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEC
INDEMNIFY AND HOLD HARMLESS THE INDEMNITEES /
DEFENSE OF ANY LIABILITIES ASSERTED AGAINST OR SU
OR RELATED TO THE FEDERAL EMPLOYERS' LIABILITY Al
OF BUYER OR ANY OF ITS AGENTS, INVITEES, CONTRAC'
OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY ID
INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, 1
OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE O
INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE
ACT, THE OCCUPATIONAL SAFETY AND HEALTH ACT, TI
RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL S
-L BE REIMBURSED BY BUYER TO
W DATE ANY SUCH EXPENSE WAS
,TE OF INTEREST PROVIDED TO BE
0 WHICH INTERPRETATION OF THIS
. NOT BE LIMITED TO DAMAGES,
SURANCE POLICIES, WORKERS'
ER EMPLOYEES' BENEFIT ACTS.
LAW, BUYER FURTHER AGREES,
.IGENCE OF ANY INDEMNITEE, TO
GAINST AND SHALL ASSUME THE
FERED BY ANY INDEMNITEE UNDER
T ("FELA") WHENEVER EMPLOYEES
ORS OR SUBCONTRACTORS CLAIM
)EMNITEE OR OTHERWISE. THIS
FELA CLAIMS BASED ON ACTUAL
LOCAL LAWS OR REGULATIONS,
WT, THE LOCOMOTIVE INSPECTION
RESOURCE CONSERVATION AND
ATUTE.
Section 10. Reservation: Covenant. Without limitation to Section 15 below, the obligations in this
Section 10 shall be binding upon Buyer and its heirs, successors and assigns, shall be included in the
Deed, and shall be covenants running with the land benefiting BNSF and BNSF's successors and assigns.
10.1 Buyer's interest shall be subject to a reservation to BNSF of all coal, oil, gas, casing -head
gas, and all ores and minerals of every kind and nature includingi sand and gravel underlying the surface
of the Property, together with the full right, privilege, and license at any and all times to explore, or drill for
and to protect, conserve, mine, take, remove, and market any and all such products in any manner which
will not damage structures on the surface of the Property, together with the right of access at all times to
exercise said rights; provided, however, BNSF's exercise of this reservation shall not permanently damage
improvements placed on the Property by Buyer or its successors) and shall not unduly burden the use of
the Property for non -industrial uses. In no event will BNSF have the right to conduct strip mining activities
on the Property.
10.2 Buyer covenants and agrees that the Property shall be used solely for non-residential
purposes, that the groundwater will not be used for drinking waterlor irrigation purposes, and that no wells
will be installed on the Property without BNSF's written consent.
Section 11. Default/Remedies.
11.1 In the event of a default by Buyer under the terms of this Contract, BNSF's sole and
exclusive remedies shall be: (a) terminate this Contract whereupon the parties shall have no further
obligations hereunder except those that expressly survive termination, or (b) waive such default and
proceed Closing, or (c) obtain specific performance of this Contract. If BNSF terminates this Contract as
provided in the previous sentence BNSF shall be entitled to retain the Earnest Money. Notwithstanding the
foregoing, nothing contained herein shall waive or diminish any right or remedy BNSF may have at law or
in equity for Buyer's default or breach of any obligation hereunder to be performed by Buyer after Closing.
It is hereby agreed that BNSF's damages in the event of a defauli by Buyer hereunder are uncertain and
difficult to ascertain, and that the Earnest Money constitutes a reasonable liquidation of such damages and
is intended not as a penalty, but as liquidated damages.
11.2 In the event of a default by BNSF under the teems of this Contract, Buyer's sole and
exclusive remedies hereunder shall be to terminate this Contract and receive a refund of the Earnest
Money. Upon such termination and the payment of such sum by (BNSF the parties shall have no further
i
BNSF - Purchase and Sale Contract
City of Kalispell, MT
Page 10
obligations hereunder except those that expressly survive termination. Notwithstanding the foregoing,
nothing contained herein shall waive or diminish any right or remedy Buyer may have at law or in equity for
BNSF's default or breach of any obligation hereunder to be performed by BNSF after Closing.
11.3 Nothing contained in the foregoing shall be deemed to limit any liability, obligation or
remedy related to Buyer's indemnification obligations set forth herein or in the Right of Entry Agreement.
Section 12. Liens of BNSF's Mortgages. BNSF shall use c
to Buyer, who shall place of record, good and sufficient releases
required under the terms of any mortgage on the Property that sec
a reasonable period of time after Closing. If BNSF shall be unat
within two (2) years from the date of Closing, BNSF shall have
serving written notice of termination upon Buyer within thirty (3C
thereupon be released and discharged from all liabilities and obi
indemnity for loss and damage which arose or accrued prior to the
for a refund of the Purchase Price, Buyer shall reconvey title to
defects or objections to the same extent as if no conveyance hac
expressly acknowledges and agrees that BNSF's termination of tt
obtain and deliver good and sufficient releases of the liens of I
reconveyance of the Property and BNSF's repayment of the Purc
12 shall not in any event obligate BNSF to repurchase the Proper
immercially reasonable efforts to deliver
if the liens of BNSF's mortgages, where
Tres debt for which BNSF is liable, within
to obtain said releases for any reason
ie right to terminate this Contract upon
days thereafter, and both parties shall
nations hereunder, except liabilities and
termination. In such event, in exchange
.he Property to BNSF free and clear of
been made to Buyer hereunder. Buyer
s Contract pursuant to BNSF's failure to
NSF's mortgages, and the subsequent
lase Price for same under this Section
back at fair market value.
Section 13. Authority. Buyer warrants and affirms that it has!the necessary authority to enter into this
Contract and that all of the obligations hereunder are enforceable and legally binding on Buyer and its
successors. Buyer represents and warrants to BNSF that it is a municipality formed under the laws of the
State of Montana, validly existing and in good standing under applicable law. The person executing this
Contract on behalf of the Buyer warrants and affirms that he or she is fully authorized to do so for and on
behalf of Buyer.
Section 14. Notices.
14.1 All notices and other communications under this Contract shall be in writing and deemed
properly served if delivered by hand to the party addressed or, if m9liled, when received by the United States
Postal Service in registered or certified mail, postage prepaid, return receipt required, or, if sent by a national
overnight service, when received by the carrier service in a prepaid mailer, addressed as follows:
BNSF: BNSF Railway Company
2650 Lou Menk Drive, MOB-2
Fort Worth, TX 76131-2830
Attn: Director Real Estate
With copy to: Jones Lang LaSalle Brokerage, Inc.
2650 Lou Menk Drive, MOB-2
Fort Worth, TX 76131-2830
Attn: Vice President Portfolio Management
Buyer: City of Kalispell
201 First Ave E
Kalispell, MT 59901
Attn: City Manager
14.2 Either party hereto may change the address or addressee to which notices are to be given
by providing written notice of the change to the other party without !need of amendment to this Contract.
Section 15. Survival of Rights and Obligations. The provisions of Sections 6-11 of this Contract
BNSF - Purchase and Sale Contract
City of Kalispell, MT j
Page 11
I
shall survive Closing and shall not be merged into the Deed or qIny other document delivered at Closing.
The provisions of Section 13 of this Contract shall survive Closing for a period of one year and shall not be
merged into the Deed or any other document delivered at Closing. Buyer's indemnification obligations set
forth in this Contract shall survive termination of this Contract{ Nothing in this section shall alter any
requirement in any other Section of this Contract for the provisions of such section to be incorporated into
the Deed or any other document delivered as Closing.
Section 16. Real Estate Commissions. If any real estate broker or agent can establish a valid claim
for commission or other compensation as a result of Buyer having used their services in connection with
the grant of the Property, all such commission or other compensation shall be borne by Buyer. BNSF shall
not be liable for any real estate commissions or finder's fees to any party with respect to the sale of the
Property, except amounts due to Jones Lang LaSalle Brokerage, Inc. ("Broker") pursuant to a separate
agreement. Buyer acknowledges that Broker has advised, and hereby advises, Buyer that Broker is acting
as such on behalf of BNSF, with the duty to represent BNSF's interest, and Broker is not the agent of Buyer.
If a policy of title insurance is to be obtained, Buyer should obtain a commitment for title insurance which
should be examined prior to closing by an attorney of Buyer's choice. Prior to the execution of this Contract,
Broker has advised and hereby advises the principals of this tra , saction, that this Contract is binding on
them, and the principals hereby acknowledge that they have been so advised. Broker has no authority to
execute any document on behalf of BNSF, make representations! on behalf of BNSF or bind BNSF in any
manner.
Section 17. Successors and Assigns. Wherever referred tolherein, the term Buyer shall imply, mean
and apply to Buyer, its successors, assigns, heirs, executors, administrators, or designees, who shall be
severally and collectively liable for any and all performance hereunder. Wherever referred to herein, the
term BNSF shall imply, mean and apply to BNSF, its successors, assigns, heirs, executors, administrators,
or designees, who shall be severally and collectively liable for any and all performance hereunder.
Section 18. Tax Deferred Exchange. BNSF may assign its frights (but not its obligations) under this
Contract to Goldfinch Exchange Company LLC ("Goldfinch"), an exchange intermediary, in order for BNSF
to effect an exchange under Section 1031 of the Internal Revenue Code. In such event, BNSF shall provide
Buyer with a Notice of Assignment, in the form attached hereto as Exhibit D, and Buyer shall execute an
acknowledgement of receipt of such notice. Buyer may also assign its rights (but not its obligations) under
this Contract to an exchange intermediary in order for Buyer to effect an exchange under Section 1031 of
the Internal Revenue Code.
Section 19. Governing Law. This Contract shall be governed by and construed in accordance with the
internal laws of the State in which the majority of the Property is Iodated, without reference to the conflicts of
laws or choice of law provisions thereof. BNSF acknowledges that Buyer is a governmental entity that is subject
to the laws of the State of Montana and particularly to the Montana Constitution Article II, Part 11 Section 9
regarding the Public's Right to Know.
Section 20. ARBITRATION.
20.1 IF AT ANY TIME A QUESTION OR CONTROVRSY SHALL ARISE BETWEEN THE
PARTIES HERETO IN CONNECTION WITH THIS CONTRACT UPON WHICH THE PARTIES CANNOT
AGREE, SUCH QUESTION OR CONTROVERSY SHALL BE SUBMITTED TO AND SETTLED BY
BINDING ARBITRATION. UNLESS OTHER PROCEDURES ARE AGREED TO BY THE PARTIES IN
WRITING, ARBITRATION BETWEEN THE PARTIES PURSUANT TO THIS SECTION 20 SHALL BE
GOVERNED BY THE RULES AND PROCEDURES SET FORTH IN THIS SECTION 20.
20.2 IF THE PARTIES TO THE DISPUTE ARE ABLE TO AGREE UPON A SINGLE
COMPETENT AND DISINTERESTED ARBITRATOR WITHIN TWENTY (20) DAYS AFTER WRITTEN
NOTICE BY ONE PARTY OF ITS DESIRE FOR ARBITRATION TO THE OTHER PARTY, THEN THE
QUESTION OR CONTROVERSY SHALL BE SUBMITTED TO AND SETTLED BY THAT SINGLE
ARBITRATOR. OTHERWISE, ANY PARTY (THE "NOTIFYINGI PARTY") MAY NOTIFY THE OTHER
I
BNSF - Purchase and Sale Contract
City of Kalispell, MT
Page 12
i
PARTY (THE "NOTICED PARTY") IN WRITING OF ITS
NOMINATING ONE ARBITRATOR. WITHIN TWENTY (20) DA
THE NOTICED PARTY SHALL APPOINT AN ARBITRATOR Al
WRITING OF SUCH APPOINTMENT. SHOULD THE NOTICE
DAYS AFTER RECEIPT OF SAID NOTICE TO NAME ITS ARBI
APPOINTED BY THE AMERICAN ARBITRATION ASSOCIAT
EITHER PARTY AFTER TEN (10) DAYS' WRITTEN NOTICE
ARBITRATORS SO CHOSEN SHALL SELECT ONE ADDITION
BOARD. IF THE ARBITRATORS SO CHOSEN FAIL 1
ARBITRATOR, THE SAME SHALL, UPON APPLICATION OF A
IN THE MANNER HERETOFORE STATED.
ZEQUEST FOR ARBITRATION AND
S AFTER RECEIPT OF SAID NOTICE,
D NOTIFY THE NOTIFYING PARTY IN
) PARTY FAIL WITHIN TWENTY (20)
RATOR, SAID ARBITRATOR MAY BE
)N ("AAA") UPON APPLICATION BY
TO THE OTHER PARTY. THE TWO
kL ARBITRATOR TO COMPLETE THE
) AGREE UPON AN ADDITIONAL
DARTY, BE APPOINTED BY SAID AAA
20.3 UPON SELECTION OF THE ARBITRATOR(S),1 SAID ARBITRATOR(S) SHALL, WITH
REASONABLE DILIGENCE, DETERMINE THE QUESTIONS gI S DISCLOSED IN SAID NOTICE OF
ARBITRATION, SHALL GIVE THE PARTIES REASONABLE NOTICE OF THE TIME AND PLACE (OF
WHICH THE ARBITRATOR(S) SHALL BE THE JUDGE) OF HEARING EVIDENCE AND ARGUMENT,
MAY TAKE SUCH EVIDENCE AS THE ARBITRATOR(S) SHALL DEEM REASONABLE OR AS EITHER
PARTY MAY SUBMIT WITH WITNESSES REQUIRED TO BE SWORN, AND HEAR ARGUMENTS OF
COUNSEL OR OTHERS. IF AN ARBITRATOR DECLINES OR FAILS TO ACT, THE PARTY (OR
PARTIES IN THE CASE OF A SINGLE ARBITRATOR) BY WH6M THE ARBITRATOR WAS CHOSEN
OR THE AAA SHALL APPOINT ANOTHER TO ACT IN THE ARBITRATOR'S PLACE.
20.4 AFTER CONSIDERING ALL EVIDENCE, TE
SINGLE ARBITRATOR OR THE MAJORITY OF SAID BOARD (
STATE SUCH DECISION OR AWARD AND THE REASONING
WRITING WHICH SHALL BE FINAL, BINDING, AND CON(
ARBITRATION WHEN DELIVERED TO THEM. THE AWARD
MAY BE ENTERED AS A JUDGMENT IN ANY COURT HA
ENFORCED AS BETWEEN THE PARTIES WITHOUT FURTH[
SAME AS ENTERED BY THE COURT AT THE CONCLUSIC
WHICH NO APPEAL WAS TAKEN. UNTIL THE ARBITRATOR(;
OR AWARD UPON ANY QUESTION SUBMITTED FOR ARBITR
CONTRACT SHALL CONTINUE IN THE MANNER AND FORD
SUCH QUESTION. AFTER DELIVERY OF SAID FIRST DECISIi
FORTHWITH COMPLY WITH SAID FIRST DECISION OR AWAI
IT.
3TIMONY AND ARGUMENTS, SAID
F ARBITRATORS SHALL PROMPTLY
FOR SUCH DECISION OR AWARD IN
LUSIVE ON ALL PARTIES TO THE
tENDERED BY THE ARBITRATOR(S)
FING JURISDICTION THEREOF AND
R EVIDENTIARY PROCEEDING, THE
N OF A JUDICIAL PROCEEDING IN
) SHALL ISSUE THE FIRST DECISION
kTION, PERFORMANCE UNDER THIS
EXISTING PRIOR TO THE RISE OF
IN OR AWARD, EACH PARTY SHALL
;D IMMEDIATELY AFTER RECEIVING
i
20.5 EACH PARTY TO THE ARBITRATION SHALL'PAY ALL COMPENSATION, COSTS,
AND EXPENSES OF THE ARBITRATOR APPOINTED ON ITS BEHALF AND ALL FEES AND
EXPENSES OF ITS OWN WITNESSES, EXHIBITS, AND COUNSEL. THE COMPENSATION, COST,
AND EXPENSES OF THE SINGLE ARBITRATOR OR THE ADDITIONAL ARBITRATOR IN THE BOARD
OF ARBITRATORS SHALL BE PAID EQUALLY BY BNSF AND iBUYER.
20.6 THE PARTIES MAY OBTAIN DISCOVERY AND OFFER EVIDENCE IN ACCORDANCE
WITH THE FEDERAL RULES OF CIVIL PROCEDURE RULES, 26 - 37, AND FEDERAL RULES OF
EVIDENCE, AS EACH MAY BE AMENDED FROM TIME TO TIME.
20.7 INTEREST COMPUTED ANNUALLY, AT A RATE EQUAL TO THE PRIME RATE PLUS
TWO (2) PERCENTAGE POINTS, SHALL BE APPLIED TO ANY AND ALL ARBITRATOR'S AWARDS
REQUIRING THE PAYMENT OF MONEY AND SHALL BE CALICULATED FROM THIRTY (30) DAYS
FOLLOWING THE DATE OF THE APPLICABLE ARBITRATION DECISION. THE TERM "PRIME RATE. -
SHALL MEAN THE MINIMUM COMMERCIAL LENDING RATE CHARGED BY BANKS TO THEIR MOST
CREDIT -WORTHY CUSTOMERS FOR SHORT-TERM LOANS, bS PUBLISHED DAILY IN THE WALL
STREET JOURNAL.
BNSF - Purchase and Sale Contract
City of Kalispell, MT
Page 13
Section 21. Section Headings. The titles of sections and subsections herein have been inserted as a
matter of convenience of reference only and shall not control or a i ect the meaning or construction of any of
the terms or provisions herein.
Section 22. Effect of Waiver. Any waiver by BNSF or failure of BNSF to insist upon full and complete
performance of Buyer's obligations set forth herein shall not constitute a waiver or release of BNSF's right
to insist upon full and complete performance of any other obligations herein, or a waiver or release of
BNSF's right to insist upon full and complete performance of the obligations that were waived or not
enforced for periods prior to, or following, the waiver or failure to irisist upon full and complete performance.
Section 23. Amendments. No amendment to, or waiver of any provision of, this Contract shall be binding
on any of the parties hereto unless such amendment or waiver is in writing and, if an amendment, is executed
by both parties, and if a waiver, is executed by the party against whom enforcement of such waiver is sought.
Section 24. Time of Essence. Time is of the essence in the performance of this Contract.
Section 25. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the
terms of this Contract, the prevailing party shall be entitled to recover all costs and expenses incurred by it
in connection therewith, including its reasonable attorneys' fees; costs and necessary disbursements in
addition to any other relief to which it may be entitled.
Section 26. Construction. BNSF AND BUYER ACKNOWLEDGE THAT EACH PARTY AND, IF IT
SO CHOOSES, ITS COUNSEL, HAVE REVIEWED AND REVISED THIS CONTRACT AND THAT THE
NORMAL RULE OF CONSTRUCTION TO THE EFFECT THAT ANY AMBIGUITIES ARE TO BE
RESOLVED AGAINST THE DRAFTING PARTY WILL NOT BE EMPLOYED IN THE INTERPRETATION
OF THIS CONTRACT OR ANY AMENDMENTS OR EXHIBITS HERETO.
I
Section 27. Severability. If any provision of this Contract is held to be illegal, invalid or unenforceable
under present or future laws, such provision shall be fully severaple and this Contract shall be construed
and enforced as if such illegal, invalid or unenforceable provision) is not a part hereof, and the remaining
provisions hereof shall remain in full force and effect. In lieu of any ,illegal, invalid or unenforceable provision
herein, there shall be added automatically as._a part of this Cont fact a provision as similar in its terms to
such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
Section 28. Disclosures for Tax Reporting. Notwithstandingi any provision to the contrary herein, any
party (and each employee, representative, or other agent of such party) may disclose to any and all persons,
without limitation of any kind, such party's U.S. federal income tax treatment and the U.S. federal income tax
structure of the transactions contemplated by this Contract and any other agreement related thereto and all
materials of any kind (including opinions or other tax analyses) that are provided to the taxpayer relating to
such treatment and tax structure.
Section 29. Entire Agreement. This Contract, together with the Right of Entry Agreement (if executed),
contains the entire agreement of the parties hereto with respect to the Property and any other prior
understandings or agreements are merged herein and no rep iesentations, inducements, promises or
agreements, oral or otherwise, between the parties not embodied herein or incorporated herein by reference
shall be of any force or effect.
Section 30. Counterparts. To facilitate execution, this Contract may be executed in as many
counterparts as may be convenient or required. It shall not be necessary that the signature or
acknowledgement of, or on behalf of, each party, or that the signature of all persons required to bind any
party or the acknowledgment of such party, appear on each counterpart. All counterparts shall collectively
constitute a single instrument. It shall not be necessary in making proof of this Contract to produce or
account for more than a single counterpart containing the respective signatures of, or on behalf of, and the
respective acknowledgments of, each of the parties hereto. Any signature or acknowledgment page to any
counterpart may be detached from such counterpart without impairing the legal effect of the signatures or
BNSF - Purchase and Sale Contract
City of Kalispell, MT
Page 14
acknowledgments thereon and thereafter attached to another counterpart identical thereto except having
attached to it additional signature or acknowledgment pages.
Section 31. Miscellaneous.
31.1 Buyer may not assign its interest in this Contractl'or the Right of Entry Agreement without
BNSF's prior written consent. The provisions of this Contract and, to the extent executed, the Right of Entry
Agreement, shall bind BNSF, the Buyer, and their heirs, executors, administrators, successors and assigns
and shall and inure to the benefit of BNSF, the Buyer and their heirs, executors, administrators, permitted
successors and assigns. If Buyer is more than one person o� entity, Buyer's obligations under this
Agreement and, to the extent executed, the Right of Entry Agreement, shall be joint and several.
i
31.2 BNSF is not a foreign person as the term is used arid defined in Section 1445 of the Internal
Revenue Code of 1986, as amended and the regulations promulgated thereunder. BNSF shall, upon
request of Buyer, complete an affidavit to this effect and deliver it to Buyer on or before closing of said sale.
Section 32. Processing Fee. Buyer acknowledges that a material consideration for this Contract,
without which it would not be made, is the agreement between Buyer and BNSF, that Buyer shall pay upon
return of this Contract signed by Buyer to BNSF's Broker a processing fee in the amount of $2,500.00 over
and above the agreed upon Purchase Price. Said fee shall be made payable to BNSF Railway Company
by a separate check.
[Signature page follows]
BNSF - Purchase and Sale Contract
City of Kalispell, MT
Page 15
Accepted and agreed to by the parties as of the EffectiveDate.
i
BNSF:
BNSF RAILV /A CiOMPAN , Delaware corporation
By:
Name: Dean Fe iris
Title: Director Right of Way
and Real Estate Management
BUYER:
CITY OF KALISPELL, a municipality formed under the laws
of the State of Montana —
By: _
Print
Title:
Attachments:
Exhibit A - Depiction of Property
Exhibit A-1 — Survey/Description of Property
Exhibit B - Quitclaim Deed
Exhibit C — Bill of Sale
Exhibit D — Notice of Assignment
BNSF - Purchase and Sale Contract
City of Kalispell, MT
Page 16
EXHIBIT A
Purchase and Sale Contract
Exhibit A
EXHIBIT A-1
SURVEY/DESCRIPTION OF PROPERTY
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Purchase and Sale Contract
Exhibit A-1
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EXHIBIT B
QUITCLAIM DEED
!
THIS QUITCLAIM DEED ("Deed"), made this day of , 2024, by and
between BNSF RAILWAY COMPANY, a Delaware corporation ("BNSF"), and CITY OF KALISPELL, a
municipality formed under the laws of the State of Montana, with its principal office at 201 First Ave E
Kalispell, MT 59901 ("Grantee"). '
WITNESSETH: That BNSF, for TEN AND NO/100 DOLLARS ($10.00) and other good and
valuable consideration, to it in hand paid, the receipt of which i is hereby acknowledged, does hereby
REMISE, RELEASE and FOREVER QUITCLAIM, without any covenants of warranty whatsoever and
without recourse to BNSF, its successors and assigns, unto Grantee, its successors and assigns, all of its
right, title and interest, if any, in real estate and its rights under any leases related to such real estate, if
any, subject however to all existing interests, including but not limited to all reservations, rights -of -way,
leases, easements and other encumbrances, of record or otherwise, located in the County of Flathead,
State of Montana, more particularly described on the attached Exhibit A which is fully incorporated herein
by reference (the "Property").
I
RESERVING, unto BNSF, all coal, oil, gas, casing -head !gas, and all ores and minerals of every
kind and nature including sand and gravel underlying the surface of the Property, together with the full right,
privilege, and license at any and all times to explore, or drill for and to protect, conserve, mine, take, remove,
and market any and all such products in any manner which will not damage structures on the surface of the
Property, together with the right of access at all times to exercise said rights; provided, however, BNSF's
exercise of this reservation shall not permanently damage improvements placed on the Property by Grantee
or its successors and shall not unduly burden the use of the Property for non -industrial uses. In no event
will BNSF have the right to conduct strip mining activities on the Property.
Grantee covenants and agrees that the Property shall be used solely for non-residential purposes,
that the groundwater will not be used for drinking water or irriga,iion purposes, and that no wells will be
installed on the Property without BNSF's written consent.
Grantee has been allowed to make an inspection of the Prc
use of the Property. Based upon this inspection and knowledge,
Property and GRANTEE SPECIFICALLY ACKNOWLEDGES
QUITCLAIMED ON AN "AS -IS WITH ALL FAULTS" BASIS
LATENT DEFECTS, INCLUDING THOSE RELATING TO THE El
PROPERTY, AND THAT GRANTEE IS NOT RELYING
WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WHA
MATTERS CONCERNING THE PROPERTY, including, without
Property; zoning status; tax consequences of this transaction; uti
valuation; compliance by the Property with Environmental Laws
ordinances, decrees, regulations and other requirements applicat
Hazardous Substances (defined below), wetlands, asbestos,
containing structures, urea formaldehyde, or other environment
under, or in proximity to the Property; the condition or existence of
structures or improvements, including tanks and transformers in, o
title to the Property; and any leases, easements, reservations, pei
agreements, affecting the Property. BNSF EXPRESSLY DISCL
PROPERTY OR APPURTENANCES THERETO, INCLUDING, V
AS TO TITLE, MERCHANTABILITY, HABITABILITY, FITNESS P
CONFORMITY OF THE PROPERTY TO ITS INTENDED USE.
)erty and has knowledge as to the past
'rantee is aware of the condition of the
THAT THE PROPERTY IS BEING
VITH ANY AND ALL PATENT AND
VIRONMENTAL CONDITION OF THE
IN ANY REPRESENTATIONS OR
'SOEVER FROM BNSF AS TO ANY
mitation, the physical condition of the
ies; operating history or projections or
iefined below) or other laws, statutes,
to the Property; the presence of any
aad, lead -based paint or other lead
ly sensitive building materials in, on,
iy of the above ground or underground
or under the Property; the condition of
sits, orders, licenses, or other rights or
UMS ANY WARRANTIES FOR THE
THOUT LIMITATION, WARRANTIES
RANY PARTICULAR PURPOSE, OR
Grantee acknowledges and represents to BNSF that Grantee is aware of the risk that Hazardous
Substances may be present on, under, in or about the Property ;and that Grantee has conducted such
Purchase and Sale Contract
Exhibit B — Page 1
I
!
investigations of the Property, including but not limited to, thei, physical and environmental conditions
thereof, as Grantee deemed necessary to satisfy itself as to the condition of the Property, and Grantee is
relying and will rely solely upon same and not upon any information provided by or on behalf of BNSF or
its agents or employees with respect thereto. GRANTEE ASSUMES THE RISK THAT ADVERSE
MATTERS MAY NOT HAVE BEEN REVEALED BY GRANTEE'S INVESTIGATIONS, AND GRANTEE
SHALL INDEMNIFY, HOLD HARMLESS AND HEREBY WAIVES, RELEASES AND DISCHARGES
FOREVER BNSF (AND BNSF'S AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS,
EMPLOYEES, AGENTS, LICENSEES AND INVITEES) FROM ANY AND ALL PRESENT OR FUTURE,
KNOWN OR UNKNOWN, CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING, BUT NOT LIMITED
TO, THOSE IN CONTRACT, TORT AND STRICT LIABILITY), DAMAGES (INCLUDING, WITHOUT
LIMITATION, CONSEQUENTIAL AND PUNITIVE), LOSSES (HEREIN DEFINED), INJURIES,
LIABILITIES, COSTS (INCLUDING, BUT NOT LIMITED TO, FINES, PENALTIES, COURT COSTS AND
ATTORNEYS' FEES) ARISING FROM OR IN ANY WAY RELATED TO (1) ANY LATENT OR PATENT
CONDITIONS OF THE PROPERTY, (11) ANY BODILY INJURY OR DEATH OR LOSS OR DAMAGE TO
THE PROPERTY OF ANY PERSON OR PERSONS WHOMEVER, INCLUDING THE PARTIES HERETO,
IN ANY MANNER ARISING FROM OR GROWING OUT OF THE ACTS OR OMISSIONS, NEGLIGENT
OR OTHERWISE, OF GRANTEE OR ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES,
AGENTS, LICENSEES AND INVITEES IN CONNECTION WITH THE ENTRY UPON, OCCUPATION OR
USE OF THE PROPERTY, AND/OR (111) ANY ALLEGED OR ACTUAL PRESENCE, USE, STORAGE,
GENERATION, MANUFACTURE, TRANSPORT, RELEASE, t,EAK, SPILL, DISPOSAL OR OTHER
HANDLING OF ANY HAZARDOUS SUBSTANCES IN, ON, UNDER OR ABOUT THE PROPERTY. As
used in this paragraph, the term "Losses" shall include without limitation (a) the cost of any investigation,
removal, remedial or other response action that is required by any Environmental Law, that is required by
judicial order or by order of or agreement with any governmental a6thority, or that is necessary or otherwise
is reasonable under the circumstances, (b) capital expenditures i
inecessary to cause BNSF's remaining
property or the operations or business of BNSF on its remaining property to be in compliance with the
requirements of any Environmental Law, and (c) costs imposed under any Environmental Law enacted after
the date of this Deed. As used herein, the term "Environmental Law" means any federal, state or local
statute, regulation, code, rule, ordinance, order, judgment, decree, injunction or common law pertaining in
any way to the protection of human health, occupational safety, natural resources, plant or animal life or
the environment, including without limitation, principles of common law and equity, the Resource
Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability
Act, the Toxic Substances Control Act, and any similar or comparable state or local law. As used herein,
the term "Hazardous Substance" means any hazardous, toxic, radioactive or infectious substance,
material, contaminant or waste as defined, listed or regulated under any Environmental Law, and includes
without limitation, petroleum, oil and any of its fractions. The rights of BNSF under this paragraph shall be
in addition to and not in lieu of any other rights or remedies to which it may be entitled under this Deed, the
Contract or otherwise. This indemnity specifically includes the obligation of Grantee to remove, close,
remediate, reimburse or take other actions requested or required ky any governmental agency concerning
any Hazardous Substances or contaminants on the Property.
Grantee acknowledges and agrees that in no event shall this Deed or the Contract be construed to
create a joint enterprise for the use or operation of the Property.
Grantee further acknowledges that a material consideration for this conveyance, without which it
would not be made, is the agreement by Grantee, for itself and for its successors and assigns, that BNSF,
its predecessors, successors, and assigns shall be in no manner responsible to Grantee, any subsequent
owner, purchaser, or any person for any claims, demands, damages, causes of action, including loss of
access, or suits regarding the quiet and peaceable possession ol. the Property, title thereto, or condition
thereof. Grantee acknowledges and affirms that BNSF may not hold fee simple title or any other particular
interest in the Property, and that BNSF's interest in the Property,! if any, may rise only to the level of an
easement for railroad purposes. GRANTEE IS WILLING TO ACCEPT BNSF'S TITLE TO THE
PROPERTY, IF ANY, ON THIS BASIS AND EXPRESSLY RELEASES BNSF, ITS SUCCESSORS AND
ASSIGNS FROM ANY CLAIMS THAT GRANTEE OR ITS SUCCESSORS MAY HAVE AS A RESULT
OF THE CONVEYANCE TO BE MADE PURSUANT TO THIS DEED. IN LIGHT OF BNSF'S
DISCLOSURE THAT IT MAY NOT HOLD FEE SIMPLE TITLE 'OR ANY OTHER INTEREST IN THE
Purchase and Sale Contract
Exhibit B — Page 2
i
I
PROPERTY, GRANTEE SHALL INDEMNIFY, DEFEND AND HOLD BNSF HARMLESS FROM ANY
SUIT OR CLAIM FOR DAMAGES, PUNITIVE OR OTHERWISE, EXPENSES, ATTORNEYS' FEES, OR
CIVIL PENALTIES THAT MAY BE IMPOSED ON BNSF AS THE RESULT OF ANY PERSON OR ENTITY
CLAIMING AN INTEREST IN THE PROPERTY OR CLAIMING T�AT BNSF DID NOT HAVE THE RIGHT
TO TRANSFER THE PROPERTY TO GRANTEE.
The covenants and agreements set forth herein above, shall be binding upon Grantee and its heirs,
successors and assigns, and shall be covenants running with the land benefitting BNSF and its heirs,
successors and assigns.
TO HAVE AND TO HOLD the Property unto the said Grarjtee, its successors and assigns, forever.
[Signature pages below]
Purchase and Sale Contract
Exhibit B — Page 3
i
BNSF'S SIGNATURE PAGE
IN WITNESS WHEREOF, BNSF has caused this instrument to be signed by its authorized representative,
attested by its Assistant Secretary, and its corporate seal to be ;affixed hereto on the day and year first
above written.
BNSF:
BNSF RAILWAY COMPANY,
a Delaware corporation
By:
Print Name:
Title:
STATE OF TEXAS )
) ss.
COUNTY OF TARRANT )
On this day of 2024, before me appeared
to me personally known, who being by me duly
sworn, did say that he or she is i
I of BNSF
RAILWAY COMPANY, a Delaware corporation, that the seal affixed to the foregoing instrument is the
corporate seal of said corporation and that said instrument was signed and sealed in behalf of said
corporation by authority of its Board ; of Directors and said
acknowledged said instrument to be the free act
and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand',and affixed my notarial seal the day and
year last above written.
Notary Public
My Commission Expires:
i
Purchase and Sale Contract
Exhibit B — Page 4
i
GRANTEE'S SIGNATURE PAGE
i
Accepted:
GRANTEE:
CITY OF KALISPELL, a municipality formed under the laws
of the State of Montana
By:
Print Name:
Title:
STATE OF )
) ss.
COUNTY OF )
On this day of 2024, before me appeared
to me personally known, who being by me duly sworn, did say that he or
she is of CITY OF KALISPELL, a municipality formed under the laws of the
State of Montana, and that said instrument was signed in behalf of said municipality by authority of
its or other applicable governing body an � said municipality acknowledged said
instrument to be the duly authorized free act and deed of said mu icipality.
IN TESTIMONY WHEREOF, I have hereunto set my hand*d affixed my notarial seal the day and
year last above written.
Notary Public
My Commission Expires:
i
[Exhibit A to the Quitclaim Deed (Survey/Description of Property — Exhibit A-1 to the Contract) to be
attached prior to final execution by the parties at Closing] i
Purchase and Sale Contract
Exhibit B — Page 5
EXHIBIT A
Legal
TRACT 1
A PARCEL OF LAND CONTAINING FIVE PARCELS OF LAND AS DESCRIBED IN BOOK 200, PAGE
198; PARCEL 2 OF COS No. 18486; BOOK 35, PAGE 560; BOOK 351 PAGE 561; BOOK 35, PAGE 562
AND BOOK 35, PAGE 559 LOCATED IN NE1/4 AND NE1/4SE1/4 OF SECTION 13, T. 28 N., R. 22 W.
P.M. MONTANA, FLATHEAD COUNTY, DESCRIBED AS FOLLOWS:
COMMENCING FROM THE NE CORNER OF SAID SECTION 1
ALONG THE EAST LINE OF SAID SECTION 13 TO THE NORT
WAY; THENCE S76°03'07"W, 31.05 FEET ALONG THE NORTF
LINE TO THE WEST LINE OF SOUTH MERIDIAN ROAD BEING
THENCE S01 °01'39"W, 103.52 FEET ALONG THE WEST LINE
THE SOUTHERLY LINE OF BNSF RIGHT-OF-WAY; THENCE S
SOUTHERLY LINE OF BNSF RIGHT-OF-WAY LINE; THENCE /
LEFT HAVING A RADIUS OF 713.95 FEET, ARC LENGTH OF 1
86°28'28", CHORD BEARING OF S32°48'53"W AND CHORD DI
EASTERLY LINE OF BNSF RIGHT-OF-WAY; THENCE S10°25',
EASTERLY LINE BNSF RIGHT-OF-WAY TO THE NORTHWEST
LAKE ROAD; THENCE S32°51'23"W, 145.87 FEET ALONG THE
LINE OF SAID FOYS LAKE ROAD TO THE WESTERLY LINE O
N10°25'21"W, 2472.24 FEET ALONG THE WESTERLY LINE OF
ALONG A TANGENT CURVE TO THE RIGHT HAVING A RADIL
180.90 FEET; DELTA ANGLE OF 12044'02", CHORD BEARING
DISTANCE OF 180.53 FEET ALONG THE WESTERLY BNSF RI
A NON -TANGENT COMPOUND CURVE TO THE LEFT HAVING
LENGTH OF 662.93 FEET, DELTA ANGLE OF 69°13'33", CHOF
CHORD DISTANCE OF 623.34 FEET -ALONG THE SOUTHWES
WAY; THENCE S76°03'07"W, 319.97 FEET ALONG THE SOUTI
WAY TO THE SOUTHWEST CORNER OF SAID PARCEL 2; TF
ALONG THE WEST LINE OF SAID PARCEL 2 TO THE NW COF
N76°03'07"E, 1877.19 FEET ALONG THE NORTHERLY LINE OI
POINT OF BEGINNING OF SAID PARCEL CONTAINING 14.69 ,
Purchase and Sale Contract
Exhibit C — Page 1
; THENCE S01 °01'39"W, 46.95 FEET
IERLY LINE OF BNSF RIGHT-OF-
ERLY LINE OF BNSF RIGHT-OF-WAY
THE POINT OF BEGINNING:
;AID SOUTH MERIDIAN ROAD TO
'6°03'07"W, 358.82 FEET ALONG THE
LONG A TANGENT CURVE TO THE
)77.54 FEET, DELTA ANGLE OF
;TANCE OF 978.14 FEET ALONG THE
I"E, 2366.04 FEET ALONG THE
=RLY RIGHT-OF-WAY LINE OF FOYS
NORTHWESTERLY RIGHT-OF-WAY
BNSF RIGHT-OF-WAY; THENCE
BNSF RIGHT-OF-WAY; THENCE
3 OF 813.95 FEET, ARC LENGTH OF
)F N04°03'20"W AND CHORD
BHT -OF -WAY LINE; THENCE ALONG
A RADIUS OF 548.69 FEET; ARC
) BEARING OF N52°42'34"W AND
"ERLY LINE OF BNSF RIGHT-OF-
ERLY LINE OF BNSF RIGHT-OF-
ENCE N13°56'53"W, 100.00 FEET
VER OF SAID PARCEL 2; THENCE
BNSF RIGHT-OF-WAY TO THE
CRES.
EXHIBIT C
BILL OF SALE
BNSF RAILWAY COMPANY, a Delaware corporation ("B
Drive, GOB 3-W, Fort Worth, Texas 76131, in consideration of "
valuable consideration to it paid by CITY OF KALISPELL, a munii
of Montana ("Grantee"), with an address of with its principal offic
receipt whereof is hereby acknowledged, has quitclaimed, assign(
presents does hereby quitclaim, sell, assign, transfer and deliver
of warranty whatsoever and without recourse to BNSF, all of its i
improvements (including bridges, culverts, ballast and earthwork
Real Property (as defined below), together with all other objects I
(such improvements and other objects being referred to collective
used in the operation and maintenance of the rail corridor locate
the City of Kalispell in the County of Flathead, State of Montana
Grantee pursuant to that certain Quitclaim Deed of even date he
Exhibit A attached hereto ("Real Property"); provided that the P
rail, ties, spikes, tie plates, rail anchors, signaling and communica
equipment, signage, roundhouses, depots, and other support
whether or not same are deemed affixed to the Real Pro ert
SF"), with an address of 2301 Lou Menk
:n Dollars ($10.00) and other good and
pality formed under the laws of the State
at 201 First Ave E, Kalispell, MT 59901,
I, transferred and delivered and by these
nto the Grantee, without any covenants
Iht, title and interest, if any, in and to all
located on, or otherwise affixed to, the
cated on or affixed to the Real Property
as the "Personal Property"), presently
on or along the real property at or near
such real property being quitclaimed to
,with and more particularly described in
•sonal Property shall further include any
ions equipment, crossings and crossing
acilities, track materials and supplies,
p Y•
Notwithstanding the foregoing or anything contained herein to the contrary, however, to the extent
any items of Personal Property remaining on the Real Property are owned by any third party (e.g., crossing
equipment owned in whole or in part by a governmental authority), said interests shall not be conveyed
unto Grantee.
i
Grantee has fully examined and inspected the Personal P
and approved the same and all parts and appurtenances thereof.
BNSF has made no representations or warranties respecting i
Property. BNSF HEREBY DISCLAIMS ANY REPRESENT
EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
MATERIAL OR WORKMANSHIP OF THE PERSONAL PRO
PERSONAL PROPERTY TO ITS INTENDED USES OR THI
PERSONAL PROPERTY. BNSF SHALL NOT BE LIABLE TO
CONSEQUENTIAL DAMAGES (INCLUDING STRICT LIABILIT
DESIGN, CONDITION, QUALITY, SAFETY, MERCHANT,
PARTICULAR PURPOSE, OF THE PERSONAL PROPERT
PERSONAL PROPERTY TO ITS INTENDED USES. GR
PROPERTY IN "AS IS, WHERE IS" AND "WITH ALL FAULTS'
LIMITATIONS ON BNSF'S RIGHTS, INTEREST, AND TITLE TI
PERSONAL PROPERTY.
TO HAVE AND TO HOLD, together with all appu
successors and assigns, forever.
Purchase and Sale Contract
Exhibit C — Page 2
operty, and has in all respects accepted
Grantee acknowledges and agrees that
ie nature or condition of the Personal
►TION OR WARRANTY, WHETHER
DF THE PERSONAL PROPERTY, ITS
PURPOSE, THE QUALITY OF THE
'ERTY, THE CONFORMITY OF THE
QUALITY OF THE TITLE TO THE
IRANTEE FOR ANY INCIDENTAL OR
r IN TORT) WITH RESPECT TO THE
,BILITY OR FITNESS FOR ANY
' OR THE CONFORMITY OF THE
�NTEE ACCEPTS THE PERSONAL
CONDITION, AND SUBJECT TO ALL
THE PROPERTY COMPRISING THE
thereunto belonging to the Grantee, its
i
IN WITNESS WHEREOF, BNSF has caused this Bill of Sale to be signed by its duly authorized
officers this day of , 2024.
BNSF:
BNSF Railway Company, a Delaware Corporation
By:
Print Name:
Title:
Accepted:
GRANTEE:
i
CITY OF KALISPELL, a municipality formed under the laws
of the State of Montana
i
I
By:
Print Name:
Title:
[Exhibit A to the Bill of Sale (Survey/Description of Property — Exhibit A-1 to the Contract) to be attached
prior to final execution by the parties at Closing]
Purchase and Sale Contract
Exhibit C — Page 3
EXHIBIT A
Legal
TRACT 1
A PARCEL OF LAND CONTAINING FIVE PARCELS OF LAND AS DESCRIBED IN BOOK 200, PAGE
198; PARCEL 2 OF COS No. 18486; BOOK 35, PAGE 560; BOOK 35, PAGE 561; BOOK 35, PAGE 562
AND BOOK 35, PAGE 559 LOCATED IN NE1/4 AND NE1/4SE1/4 OF SECTION 13, T. 28 N., R. 22 W.
P.M. MONTANA, FLATHEAD COUNTY, DESCRIBED AS FOLLOWS:
COMMENCING FROM THE NE CORNER OF SAID SECTION 1:
ALONG THE EAST LINE OF SAID SECTION 13 TO THE NORTI
WAY; THENCE S76'03'07"W, 31.05 FEET ALONG THE NORTH
LINE TO THE WEST LINE OF SOUTH MERIDIAN ROAD BEING
THENCE S01 001'39"W, 103.52 FEET ALONG THE WEST LINE
THE SOUTHERLY LINE OF BNSF RIGHT-OF-WAY; THENCE S
SOUTHERLY LINE OF BNSF RIGHT-OF-WAY LINE; THENCE A
LEFT HAVING A RADIUS OF 713.95 FEET, ARC LENGTH OF 1
86-28-28", CHORD BEARING OF S32°48'53"WAND CHORD DI;
EASTERLY LINE OF BNSF RIGHT-OF-WAY; THENCE S10°262
EASTERLY LINE BNSF RIGHT-OF-WAY TO THE NORTHWEST
LAKE ROAD; THENCE S32°51'23"W, 145.87 FEET ALONG THE
LINE OF SAID FOYS LAKE ROAD TO THE WESTERLY LINE OI
N10°25'21"W, 2472.24 FEET ALONG THE WESTERLY LINE OF
ALONG A TANGENT CURVE TO THE RIGHT HAVING A RADIL
180.90 FEET; DELTA ANGLE OF 12°44'02", CHORD BEARING
DISTANCE OF 180.53 FEET ALONG THE WESTERLY BNSF RI
A NON -TANGENT COMPOUND CURVE TO THE LEFT HAVING
LENGTH OF 662.93 FEET, DELTA ANGLE OF 69°13'33", CHOR
CHORD DISTANCE OF 623.34 FEET ALONG THE SOUTHWES
WAY; THENCE S76°03'07"W, 319.97 FEET ALONG THE SOUTI
WAY TO THE SOUTHWEST CORNER OF SAID PARCEL 2; TH
ALONG THE WEST LINE OF SAID PARCEL 2 TO THE NW COF
N76°03'07"E, 1877.19 FEET ALONG THE NORTHERLY LINE OI
POINT OF BEGINNING OF SAID PARCEL CONTAINING 14.69 j
Purchase and Sale Contract
Exhibit D
; THENCE 301°01'39"W, 46.95 FEET
ERLY LINE OF BNSF RIGHT-OF-
=RLY LINE OF BNSF RIGHT-OF-WAY
THE POINT OF BEGINNING:
;AID SOUTH MERIDIAN ROAD TO
'6°03'07"W, 358.82 FEET ALONG THE
-ONG A TANGENT CURVE TO THE
177.54 FEET, DELTA ANGLE OF
;TANCE OF 978.14 FEET ALONG THE
VE, 2366.04 FEET ALONG THE
ERLY RIGHT-OF-WAY LINE OF FOYS
NORTHWESTERLY RIGHT-OF-WAY
BNSF RIGHT-OF-WAY; THENCE
BNSF RIGHT-OF-WAY; THENCE
3 OF 813.95 FEET, ARC LENGTH OF
)F N04°03'20"W AND CHORD
3HT-OF-WAY LINE; THENCE ALONG
A RADIUS OF 548.69 FEET; ARC
BEARING OF N52042'34"W AND
'ERLY LINE OF BNSF RIGHT-OF-
ERLY LINE OF BNSF RIGHT-OF-
=NCE N13°56'53"W, 100.00 FEET
NER OF SAID PARCEL 2; THENCE
BNSF RIGHT-OF-WAY TO THE
EXHIBIT D
Goldfinch Exchange Company LLC
A Delaware limited liability company
2001 Western Avenue, Suite 330
Seattle, WA 98121
425-6464020
206728--0935 fax
NOTICE OF ASSIGNMENT
TO: CITY OF KALISPELL, a municipality formed under the laws of the State of Montana,
and any assignees or exchange intermediaries of Buyer
You and BNSF Railway Company ("BNSF") have entered into that certain Purchase and Sale
Contract, dated , 2024 for the sale of the real property described therein. You
are hereby notified that BNSF has assigned its rights as BNSF, but not its obligations, to Goldfinch
Exchange Company LLC for the purpose of effecting a tax deferred exchange under Internal Revenue
Code Section 1031. This is an assignment of rights only and BNSF will deed the property directly to you.
ACKNOWLEDGED:
By:
Print me:
Title: aA yr
Purchase and Sale Contract
Exhibit D