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7. Buffalo Hill/Stillwater River Erosion Control ProjectFROM: Jane Howingt.on# City Managm SUBJECT: Kalispell Golf Association - Stillwater River Erosion Project MEETING DATE: February 7, 011 BACKGROUNDoL]I : The i afispell Golf Association I A) has expressed concern over the strearnbed erosion along the bank of the Stillwater River and the Buffalo Hill Golf Course. In the fall of 2010, the city agreed to designate an engineer of record in order that a comprehensive study of the streambed could be evaluated and, if needed, a capital improvement strategy developed. According to the Lease Agreement between the city and the KGA, capital improvements Hirst be incorporated into a capital protection program. The Lease Agreement further stipulates that, "in the event the KGA detenmines to expend its funds for infrastructure improvements that are on the capital protection program prior to that time scheduled and that are otherwise scheduled to be funded by the city, it may apply for a credit of those funds against its lease payment'}. ANALYSIS while the city and the KGA have met to discuss the development of the capital protection program, this requirement has not been completed. This means the proposed erosion repair project has not been identified} planned for, or programmed into any funding or budgetary process. Nor can the KGA apply for credit as per the Lease Agrecnzent. Since the KGA has insisted this erosion repair project trust be done this winter and cannot wait for the comprehensive erosion planmm�g process to be completed, the city and the KGA entered into a letter of agreement w1lich ussunt:ially holds the KGA liable for all costs associated with this project unless council approves the city }s financial participation. Respectively submitted, Jane Howington City Manager rr• 4Av 2,g2t4" ;ph•µ �'.V}.:r...; :.4� ':�'::--:-'-: ::': City of Kali*spell Post Office Box 1997 - Kalispell, Montana 59903 Telephone: 40 f.:.t!titi.:,}-:;::;R::.rr:,ti�;5: ;,-r`M.��.; :; rf ��.��-:.:' 1.;..•.ti� .s::::ti::h:-:-r.;;:�:.R�R>:ra�.4L-;; ;xr-,.r-,.. :•.:- .:.�-:..n..r-�o.�:os`•- .4-• .y f..,:,: �..L;.. � :�: �:'�:-:'. l:r.i ti:-7`., :, �1„. •�: �'i�"'' nf••``i:;: tivr: r.', �;'�' :G�'. i.: �-r,':r,✓ `•"l. ti'.'.rr .•ti � , `1.:� Si4 ,.Ft• r:Y= �R, ••.r:.. �� r'�r.�•". .�fL.ititi• �""^, _. � ti�:`:f•..r`f ..!'. .�.T.... ..".Fi'� tiY L -,...:a�`sY....•.�..�"'iiti f:?�.�,:::"."-�m.m,h•}.�.nr%:;er:i}:!.';r-':w..-.,.._.�->.�r5,:,:=--s..':i.:.: .n..t `'ra•.:r.�,:...:.e:::,..-,,..w 1.ei:r; ::,.•i::r January 18, 2011 Steve Dunfee General Manager Buffalo Hill Golf Club P.O. Box 1116 Kalispell, MT 59903 Letter of Understanding on Mitigation Efforts to Control Erosion on Buffalo Hill Golf Course Dear Steve: We have -net a number of times regarding a plan of erosion control on the city owned asset known as the Buffalo Hill Golf Cnimse. which is, le'a&ed by the Kalispell Golf Association. t the last couple of meetings a particular sense of urgency was expressed by the A to move forward with all possible haste because of the belief that the Stillwater River will be unusually destructive this spiing season. l have hnen re.-hictant to he so hasty in our approach that we hegira incurring costs prior to doing the appropriate study and establishing by City Council action, a budgeted funding source. To this end l believe at our meeting last week that we agreed to move forward with the design and permitting of gpfa.cific erosion control near the 71h hole with the KGA understanding that it would pay these costs up front and further understanding that such costs were not yet approved by the Kalispell City Council which has the discretion to reject the project. In such a case, the KGA would not he. retimbu rsed for its outlay, I believe that the Poll owin g are essential facts relevant to our understanding: 1. The City IN tht owner of Lhe Buffalo Hills Golf Course which is leased and managed by the Kalispell Golf Association, . The lease agreement between the parties controls the manner m which funds are expended on the golf course. The agreement specifically addresses the expenditure of funds for capital improvements on the course and calls for the cooperative establishment Of a capital asset protection plan by the City and. the KGA.. .; 3. The agreement further determines that capital improvements that become a paft of die capital asset protection plan will he funded by the City pursuant only to a schedule agreed upon by the City. The KGA may choose to go forward with a capital improvement on p p the capital asset protection plan ahead of its scheduled date, but would be obligated to pay these costs up front and apply to the City for reimbursement. . r-si n control on the Stillwater River may be afacet l'' the capital protection plan rich i stillin the process of formation s essential studies still need to be completed. The specific elements oz erosion control are not yet formally established within the capital asset protection plan. J . The City has entered into a contract with an cnginccring `irnz to be thrz; CII IO Qt�lf or i uc f-d for the erosion control project for the Stillwater River flowing along the golf course. The manner of study has been outlined by the engineer although n commitment has been made yet, by the City, re arins the pay cnt or thesc services. Funding so rccs u- being explored. . Thu KGA zimN to have the engineer or .record bccrin the sLudy and perm.ft application process immediat� { and agrees that �t � ` . liable or and � gall pad; the necessm, Fees for these services. The t Manager willrig this matter before the ity Council on the fifst meeting In cbi q, 2011 to ,icck approval to enter Into a specific funding agreement on the project with. the,KG going forward from that date. The City Council has the discretion to approve or disapprove such contractual arrangement, In the c cllt o disapproval, the KGA would btsolely Habic for all costs of the project, includina the Fees of the it ' n inear or r cord, If you agree with the, facts stated above, plea -se lan and return this letter or understanding t nee and the en inc r of record will be autbori cd to procced. t City Manager APPROVED BY THE KALISPELL GOLF ASSOCIATION D 16 lq -- — _rk `� ' � _ r � �� _ � � ■S � '� �i �;� �y ai�'''�"�'J � ; y icy ■ L e F y a mr ' .r r 13 k jr I � �.. ' , • � `� _ ,y x � � _ � 'ill "■"� �: _w4AML S Aa w� c t , z� 4• J �. • Rapidly Eroding Bank • Bank is keystone for holes 6,, 71 13,1 14 & 15 • Construction period is limited : 3/1— 3/22 • Proposed project is Phase I of multi -phased project is Approximately 3 week schedule for permit R - F r 4:e I ' M •4- - �.. 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F � ,, ,A € : -.- p '� , . ,:. t •.{ , + � � �i I � 'y Al _`.�1� ' s "i '�' i . , i .. 1• .�•� � _ • .:r f °,. e d�-. ,, €-r .°, Ao W °'�`-• 'y ,..I t r , �s: - 1,4' "• - �. .- •... ;c}� 4 'rY ' .. 4jl 1 AA g'. .f ` , P I , I , ! _ ,. 's, , , � ';� - t•; - Ire �1 1 ''r ' tif�` �,� ,� _ S 11 ash • � I ° r • I USGS 12365700 20M LP 70- Ld 15M M I IODO 0 A 4,b 4.b 4b L Lq) ISt A A A N� NIP "Ip\rl %atj%j5l utal ly Soil Lifts: • Soil lifts are a bioengineering structure constructed of multi -layered erosion control fabric that encapsulates soil. • Lifts are stacked one on top of another with rooted cuttings, dormant cuttings or containerized plants between the layers. • Soil lifts have been very successful in the Lower Clark Fork and Big Hole river drainages and provide excellent bank strength, eMeciallinn high velocity streams and floods. • When applied correctly, the soil lifts provide a good growing medium for many riparian species. Concerns and Recommendations • It is imperative that these structures be well connected to ground water, with access to the capillary fringe. • the soil lifts should be filled with fine textured soil with a good water -holding capacity. 0 a 0 Soil lifts are often set too high on a bank with poor connectivity to soil moisture. Plants and cuttings should be placed at an upward angle. VVe consider soil lifts one of the best techniques for bank stabilization and re-ve�etation* -► 1 fa .. `mot, zr,a Y.•��RS. -_ � '� -' _' �. ,. •f1� - 7 s+ 1 ti S r " 5 F qp ti. ki, v; a a ��.�. tom, � a` _ _ ., � - i ■� �_ ' . r•, '}IS 4 r pr, , — �: .. '�ySx.- 5---�•' +tip' tit ar ip Tr y!6.. — --ow If vo lw r F i. �• I /� fin. . _ .. J ' oil- M OF or s ,. , ► w r `�� , ti^ r t' . -' v+F �' � ;F .,�, • r ,� . ,r�, , �,. � -; a ,� jol EL ip r �. FIRM• . —1 1 ur f Af Pik lam A -pow All r 6 ANA? 41 45 jr INA mmc it op 3L • Today 1-11-ll • Site investigation/Surveying 2 weeks 1-25-11 • Is Stabilization Design 2 weeks 2-9-11 Permitting (3 weeks) • Construction start 3-7-11 4W IL too r W40. -1 IF IL Alf men** Lege Riprap Rehabiliteffio-n Riprap & Willow Hybrid Rehabilitation Or "N Ok. 4 10 P IK X Base Map: NIT DNRC; Flathead Basin 2009 Natural Color Aerial Photos tH-1w t r River Cross Sections Stillwater River Bank Stabilization IN 0 40 �,8Q FT no RECLAMATION MIX 40% Streambank Wheatgmss (Elymus lanteolatus ssp. psanmophilus) With gill = 2 lhs PI-Wacre Broadcast = 4 llas PLS/acre 35% Thickspike Wheatgrass (Elymus lanceolaturs ssp. lanoeolatus) With dill = 1.75 I bs Pt_Sf acre+ roadcast = 3.5 Its PltSlacre 25% Slender lfllrheatgrass (Elymus traohyca uIus) With drill = 1.S lbs PLSfa,cre Broadcast = S lbs PLSlacre Mulch = Straw mulch at4000 lbslacr-e Base Flood Elevation Elea. = 2959.380 Ordinary High Water Elev. = 2956.25' Ordinary Low Water Elea. = 2952.500 Existing streambed material cove 2' min. riprap thickness tre.arnbed Excavate to sour depth of 6_4' below the lest ekvation at cross section Scarier 9 I' = 5* Nativesoil backfill with 4" of topsoil to top of bank. Revegetate with FCD reclamation nix, � .do, �{ D50 Flip rap Geotextile Fabric (Riprap Rehabilitation Stillwater R lver Bank Stabilization MASTER AGREEMENT TO PROVIDE ENGINEERING SERVICES for BUFFALO HILL GOLF COURSE AND STILLWATER RIVER EROSION ASSESSMENT AND RECOMMENDATIONS This Professional service Agreement, made and entered into on this day of i 010, by and between the folloin : CITY of C LI PELL (hereinafter referred to as the "OWNER") 01 First Avenue East 'O, Box 1997 Kalispell, MT 59903 And RLK HYDRO, inn. (hereinafter referred to as the "ENGINEER") 484 North Main street Kalispell MT, 59901 W1TNEs ETH: WHEREAS, the OWNER is the owner of the property adjacent to the Stillwater Fiver through the Proposed study corridor, and WHEREAS, the OWNER has need for an engineering consultant and has authority to contract for such services, and WHEREAS, ENGINEER is willing to perform professional services for the OWNER under terms and conditions specified and contained herein, and WHEREAS, the ENGINEER represents that it is qualified to perform such services and is in eom pl ianee with the Montana statutes relating to the registration and licensing of Professional Engineers. NOW, THEREFORE, the parties hereto covenant and agree as follows: Page I of 1 IT IS AGREED BETWEEN OWNER AND ENGINEER AS FOLLOWS: ARTICLE I - SCOPE of WORK The ENGINEER agrees to provide designated, professional services to the OWNER for the BUFFALO MILL GOLF COURSE AND STILLWATER RIDER EROSION ASSESSMENT AND RECOMMENDATIONS for a term of five (5) year; from the date of execution of this Agreement with an option for contract extension. The services to be provided, and the compensation for such services, shall be mutually agreed to in separate Amendments to this Agreement, executed by Toth parties, Unless otherwise indicated in a forthcoming Amendment, execution of a Task order of Work by the OWNER shall constitute notice to and authorization for the ENGINEER to proceed with the services outlined in the particular Task Order. 1,0 BASIC SERVICES. The FNG INEER's work shall be performed in accordance with generally accepted standards by similar professionals who are licensed in the state of Montana. The basic services required may include the following tasks: 11 1 Preliminary Services - Those activities required for project familiarization and developing a scope of work as well as preliminary design, recommendations and cost estimates. 1.2 Funding Assistance Services - Assist city developing funding sources for planning, design and construction components. 1,3 Planning services — Provide services at the preliminary and final planning levels in order to obtain funding and to proceed with final design. 1.4 Design services — Those activities necessary to create a final design sufficient; to proceed with contractor selection and project construction. 1.5 Permitting Services — Those activities necessary to identify, prepare and submit required permits for project construction. 1.6 Bidding services - Assist City in advertising and securing bids, attend pre -bid conferences, analyze bid results, furnish recommendations for award and prepare contract documents. 1, Construction services - All basic services rendered after contract award including but not limited to, representing staff at preconstruction conferences, provide consultation and advice during construction, periodic inspections during construction, review and approve shop drawings, prepare and negotiate change orders, assist staff in payment requests, and provide final inspections. 1.8 closeout Services - All basic services rewired during and at the conclusion of the construction necessary to financially and administratively closeout the project. Page 2 of 1 2.0 TASK ORDERS. Engineering services will be provided on a Task Order basi3. Each new task order will be prepared as an Amendment to this Agreement. Potential, but not all inclusive, Task Orders that may be amended under this Agreement include components of theset-vices listed in Part 1,0 BASIC SERVICES. 3,0 OBLIGATIONS. ENGINEER will provide timeIV professional services as requested by the OWNER. Both parties will respond promptly to requests for information. Page 3 of 1 ARTICLE II - BASIS OF COMPENSATION .0 COMPENSATION, s a consideration for providing the services described in Article 1, the OW N ER shall pay the E N G I N EErl a lump sum fee or the ENG I N EER's salary cost, overhead, and direct costs, plus a fixed fee, whichever is appropriate, as described in each subsequent Amendment. 2.0 BUDGET. The budget for the scope of services for each Task Order as established in each Amendment shall he negotiated by the parties at the time each service is authorized. 10 CHANGE IN SCOPE OF WORK. The scope of Services and its related budget for each Phase of Work shall be Hailled to the 5c pe &fid budget so contained therein. Changes in the indicated scope of services shall he subject to renegotiation and shall he implemented by a formal amendment to the appropriate Task order. ,0 ENGINEERING COST BASIS, The budgets prepared for each Task order shall he based on salaries and expenses estimated for completing the work. should the services proposed he delayed because of circumstances beyond the control of the ENGINEER, the basis of payment will be renegotiated to provide for additional costs of service. 5.0 ADDITIONAL SERVICES, Additional services not specified in Article 1, but subsequently requested her the OWNER, shall be included in a subsequent Amendment or a separate agreement shall he written for the additional services. *0 LEGAL ASSISTANCE. The scope and extent of engineering services to he provided under this Agreement does not include costs of the ENGINEER for required or requested assistance to support, prepare, document, bring, defend, or assist in litigation undertaken or defended by the OWNER, except for suits or claims between the parties to this Agreement. ,0 ALTERNATIVE DESIGNS. if the OWNER directs that competitive bids betaken for construction of alternative designs where this involves the preparation of designs, drawings, and specifications for alternative facilities not previously agreed to, the compensation to the ENGINEER shall he on the basis of an additional payment to he mutually negotiated at the time the OWNER directs that alternative designs, drawings, and specifications he prepared. Page 4 of 1 ARTICLE III - PAYMENT FOR SERVICES 1,0 PAYMENT FOR SERVICES, Progress payment shall be made in proportion to services rendered and as indicated within this Agreement and shall be due and owing within thirty (o) days of the ENGINEER'S invoice. The ENGINEER relies on payments from the OWNER when due to meet the ENGINEER'S payroll and other costs of doing business. .0 INTEREST* It payment of the amounts due or any portion thereof is not made as prescribed above, interest on the unpaid balance thereof will accrue at a rate of (1 %) per month and become due and payable at the time said overdue payments are made, unless delay in payment is due to improper, contested, or inadequate billing procedures followed by the ENGINEER. In the event of disputed or contested billing, only that portion so contested shall be withheld, and the undisputed portion shall be paid in accordance with the payment provision outlined herein. Page 5of1 ARTICLE IV - OBLIGATION OF THE OWNER OWNER shall. ,-o Designate in writing a person authorized to act as the OWNER'S representative. Such person shall have complete authority to transmit instruction, receive information, and interpret and define the OWNEH'S policies and decisions with respect to materials, equipment, elements and systems pertinent to the ENGINEER'S EER'S services and no information or instructions from the OWNER pertaining to the project shall be transmitted to the contractor or to other concerned person or agencies except by the OWNER'S designated representative through the ENGINEER. EER. .o The OWNER shall provide to the ENGINEER all technical data in the OWNER'S possession, including previous reports, naps, surveys, borings, and all other information required by the ENGINEER and relating to the ENGINEER'S work on the project. .o Provide legal, accounting and insurance counseling services necessary for the Project, legal review of the construction Contract Documents and such auditing services as the OWNER E may require to account for expenditures of sums paid t the contractor. 4.0 Examine all studies, reports, sketches, drawings, specifications, proposals and other documents presented by the ENGINEER, EER, obtain advice of an attorney, insurance counselor and other consultants as the OWNER deems appropriate for such e mir tion n r n Jer in writing decisions pertaining thereto in a timely manner, .0 Obtain bids or proposals from Contractors for work relating to this Project and bear all costs of publishing advertisements for bids and for obtaining permits and licenses that may be required by local, state, or federal authorities and shall secure the necessary land, easements, and rights -of -way, and shall provide access s necessary for the ENGINEER to perform his services on public or private property as required, unless as otherwise specified herein. .o Guarantee access to and rake all provisions for the ENGINEER to eater upon all property, public and private as required. .o Give prompt written notice to the ENGINEER whenever the OWNER observes or otherwise becomes aware of any defect in the Project, or changed circumstances. 9.0 Furnish, or direct the ENGINEER to provide, necessary additional services as required. 10.0 The OWNER will not modify the construction Contract Documents without the written consent of the ENGINEER. page 6 of 1 ARTICLE v — ADDITIONAL SERVICES 1.0 Additional or extended services during construction made necessary by 1) work -in - progress damaged by unanticipated river f lows, (2) defective or incomplete work of the contractor, (3) prolongation of the initial! construction Contract time beyond the contract time, (4) the Contractor's default under the contract documents due to delinquency or insolvency. .0 Revise studies, reports, design documents, drawings, or specifications which have previously been approved by the OWNER, or when such revisions are due to causes beyond the control of the ENGINEER. .o Services due to changes in the scope of the project or its design, including but not limited to, changes in size, complexity, schedule or character of construction. 4,0 Other services not otherwise provided for in the Agreement or subsequent Amendment, including services normally furnished by the OWNER as described in Article iv. .o Services as an expert witness for the OWNER in connection with litigation or other proceedings involving the Project. 6.0 special analysis of the OWNER'S needs such as staffing and training, operating and maintenance manuals, and any other similar analyses, Page 7 of 1 ARTICLE v1- GENERAL PROVISIONS 1.0 EXTEND' of AGREEMENT. This Agreement represent3 the entire and integrated agreement between the OWNER and ENGINEER and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may he amended only by the written consent signed by be11-I the OWNER and ENGINEER. .0 DELAYS. Neilher party shall hold [lie ether responsible for darfla es or delay in performance caused by acts of nature, strikes, lockouts, accidents or other events beyond the control of the other or other's employees and agents. 0 BREACH. In the event any provisions of this Agreement shall be held to be invalid and unenforceable, the remaining provisions shall be valid and binding upon the parties. One or more waivers by either party of any provision, term, condition or covenant shall not be construed by the other party as a waiver of subsequent breach of the same by the other party, 4.0 SAFETY, Y The ENGINEER has not been retained to provide design and construction review services relating to the contractor's safety precautions or to the contractor's means, methods, techniques, sequences or procedures required for the Contractor to perform his work. The ENGINEER has been retained to review contractor's work to require full performance of contractor in accordance with Construction contract requirements, 5,0 CONSTRUCTION COST ESTIMATES, nor opinion of the construction cost prepared by the ENG INEER represents his judgment as a design professional and is supplied for the general guidance of the OWNER. Since the ENGINEER has no control over the cost of the labor and materials, or over nompetitive bidding or market conditions, the ENGINEER does not guarantee the accuracy of such opinions as compared to contractor's bids or actual cost to the OWNER. 6.0 TERMINATION of CONTRACT. The OWNER may without cause and without prejudice to any other right or remedy, terminate this Agreement as herein specified. A. The OWNER may, by written notice, terminate this Agreement in whole or in part at any time, either for the OWNER'S convenience or because of ENGINEER'S failure to fulfill the contract obligations. Upon receipt of such notice, services shall be immediately discontinued (unless the notice directs otherwise) and all materials as may have been accumu fated in pe rfo rml ng this contract, whether completed or in process, delivered to the OWNER, E. If the termination is for the convenience of the OWNER, an equitable adjustment in the contract price shall be made, but no amount shall be alloyed for anticipated profit on unperformed services. C. If the termination is due to failure to fulfill the ENGINEER'S obligations, the OWN E R may tame over the work and prosecute the same to completion by contract Page 8 of 1 or otherwise. In such case, the ENCINEEn shall be liable to the OWNER for any additional cost occasioned to the OWNER thereby, D. If, after notice of termination for failure to fulfill contract obligations, it is determined that the ENGINEER had not so failed, the termination shall be deemed to have been effected for the convenience of the OWNER. In such event, adjustment in the contract price shall be made as provided in Paragraph E. of this clause 7.0 CHANGES. The OWNER may, at any time by written order, make changes within the general scope of the Agreement in the services to be provided. If such changes cause an increase or decrease in ENGINEER'S 'S costs of, or time required for, performance of any services, an equitable adjustment shall be made and the Agreement shall be modified in writing accordingly. Any claim of ENGINEER for adjustment must be asserted in writing within 30 days from the date of receipt by ENGINEER EER of the notification of change unless OWNER grants a furthor poriod of time. 8.0 ENGINEER'S RESPONSIBILITY. Tho ENGINEER shall perform all work in accordance with standard accepted industry practices and shall be responsible for the professional quality, technical accuracy and the coordination of all designs, drawings, specifications, reports, and other services furnished by the ENGINEER under this Agreement. The ENGINEER shall, without additional compensation, correct or revise any errors or deficiencies in the designs, drawings, specifications, reports and other services. Approval by the OWNER or other regulatory agencies of drawings, designs, specifications, reports and incidental engineering services or materials furnished hereunder shall not in any way relieve the ENGINEER of responsibility for the technical adequacy of the work, Neither the OWNER's nor the appropriate regulatory agency's approval or acceptance of, nor payment for, any of the services shall be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement, and the ENGINEER shall be and rernaln liable in accordance with applicable laver for all damages to the OWNER caused by the ENGINEER'S negligent performance of any of the services furnished under this Agreement. The rights and remedies of the OWNER provided for under this Agreement are in addition to any other rights provided by lave. 9.0 LIMITATION of COST. The total cost to the OWNER for this contract shall not exceed the estimated cost set forth in this contract without prior approval of the OWNER. The ENGINEER agrees to use has best efforts to perform the work specified in, and all obligations under, the contract within such estimated cost. If the E N G I N E ER has mason to believe that the total cost to the OWNER for work under this contract shall exceed the contract amount,_ the ENGINEER shall inform the OWNED, in writing of such and submit a revised estimated contract cost for approval The OWNER shall not be obligated to reimburse the ENGINEER for costs incurred Page 9 of 1 in o cess of tho cstirnated cost cat forth in this contract and the ENGINEER shall not be obligated to continue performance under the contract or to incur costs in excess of the estimated cost set forth in the contract unless and until the OWNER E has notified the ENGINEER EER in writing that the contract amount has been arT-ierided and shall have specified in such notice a revised estimated cost which shall there upon constitute the estimated cost of performance of this contract. 10.0 COVENANT AGAINST CONTINGENT FEES. The ENGINEER warrants that he has not employed or retained any company or person, other than a bona fide employee working solely for the ENGINEER, to solicit or secure this Agreement, and that he has not paid or agreed to pay any company or persons, other than a bona fide employee working solely for the ENGINEER, any fee, commission, percentage, brokerage, fee, gifts, or any other consideration, contingent upon or resulting for the award or making of this Agreement. For breach or violation of this warranty, the OWNER shall have the right to annul this Agreement without liabifitv, or in its discretion to deduct from the contract price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. 11.0 VENUE.. In any litigation arising out of this Agreement, the successful litigant shall be entitled to receive from the other party, in addition to costs and disbursements provided for the statute, a reasonable attorney's fee as fixed by the Court. The venue of and civil action shall be in Montana Eleventh Judicial District Court, Flathead County. 12,0 LIMITATION of LIABILITY. The OWNER agrees to limit the ENGINEER'S liability to the OWNER and to all construction contractors, subcontractors, material suppliers, and all others associated with the project, due to the ENGINEER'S EER' sole negligent acts, errors, or omissions. The total aggregate liability of ENGINEER to all those named shall not exceed tho EN G I NEED'S total compensation for the services rendered. 13.0 ACCESS TO RECORDS. The ENGINEER agrocs to maintain an acceptable cost accounting system. The OWNER shall have access to any books, documents, paper, and records of the ENGINEER which are directly pertinent to this Agreement for the purpose of raking an audit, examination, excerpts, and transcriptions. The ENGINEER shall maintain all required records for 3 gears after the OWNER makes final payment and all other pending matters are closed. 14.0 SUCCESSORS AND ASSIGNS. OWNER and ENGINEER each binds them and their partners, successors, executors, administrators and assigns to the other party of this Agreement and to the partners, successors, executors, administrators and assigns of such other party, in respect to all covenants of this Agreement. Neither OWNER nor ENGINEER EER small assign, sublet, or transfer his interest in this Agreement without the written consent of the other. Nothing herein shall be construed as creating any personal liability on the part of any officer or agent of any public body which may be a party hereto, nor shall it be construed as giving any Page 10 of 1,3 rights or benefits herounder to anyone other than the OWNER and ENGINEER. . 15.0 AFFIRMATIVE ACTION PLAN. N/A 16.0 SUBCONTRACTS. Any subcontractors required by ENGINEER in connection with the services covered by this Agreement shall be limited to such individuals or firms as were specifically identified and agreed to during negotiations, or as authorized by OWNER in performance of this Agreement. Any changes of such subcontractors shall be subject to the prior approval of OWNER. 17,0 INDEMNIFICATION. The OWNER shall be indemnified by the ENGINEER as herein provided. The ENGINEER is an independent contractor and operator re,sparisi le to all parlies for its re pective acts and the OWNER Shall in no VVay be responsible therefore. In the use of the Stillwater River study corridor, and in the exercise or enjoyment of the privileges herein granted, the ENGINEER shall indemnify and hold the OWNER harmless from any and all losses that may result to the OWNER because of any negligence or act on the part of the ENGINEER. 18.0 INSURANCE:. The ENGINEER shall pay for and maintain Public Liability and Property Damage Insurance in an amount of not less than $1,000,000 for property damage and for bodily injuries, including accidental death. ENGINEER shall maintain said insurance with insurance underwriters authorized to do business in the state of Montana satisfactory to the OWNER, All policies shall name the OWNER I its officers, servants, agents, and employees as additional insureds as their interests shall appear. ENGINEER shall furnish the OWNER with a certificate of Insurance annually during the term hereof, showing such insurances to be in full force and effect during the entire term of this agreement. The ENGINEER shall also furnish the OWNER proof of Error and omission Insurance coverage. 19.0 ,TERMINATI._,,I� L QANCELLAT[O.N. This agreement shall terminate at the end of the full term hereof without any notice by either party, provided, however, that either party may cancel this Agreement for whatever reason on 30 days written notice to the other party. 0.0 ATTORNEY'S FEES. In the event either party engages the services of an attorney to enforce any provision hereof or to secure payments, the prevailing pay will be entitled to recover its costs, charges, and expenses, including reasonable attorney's fees incurred. 1.0 SUBORDINATION of AGREEMENT. T. N/A 2.0 NONDISCRIMINATION. N/A 23,0 WORKER'S COMPENSATION COVERAGE., The ENGINEER agrees to provide proof that he has a policy for Wor ees compensation Insurance or proof that ho has elected to be exempt from such coverage and his election has been approved by the Department of Labor and Industry. The ENGINEER agrees to maintain Page I I of 1 Worker's Compensation Coverage for the entire period of this Agreement, 4.0 PARAGRAPH HEADING, The paragraph headings contained herein are for convenience in reference and are not intended to define or limit the scope of are provisions of this Agreement or the particular paragraphs, 25.0 NOTICES. Notices to the OWNER shall be seat by Certified flail, postage prepaid, addressed to: City of Kalispell 01 1 �'t Aire n ue East P.O. Box 1997 Kalispell, 11T 59903 And notices to the ENGINEER, shall be sent by Certified Mail, postage prepaid, addressed to; ILK HIND, Inc. 44 North plain Street Kalispell MT, 59901 Or to such other addresses as the parties may designate to each other In writing, from time to time, Pa go, 1 of 13 ARTICLE - ATTACHMENTS, SCHEDULES5 AND SIGNATURES .Ag.reement _Descr . This Master Agreement (consisting of pages 1 to 1 inclusive) and attached Appendix A constitute the Master Agreement between the OWNER and the ENGINEER and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written addendum. . Ame-ndix Description. Appendix — Hourly Hates for Professional Services Exhibit A. Hourly Rates for Profe;aion l Services WITNESS WHEREOF, the parties hereto have executed this AGREEMENT this day of (96-�; 6cc 2010. OWNER ENGINEER -A Y Jan Howington, City Manaber MarcPratt, P.H., �,:G City of Kalispell RLK HYDRO, Inc. 201 1 st Avenue East 484 North Main n tre et Kalispell, MT 59915 Kalispell, MT 59901 Page 13 of 1 APPENDIX A HOURLY RATES FOR PROFESSIONAL SERVICES EXHIBIT "A° - Current Rate Schedule (Attached) Attachment A RLK HYDRO, INC, FEE Schedule Effective January 1, 2,008 Description Hyd.rogeologist 11 Hydrogeologist 1 Senior Engineer III Senior Engineer 11 Engineer I Survey (2 Person Crew and Equipment) t Technician Plant Ecologist Computer -Aided Drafting Senior Clerical Clerical Staff Travel Time Subcontractors Reimbursable Miscellaneous & Exxpensez Expenses Materials ( Cash Duo on Delivery) Meals ` Mileage (*Note-: Rate, May be adjusted if gas prices increase) Per Diem (-tNote,: If room costs ale over S100/highs, fees will bc� room cost plus 10% Porrnit Packet (Approved Permit Construction Packet) Photos -- Download (Digital) Photos - CD (Digital) Photos - Individual Prints (from Digital) Equipment Rental Altimeter/Barometer B arclogger - Solinist B aroTroil - Initu Digital Depth Sonnder Digital Retrieval Unit (PD ) -Tape Groundwater Flow Meter Hydrolab Level Logger wl 500 a Cable/Comm. Connectors Level Troll 500 wl Reel/Troll Corn Mini`,l `rolllCornIT PC Cable Nikon 330 DT wl2 Person Crew Pontoon Boat - I day minirnun Price AA Meter Pygmy Flow l etor Specific Conductance PR Meter Transit Well Discharge Flow Meter., Size 15-75 gpm Well Discharge Flow Meter: Size 60-240 gprn Well Discharge Flow Meter: Size 100-1000 gpm GP , I day minimum Rate per Hour $ 100.00 $ 65.00 $ 100.00 $ 75.00 $ 650 1 1 o.00 45.00 $ WOO $ 45.00 $ 50.00 $ 35.00 50% of Fate per Hour C"Ost + 10 % Rate Cost + 10% Cost + 15% $ 50.off}/person/day $ .500 per mile', $100.00/person/dayf $ 25 .00 - Per Packet $ 8.75 per download $ 20.00 per CD $ .5o each Rate Rate Per Day Rate Rate Per Hour (except where noted) Fier week Per Month $ 18.00 $ 3 3.00 $1 5.0o S 372.00 $ 33.00 $1 5.00 $ 3 72.00 5.00 $ 20.00 $ 70.00 $ 25.00 $100 .00 $300.00 $110.00 $280.00 $ 30.00 $ 70.00 $21o.00 $ 30.00 $ 95.00 $ 6o.0o $ 55.00 $220,00 $372.00 $100.00 See rate per hour $ 15.00 $ 6o _00 $ 60 W $ 9.00 $ 15.00 $ 25 .00 $1 00 .00 $ 25.00 $100.00 $ 5.00 $100.00 $ 55.00 Return to: City Clerk P.O. Box 1997 � O Kalispell MT 59903 IIIIVnIAVIV111911111111BIIlYiI@IIIIIIIVIIIbIIIVIIIIIIVYIIIYIII�lllellll N 200900033418 'aP.ui. kooin.on.um.sa coumn Mi by .w ,zi3izoossaM O lU KALISPELL CITY GOLF COURSE LEASE �+a THIS LEA made and entered into as of the day of 00 and LZ between the City of Kalispell, Montana, a Municipal Corporation, hereinafter referred to as LESSOR, and the Kalispell Golf Association, a Montana Corporation, hereinafter referred to as LESSEE, W I T N E S S E TH: For and in consideration of the mutual covenants and promises hereinafter set forth, the parties hereto agree as follows: L PROPERTY: LESSOR hereby leases to LESSEE and LESSEE hereby leases and hires from LESSOR those certain prernises and all appurtenances thereto situated in Kalispell, Flathead County, Montana, as follows: All of that property owned by LESSOR and commonly known, referred to and utilized as the Kalispell City Golf Co-urse. Attached as Exhibit "A" is a reap with the subject premises o-utlined. Attached is Exhibit "B" which identifies the boundary and fence line between the golf course and the north portion of the old } Lawrence Park. The total area consists of approximately 240 acres. 2. TERM.- To HAVE AND TO HOLD the above rented premises during the full term of twenty 0 years, which tern shall begin upon the date above written or the date on which the agreement is approved by the electors and shad terminate upon the expiration of said I . full twenty year terra, unless terminated sooner as hereinafter provided. 3, GROSS RECEIPTS; For purposes of this Lease, '"Gross Receipts" shall he defined as all gross receipts obtained by LESSEE from the operation of the driving range (golf hall rentals), membership .fees (season passes), the sale of green fee punch cards and other green fees. All other receipts shall not he defined as gross receipts under the provisions of this lease k and shall be and remain the sole income of LESSEE. 1 4RENT7 T._F FF shal Pay to TRYSOR, as rent, a sum to be dete=ined annually as herein provided, payable for the preceding year, on or before the 30th day of .tune, commencing with June 30, 2010 and continuing on the 30tb day of June throughout the term of this Lease. The annual rent for the full term of this lease shall be based upon Gross Receipts, as defined in Section 33, hereof, and be c cula ted as set forth in "F h ihi t C"', attached hereto and for purposes of this Agreement made a part hereof. Said rent pa ym e-W small be. mailed or deli.ve.re.d to T.F.SSOR at the Kalispell City Hall. A l l prior rents due by LESSEE to LESSOR under that certain lease dated April 1, 1997 are hereby deerned and agreed to be paid in full and let it be known and agreed that upon approval of this agreement as provided in section 2, hereof, this lease shall super_ sed e a n.y and all Teases bN. t o �n the Kalispell Golf Association and the City of Kalispell.. 5 _ USE of LEASED PREMISES: LFSSFF shall use the lensed prern i ses for the primary purpose of operating a municipal golf course. In addition, on March 6, 2006, the City of Kalispell City Council passed a ruction to approve a Multiple -Use Policy for Buffalo Hill Golf Course., attached hereto as Exhibit'T". which Policy is hereby fully incorporated herein by this reference. LESSEE agrees to observe all Federal, State and municipal laws and regulations including these related to human and equal rights and in particular Bureau of Outdoor Recreation . or its su cce.ssc rs, regulations. LESSEE shall not sublease or assign any portion of the leased premises without prior Written permission of the LESSOR. LRSSOR shall not agree: toany such sublease or use. agreement unless such lease or use is accessory to the managemcent of a typical golf course. For example, a restaurant or golf cart concession would be considered such a typical accessory use. 6. MAINTENANCE AND REPAIR OF PREMISES: LES SEE agrees to maintain the above described premises in as good a condition as the same are in at this time, or as good as they may be. prat by T-RSSOR during the terra hereof in ease, of a casualty loss causing repair or reconstruction by LESSOR; and to return said property to LESSOR at the expiration of said lease in said condition, reasonable wear and tear and damage by the elements alone excepted. In the evert LF F.F refuses or neglects to keep the above -mentioned premises in such order and condition hereinab eve mentl onM, LESSOR shall have, after first giving ninety (90) days written notice to repair, the right to declare this lease null and void and of no further force and effect. In this case the, a-nnual paymp.nts of rent shall termi-nate. and LF&SFF shall not in any way he responsible for any future rent payments, LESSEE agrees to maintain and keep in repair all water limes and pinups on said golf course} and to attend to the shutting off of the water supply and draining of MI pipe lines in the fall, and to turn the water in to said system in the spring, a). Stormwater Regulations: The City of Kalispell, the LESSOR, is mandated by the federal and .state: governments to monitor and enforce. the Stormwater M.S4 Standards within the city limits of Kalispell. Because of the topography, watercourses and frequent, somewhat extensive landscaping projects on the Kalispell City Golf Course, it is essential that the KGA 2 fill 111111 lill 111111111111 h I ill 11111111 ;,g�°za„q=� vaLfla Robinson, Flathead county Mr by rvw Fees; gae.ao 1-2/3/3009 2:59 vM Superintendent or his designee closely cooperate with the Kalispell public workq T)epartt P.nt to assure that the M 4 Standards are maintained. For this reason the K A Superintendent or his representative shall meet with a representative of the Kalispell Public Works Department for a training session on an annual basis so that compliance may he mai n ta.i n ed _ The, G A_ shall submit Its project stormwater compliance plans to the Kalispell Public works Department prior to commencement of such projects. The KGB. agrees to remain in full compliance with the MS4 Storm water standards. h.) Representatives frorn the K.A and the ity's Parks Department and Department of Public works shall meet prior to Desce.mber l-, ?nnc) tO draft a capital protection program for the property covered by this lease. Iterns of deferred maintenance shall he identified as well as any other assets suffering or threatened with damage or devaluation. Estimated costs} revenue sources and priorities will be developed as q part of a VInn to protect and preserve the assets. In the event that the KGA determines to expend its funds for infrastructure improvements that are on the capital protection program prior to that time scheduled and that are otherwise scheduled to he funded by the City of al i spell, i t may applyfair a credit of those. �� nd � against its lease payments. 7. (a) City of Kalisp ll's Access to Golf Course: For the nr ose, of main ----- -- - .- p 1� • twining public utilities, the City of Kalispell may from time. to tirne require access to the golf course. In the event such maintenance is required, the City of Kalispell shall provide adequate written notice to Kalispell Golf Association by providing the KGA with the. hid documents upon advertisement, In no event shall this information he provided less than 60 days prior to scheduled work. The written notice shall outline the nature, purpose, access dates, and areas affected on the golf course. In the event that emergency maintenance is regn i red for the pu rpOse, of providing city utilities, the City of Kalispell shall, upon discovery of need for access/maintenance, Provide immediate written and verbal notice to the Kalispell Golf Association. Upon notice thereof, Kalispell Golf Association will grant access for eme.rgency Tninte.-nAT—ice as requested_ . ALTERATIONS AND IMPROVEMENTS: LESSEE shall not make any alterations or improvements to the premises or the, appiirtenances located thereon in excess of Twenty -Five, Thousand Dollars ($25,000.00) at any one time without having first received approval from the LESSOR of the intended alteration or improvement. LESSEE shall report to LESSOR OR annually on alterations and irnprovemen is cn.,;fi ng less than - . ,000- 00- 9. UTILITIES.- During the entire term of this lease LESSEE shall pay when due for required utilities serving the leased premises, i n clu d i ng N i t not limited to, electrical, gas, tclephone, water, sewer and garbage services. LESSEE shall also he entitled to continue use of LE S OR' s appropriated water right of the Stillwater River adjacent to the golf course premises without charge. LESSEE in using the water from the Stillwater R ivex under said water rights shall operate and maintain the system and pump for such purposes. 10. PHR AL PROPERTY ANT) F_T__ TUIF- All personal property hereinhefore or hereinafter obtained in connection with the operation and maintenance of the Kalispell City Golf Course shall he the property of LESSEE; provided, however, that all fitures that have been II�IdI��IVIVIIIIIIIIIIIIIIIIIIIIIIIIIVInAIIIIIIIInINYlllgllllll�91111 Fed=°;gaop'a Paula 0.ab,n.an, Flathead County Mr by NW 1z,3,2�9 z:sa PM or may be installed on the premises and attached thereto have or will become part of the premises and are the property of LESSOR. 1.1. COST OFOPERATION: All costs of operation including the cost or providing supplies, equipment, tools, labor and other such iterns and the entire cost of maintaining and operating the golf course, the club house and other appurtenances shall be the sole responsibility of LESSEE. 12, USE of CLUBHOUSE BY LESSOR: Although LESSEE shall have the exclusive use and supervision of all buildings on said premises including that structure known as the clubhouse, it is agreed that LESSOR shall be entitled to use of the clubhouse at any convenient time to LESSEE upon adequate notice with LESSOR reimbursing LESSEE for all actual expenses incurred by LESSEE for the reason of any such use by LESSOR, 1. GOLF COURSE FEES: A schedule of nnernbership fees (season passes, green fees punch cards and other green fees shall be presented by LESSEE to LESSOR rior to the. first day of April of each year of this Lease. The schedule for such fees for the 2009 golfing season is attached hereto as Exhibit D, and by this reference made a part hereof, LESSEE, at its discretion, may from year to year, during the term of this Lease, increase or decrease its Schedule of Fees, then in effect, up to ten percent 10%without prior approval of such an increase from LESSOR. LESSOR shall not unreasonably withhold its approval of any proposed Fee Schedule for which its approval may be required under this Lease. 14. LESSEE ` FINANCIAL RF TQRT ; inually, on or before the 30th cia y of Rine, in conjunction with the payment of the annual rent, LESSEE shall present to LESSOR for review a copy of LE EE's annual financial report completed in accordance with generally accepted accounting principles. The association's financial records will be subject to an audit coed dieted by, and at the option of, the City (internal staff or contract auditor) . The cost of such audit shall be paid by the City. 15, LEA ' LIABILITY 1 URAE: LESSEE shall obtain and keep in ill force and effect during the terra of this lease, full general liability insurance in the amount of One Million, Five Hundred Thousand Dollars ($1,500,000.00) with a company licensed m ci n business in the State of Montana} and said policy of insurance shall name LESSOR as additional narned insured. In the event the Montana legislature increases the limitations on government liability for damages in tort LESSEE agrees to increase its liability cove --age apprnpria tel y _ LESSOR shall be furnished with a. certificate that such insurance is in force and the same shall provide for reasonable notification to LESSOR prior to the sarne being canceled. LESSEE agrees to hold. LESSOR harmless from any and all liability of any nature} whatsoever ari'Sing from or out of LES SEE's possession, use, maintenance, improvement or occupancy of the property herein described; LESSEE further agrees to defend, at L SEE } s expense, any action brought against LESSOR arising out of LE EE's possession, use,.,. rnaintenance, improvement or occupancy of said. property. IIIIIIIII�IIIiI��IIIN1119111�11191111111111111Y18�111811111111dBIVIIINIIII Pas:°<°o,�41e �z 5oP.ula Robinson, Fl.«.aa County M. by NW 1z,3,z9s M 16, FIRE -INSURANCE: Luring the fall teen of this lease, LESSOR shall maintain its own fire insurance adequate to cover replacement costs on the improverments on said premises. Should the premises during the term of this lease suffer damages which are covered b said fire insurance policy, LESSOR agrees to utilize all insurance reimbursements therefore, toward rebuilding or repairing the damaged prernises, or toward providing adequate reel ace.,ment facilities. The contents of buildings and fixtures located on the premises shall be insured by LESSEE and shall be in such amounts as to assure replacement. The parties mutually agree as to waiver of subrogation rights each with the other. 17. DEFAULT AND BANKRUPTCY: In the event that (a) LESSEE shall default in the payment of any installment of rent or other sum herein specified and such default shall continue for thirty 0 days after written noticc thereof} or M LESSEE shall default in the observance or performance of an other of LEEE's covenants, agreements, or obligations hereunder and such default shall not be corrected within ninety 90) days after written notice thereof, or (c) LESSEE shall be declared bankrupt or insolvent according to law, or, if any assignment shall be made of LESSEE"s property for the benefit of creditors; LESSOR shall have the right thereafter, when such default continues, to re --enter and take complete possession of the leased premises, according to law, and to declare the term of this lease ended, and to remove LEEE's effects} without prejudice. In doing so no additional rent payments may be collected from LESSEES however, if LESSEE shall default, after reasonable notice thereof, in observance or performance of any conditions or covenants on LEEE's part to be observed or performed by virtue of any of the provisions in any article of this lease, LESSOR, without being under any obligation to do so and without thereby waiving such default, may remedy such default for the account and at the expense of LESSEE. 18. NOTICE: No notice from LESSOR to LESSEE relating to the leased premises or the occupancy thereof, shall he deemed duly served unless personally served upon or mailed to LESSEE, registered or certified mail, return receipt requested, postage prepaid, and addressed to LESSEE at its address as follows: Manager, Kalispell City Golf Course Post office Box 1116 Kalispell, Montana. 59903 Any notice from LESSEE to LESSOR relating to the leased premises or the occupancy thereof, shall be deemed duly served, if personally served upon or if mailed to LESSOR by registered or certified mail, re turn receipt requested, postage. prepaid, and addressed to LESSOR OR At the address as follows: 1111111111111111nBIIIIIIIBI�YIIIIIII�IIIIIIIIAIIIYIIIIIIIIeIN�8111111Y1111 P;�°=of�a=° a.wa nonin.o,,, vi,ene,e County nr nv xw iai3i ooz ss'vw 1111111111111111IIIIIIIIImIIIIIII�IN91Vtllll�llllllll��llllll�llil Pe9<°bo��4'a Fees: Manager Paula "°^i^•°^, Flathead counry en by rvw 13/3/2009 3:58 OM City of Kalispell 201 First Avenue East Kalispell, Montana. 59 0 -1997 19. EXISTING LEASE: It is mutually understood and agreed between the parties hereto that nc actions take-n or not taken by either party in the negotiation or execution of this agreement shall constitute a waiver of any rights that either party may Eow have or hereafter have relating to or arising out of the e istm g Lease between the City of Kalispell and the Kalispell Golf .Association dated April 1, 1 ` ; and, and each party specifically reserves the right to present any claim Or defense to any claim relating to or arising out of said Lease. II EFFECT: It is mutually agreed by and between the parties hereto that the time of payment shall he an, essential part of this lease agreement, and that all of the covenants and agreements herein contained shall extend to and he binding upon the parties hereto} and their successors and assigns. IN WITNESS WHEREOF, the parties have executed this lease as of the date first above written. ATTEST: Theresa White City Clerk ATTEST-. S �.s Texr z liams Assnciatinn SecrPtar}r CITY OF KALISPELL ai1P. Hto) WTTlgi(1T1 City Manager KALISPELL GOLF ASSOCIATION r Drug Kauffman � President II�IIIIIGIIIBIIIVIIIIIIIVIIIIIIIINIIIVIIIIIIIIVIIINIIIIIIIIVIIIVIIIIIIIBIIII P=9.°°°f=4'a ,: 59s.ao STATE OF MONTANA ) P°L^° a°^'"'°", Flathead cowna Mr by rvw azian`oos ise vn SS. County of Flathead ) On this. `�__yk . day of _ � . e - 009 a b Fore one, a Notary Public for the State of .Montana, personally appeared Jane M. Ho ington and Theresa While, respectively, proved to one to he the persons whose names are subscribed to the within instrument and ac no lea�red to nee that they each executed the same in their respective authorized capacities as City Manager and City Clerk of the City of Kalispell. JX 4TNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year hereinabove first written, ss. County of Flathead tY_ _ Printed Name:. NOTARY PUBLIC for the State, of Fontana Residing at: y Commission expires: �� on thi� day of T 2009, before me a Notary Public for the State of Montana} personally appeared Doug Kauffman and Terry Williams and proved to me to he the persons whose names are subscribed to the within instrument, and acknowledged to me that they each e ec ted the same in their respective authorized capacities as President and Secretary of the Kalispell Golf Association, a Montana not for profit corporation. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day apd year hereinahove first written. } ,5 a L; /7 f �� Fk ti •• r �.7m;� t ��*�tif � tiro:"� o Printed Name: ' - p e l � NOTARY PUBLIC for the Staux of Montala Residing at: C-6 -z --F-"- &,.,,-r My Commission expires-. -. l -- o 1 7 �aZ-ai q�19 g.,r'k1 ExMbit "A" MAP WITH THE SUBJECT PREMISES OUTLINEE 1 ' it Ll K { wig* �i tL T dP • t t F W� TYI � • � r t � T � i Page: 8 of 14 Fees: $98,00 Paula aoninw , Flathead County b mi y NW f3/s/3ooY z_se rn Exhibit "" BOIJNDARY BETWEEN THE GOLF CODE AND THE NORTH PORTION OF THE OLD LAVMMCE PARK Lqv Water Lf nay Of 6A ruiri t Of aczj�11;1r Of Pence Una RA I rolAt an re FmCgr LIFE KELMTftw ] � SPELL MICI tA. antf nt *t the n turner iot the #dater Dept, Xainconanta 8�ujldjhg in Uvr4ncc Fark, t rwto N W 9;, 54 fact t* tha RE f a-n!ca corner of tha ` Varar Dept. Site in lawrenza Fork. thamta 9 68* V, tin &n4 41ong the txivi;ing fence fin* �# foot to a poly t, txita 9 10* 9 on and along t h o existing fartca lint 243 tiket to the point of �aginnint of the f eett l itta r tlotat#on t thence along thr foiiowfns couraaa* X 20' .9# 290 matt N 3* VA 110 fiats N a3* va 47 footr # 294 va 103 feet to a #0 ivt can the Low vi tt r tin* of the Still era rt r tfva.ri W4 poinr on the Lots Va t er Unw of the Stillwator drat being the #nd of rha facto line relocation. RMt All bearings imra obtained through the use of a hand compass. All Information hereon wo ahtained an ffav &r 18, 19M Chia settion Of Fars&a ro so XaM*vftd E, Fence Cot' *r Va ter pr. Site In Casa ease Park E{ Corner W4ter Dept• frikid"A oe a"4141TIS ire vranta Part �IVIII611111�VIII�IIINIA9111A1iIV1110111AlIIhIIIRIIIIIIIVIIIIIV91111 Fe9"sgaoo° Paula aobinsory Flathead caunry nr by xw 12/3/2009 2:56 PM EXHIBIT "C" Formula for Calculating Annual Lease Payments 1. In determining lease payments the parties shall utilize a rolling average of "Gross Recei-Pts77 over the previous three years in calculating the lease payment for a particular year. 2. A minimum base lease payment $13, 000 shall be payable, so long as the rolling average of "Gross Receipts"' as defined under section 3 of the Agreement do not exceed $750,000-0 . . In the event the rolling average of "Gross Receipts}' exceed 7 0,000.00 but do not exceed $ 50,000.00, the Lease Payment shall be two percent % of said "Gross Receipts". 4. In the went the rolling avera of "Gross Receipts" exceeds $850,000.00 the Lease Payment shall be two and one --half percent 1 / %) of said "Gross Receipts"'. Rolling average, Level I Level 2 Level Gross Revenue Base Lease $0 $750NO $13,000 750a001 — $ 507000 % $85000 + 2.5% 111111111uii Pia°°o;..;e e, .9a.00 Paula Robinson, Flathead county MT by NW 12/3130091:58 DM to Exhibit I'D" Buffalo Hill Golf Course 009 Schedule, of Fees * Membershi easo n Pass) 2009 2008 .adult — All 27 holes $ 59 $59 Adult -i--f Cameron 9 $49 N/ Student Full -Time College) $225 $225 Junior (High school Senior and below) 150 140 r: rn Fees 18 Hole Championship Course 5 $ o 9 Hole Camp,,ron Course $ $ 20 *Above adult seaso-n pass rates reflect "regular season') prices. An "early bird" discount rate, was offe.rM in 2008 of $499, and $549 in 2009. In addition} a separate 44capital fee" of l 25 was assessed to each adult member "Above bove reen fees mfle t peak season rates. Discounted rates offered to allow for non -peak conditions, promotions, and package ratcs. 1n addition, (not reflected in the fees above) a $5 capital fee is charged for each 1 hole green fee on the Championship 18, and a $3 capital fee is charged for each 9 hole green fee,, III��IIIgNIkINAl119111A11(tlIIIIIIINIIiVIN�IIIpIIINIIIAlIIBVININ81�olfll �°��;e aaUi: aonin„t,, ci,th.,e co,,,,ry nr cy xw Fea:: $se_oo «/anoos x:se cM 11 IUInhIaQINIIIYIIIIIIINIIIIflIN9111bn191hGIOnllll.12 <IIIIdINIIInIIINIE8 oaul. Aae,n.op, «.aa County M. by NW z0 Exhibit "E" Kalispell Golf Course Multiple Use Policy TM Kalispell Golf Association (KGA) leases the golf course from the City of Kalispell for the purpose of providing the, hest possible. golfing conditions for its paying members and guests, As a result, the KGA and the pity of Kalispell must he responsible for controlling access to the golf course for both golfers and non -golfers. Personal safety is highest priority. Golfer Aeees.q: 1. Golfers are allowed on the course only during "open tee time" periods as posted in the Clubhouse Rational There are pre i ctable periods of time hen the COUTSe is closed for 172airrtenwi e,. consequently, there are no "open tee times" during these periods of time. 2. Golfers are allowed on the course when the course is safe and ready to play as determined by the Golf Course Nlaintenance Staff. Rational: There are environmental conditions that occasionally occur that result in the closure of the course. For example, heavy rains can cause dangerous soil conditions for golfers and traffic during saturated soil conditions, resulting in soil compaction, which is detrimental to the playabillry of the turf. Frost covered turf can die if traffic c is allowed; consequently, the coarse is closed unit l the fi-ost rraelts. High winds can result in dangerous debris arid haza r-dous Irees cart the coarse; consequently, the coarse maybe closed until the dangerous Conditions have been corrected. The o, ff Course Maintenance Staff is responsible for raking the course playable, and as a result, Mak:ing the determination when the course is safe to playa 3. Golfers are not allowed on the course when lightning is in the area, as determined by the Pro Shop Staff. Rational.- Lightning kills golfers every year. The Pro Shop Staff will do it best to close and clear the golf coarse when lightning is threatening. The Pro Shag staff will also determine when the lightning appears to have left the area, and then re -open the golf course for play. 4. Golfers are not allowed on the course during the nighttime hours when the course is 11 open for the season ■ " Rational. The golf course is irrigated during the nighttime hours. The golf coarse irrigations system operates at high pressure (up to 120 .BSI). Anyone hit by this high-pressure. high -velocity water can sustain significant injury andpossibly even death, consequently, the course is closed to non -golfers daring the nighttime hours when the coarse is "open for the season. " Buffalo Bill Golf Course has significant elevation charges throughout its ground's, and the limited light during the nighttime o-urs can impair one 's ability to accurately judge the terrain., consequently, the coarse is closed to non -golfers during the nighttime hours and when the course is "open for the season. ' 1z . Golfers are not allowed on the course when the course is "closed for the season" as determined by the General Manager. Rational: once the course is "closed for the season," other non -golfer activities begin such as jogging, sle diir and ,ski rug_ h e.s non -golfers a ro not aware of the risks golf halls pose and 'I/ not be prepared to look -out for .lying golf ba iis; consequently, when the course is closed for the season, golfers may not play on the course. Non -Golfer Access: 1_ Non -Golfers activities such as ,dogging and walldng are eneoura ed when the course is "closed for the season," subject to hours governing city parks, generally open at : 0o a.m. and closed at 11:00 p.m. Rational: Non -golfing activities such as walking and jogging are encouraged when the gold` course is closedfor for the season, and daring hours consistent with other City o Ka lispell parks, 2. Siding and sledding is encouraged when adequate snow cover exists as determined by the Golf Course Maintenance Staff. . Non -Golfers are not allowed on the course during the daylight hours when the course is " open for the season. " Rational: Golf bails have been clocked at over 150 mph, and typically land with a velocity off ` over 50 rnla _, consequently, . it g golf balls significant danger raor -go1� C7 Iro rrlaY stray into larding zones. 4. Non -Golfers are not allowed on the course during the nighttime hours when the course is IT open for the season," Rational: l: The golf f course is irrigated during the nighttime hours. The golf f course irrigations system operates at high pre,5sum (up to 120 PSI). Anyone hit by this high-pressure, essur-e, h gh-vela ity water can sustain significant injuq andpossibly even death; consequently, the course is closed to non -golfers during the nighttime hours when the course is "open for the season. " Bfa to Hill Golf Course has significant elevation changes dir-ougho t its grounds, and Me litnited light during the nighttime hours can impair ones ability to accurately judge the terrain, consequently, the course is closed to non -golfers during the nighttime hours and when the course is "open for die season, " Non -Golfers are not allowed on the course when frost covered turf conditions exist even when the course is "closed for the season." Rational: Frost covered turf can die if traffic is is a llo ed consequently, the grounds are closed to all traffic until thefrost melts as determined by the Golf Course Maintenance Staf. Rational: Skiing andsledding can cause damage to the turf when there is inadequate snow cover, consequently, the course will be closed to skiing and sledding duringperiods of limited snow cover as determined by Me Golf Course Maintenance Staff. . t3 110 ill all 11111111 �°g.°°,o;,q r=�t. xoom n, r�atneaa ceunry ni by xw az/3Jxo°ssa�pM o 6. Consis.tent with other public golf courses in the area, dogs are not allowed on the rounds at any time whether with 9- Offers or non -golfers, offers, Rational: For purposes of liability and safety of pedestrians, dogs are not allowed on the golf course at a7ZY tilitc, Additionally, fecal deposits Pose signs icara health riYL io skiers and sledders as well as for the Golf Course Maintenance Staff daring the turf maintenance seasons, Damage to turf is also a common result of dog waste. Finally, like a baseballid or football field, golf cour-se t i f is Z'Wended for- a specific use, as such, dogs anti their- wasie du nut belong on the golf coarse because both can negatively impact the competition. This policy is for the benefit and welfare of bogs the golfing and non -golfing community, Violations are subject to public ordinance} which may result in fines or other penal ties. 1111111IIAlIl7111wIIIp1111111911nIIIIIIINI��III�IIIAiIINIIIVIIII Pasa°sgaoo4 Paula Robin , Flathoad ceunry w* ny xw 12/3/20091:58 DM 14