09. Resolution 4411 - Preliminary Plat - Southfield Park (Haven Field)RESOLUTION NO. 4411
A RESOLUTION APPROVING THE PRELIMINARY PLAT OF SOUTHFIELD PARK
(HAVEN FIELD) COMMERCIAL SUBDIVISION, FLATHEAD COUNTY, MONTANA.
WHEREAS, Richard A. Dasen, Sr., the owner of certain real
property known as the Haven Field Subdivision located on the
southeast corner of 93 South and 18th Street East and more
particularly described as Assessor's Tract 8AD located in Section
20, Township 28 North Range 21 West, P.M.M., Flathead County,
Montana has petitioned for approval of the subdivision plat of said
property, and
WHEREAS, the proposed subdivision plat of said property is
subject to the provisions of Section 2.04, Subdivision Regulations
of the City of Kalispell, and
WHEREAS, the Kalispell City -County Planning Board and Zoning
Commission has recommended approval of the Preliminary Plat of the
Southfield Park (Haven Field) Subdivision, subject to certain
conditions and recommendations, and
WHEREAS, the City Council of the City of Kalispell at its
regular Council Meeting of June 15, 1998, reviewed the FRDO Report
#KSR-98-2, reviewed the recommendations of the Kalispell City -
County Planning Board and Zoning Commission, and found from the
Preliminary Plat, and evidence, that the subdivision is in the
public interest.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
KALISPELL, MONTANA AS FOLLOWS:
SECTION I. That the application of Richard A. Dasen, Sr.
for approval of the Preliminary Plat of the Southfield Park
(Haven Field) Subdivision, located in Section 20, Township 28
North, Range 22 West, P.M.M., Flathead County, Montana is
hereby approved subject to the following conditions:
1. That the development of the site will be in substantial
conformance with the approved Preliminary Plat which
shall govern the general location of the lots and
accesses.
2. That the Certificate of Subdivision Approval be obtained
from the Department of Environmental Quality for water
and sewer service to the lots.
EAwp\reslplats\havenfield.wpd -1-
3. That a letter from the Kalispell Public Works Department
shall be obtained which states that the proposed plans
and specifications, all improvements including pavement,
curbs, gutters, sidewalks, landscaping and drainage
systems have been reviewed and approved in accordance
with Kalispell's Design and Construction Standards and
have been constructed accordingly.
4. That an approach permit for the access onto Highway 93 be
obtained from the Montana Department of Transportation
and that the terms and conditions of the permit be met.
5. That an approach permit for access onto 18th Street East
and Third Avenue East be obtained from the Kalispell
Public Works Department and that terms and conditions of
the permit be met.
6. That a cross easement agreement be filed with the final
plat or made as a note of the face of the final plat
granting access to all lots within the subdivision by way
of the internal road and utility easements shown on the
plat.
7. That covenants be filed with the final plat which ensures
architectural compatibility among the development with
regard to architectural design of the buildings, signs,
color, materials, height and size.
8. That the number and location of fire hydrants within the
subdivisions be reviewed and approved by the Kalispell
Fire Chief.
9. That the preliminary plat shall be valid for a period of
three years from the date of approval.
SECTION II. The classification of said premises under the
Kalispell Zoning Ordinance shall not be
changed by the action.
SECTION III. That upon proper review and filing of the
final plat of said subdivision in the office
of the Flathead County Clerk and Recorder,
said premises shall be a subdivision of the
City of Kalispell.
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PASSED AND APPROVED BY THE CITY COUNCIL AND THE MAYOR OF THE CITY
OF KALISPELL, THIS DAY OF 1998.
William E. Boharski, Mayor
ATTEST:
Theresa White
Clerk of Council
E:hvp\res\plats\havenfield.wpd - 3 -
Flathead Regional Development Office
723 5th Avenue East - Room 414
Kalispell, Montana 59901
Phone: (406) 758-5980
Fax: (406) 758-5781
June 9, 1998
Glen Neier, Interim City Manager
City of Kalispell
P.O. Box 1997
Kalispell, MT 59903
Re: Preliminary Plat Approval for Southfield Park (Haven Field) Subdivision
Dear Glen:
Attached with this letter you will find staff report KSR-98-2 for Southfield Park
subdivision, a five lot commercial subdivision on the Haven Field site. Please
schedule this subdivision for review by the Kalispell City Council at their regular
meeting of June 15, 1998.
If you have any questions regarding this preliminary plat, call me at (406) 758-5980.
Sincerely,
Narda Wilson
Senior Planner
Attachments: Staff Report #KSR-98-2
Preliminary Plats
c/w att: Richard A. Dasen, Sr., 400 West Valley Drive, Kalispell, MT 59901
Jackola Engineering, 317 First Avenue East, Kalispell, MT 59901
H: \FRDO \LETTERS \ 1998 \ KSR98-2
Providing Community Planning Assistance To:
• Flathead County • City of Columbia Falls • City of Kalispell • City of Whitefish •
SOUTHFIELD PARK SUBDIVISION
FLATHEAD REGIONAL DEVELOPMENT OFFICE
SUBDIVISION REPORT #KSR-98-2
MAY 26, 1998
A report to the Kalispell City Council regarding a request for preliminary plat approval of
a five lot commercial subdivision in a B-2, General Business, zoning district.
BACKGROUND
A. Owner/Applicant: Richard A. Dasen, Sr.
400 West Valley Drive
Kalispell, MT 59901
(406)752-8490
Technical Assistance: Jackola Engineering
317 First Avenue East
Kalispell, MT 59901
(406)755-3208
B. Location: The property proposed for subdivision is commonly known as "Haven
Field" and is located on the southeast corner of Highway 93 South and 18th
Street East. The property can be described as Assessor's Tract 8AD located in
Section 20, Township 28 North, Range 21 West, P.M.M., Flathead County,
Montana.
C. Size: Total area:
4.410 acres
Lot 1:
1.184 acres
Lot 2:
0.651 acres
Lot 3:
0.696 acres
Lot 4:
0.870 acres
Lot 5:
1.009 acres
D. Nature of the Request: The applicants purchased this property from the City of
Kalispell which was sold for the purpose of commercial development and to
further the goals and objectives of the Airport Urban Renewal Plan. The money
received from the sale of this property is part of the financing mechanisms
outlined this plan for improvements to the City airport and to help finance the
relocation of the youth ballfields. The applicants would like to subdivide the
property into five lots which would be marketed and sold to independent parties.
Part of the consummation of the purchase of this property involved the execution
of a development agreement between the City and the developer (applicant).
Part of the terms of the development agreement with the City are that the
developer will construct over six million dollars ($6,229,700.) worth of
improvements on the property by January 1, 1999 or to pay the ad valorem taxes
on the agreed upon improvements of approximately $124,000. If only a portion
of the development has been completed, then the developer has agreed to pay the
City any difference between the amount of taxes actually generated by the project
and ad valorem amount. Attached with this staff report is a copy of the
development agreement executed between the developer and the City dated
February 11, 1998. The closing on the property took place in the summer of
1997. However, because of certain details contained in the development
agreement, its execution was delayed until the 1998 date.
It was the City's intent when executing that the development agreement with the
developer that there would be limits on the transfer of this property to third
parties. There is a provision in the agreement that the property cannot be
transferred without the prior written approval of the City. Further, that the City
shall be entitled to require that the proposed transferee have the qualifications
and financial responsibility to reasonably ensure that the obligations outlined in
the agreement can be met. The development agreement holds the developer
responsible for the payment in lieu of taxes and this obligation cannot be
transferred to a third party. This information is being provided in the staff report
simply to bring these issues to the fore, and is not intended to imply that it is the
developer's intent to circumvent any of the provisions of the agreement either in
spirit or in substance. It should also be noted that it is necessary for the
developer to subdivide the property in order that a lender may encumber a
portion of the property rather than the entire parcel.
As part of the overall development design, it is intended to allow shared access
and parking within the site which will be provide through cross easement
agreements so that the project functions as an integrated whole. Furthermore,
covenants for the development would require architecturally compatible
buildings and design as well as an overall sign plan for the development.
Covenants have not been submitted with the plat.
E. Existing Land Use: This property can be considered to be essentially
undeveloped. In the past it was used for ballfields for youth athletics. These
ballfields are in the process of being relocated to the new youth athletic complex
and most of the equipment and fencing have been removed. In the interim the
site has been used for the storage of some large fuel tanks. Technically, this use
does not comply with the B-2, general business, zoning associated with this
parcel and the tanks should be removed.
F. Adjacent Land Uses and Zoning: This area of Kalispell can be described as
general commercial in nature with a mix of retail, office, restaurants and hotels
in the immediate area as well as the Lions Park to the south and the City airport
to the west.
North: Gas station, convenience store and restaurants, B-2 zoning
East: City Service fuel facilities and offices, I-1 zoning
South: Lion Park and offices, B-2 zoning
West: Restaurant, hotel and casino, B-2 zoning
2
Zoning: The zoning for this property is B-2, a General Business zoning district.
The minimum lot size requirement for this district is 7,000 square feet. All of the
lots within the proposed subdivision exceed this minimum lot size and area
intended for uses which are consistent with the general business zoning.
Relation to Master Plan Map: This property lies within the Kalispell City -
County Planning jurisdiction and is designated on the master plan land use map
as commercial. Additionally, this property is part of the Airport Urban Renewal
Plan area which is intended to stimulate development and redevelopment of
property in the area to facilitate improvements to the City airport. This
subdivision is in compliance the master plan and urban renewal plan for the
area.
Utilities: This development will be served by full City services.
Water:
City of Kalispell
Sewer:
City of Kalispell
Electricity:
Pacific Power and Light (underground)
Telephone:
PTI Communications (underground)
Solid Waste:
City of Kalispell
Fire:
City of Kalispell
Schools:
School District #5, Russell School
Police.
City of Kalispell
REVIEW AND FINDINGS OF FACT
This application is reviewed as a minor subdivision in accordance with State statutory
review criteria and the Kalispell Subdivision Regulations.
A. Effects on health and Safety:
Fire: The risk of fire in this subdivision can be considered generally low because
this is an urban area, has good access, will have fire hydrants located within the
subdivision and the types of uses would not proposed for the site do not present
any significant threat of fire.
T2p.q aphy: The topography of the site is generally level. Development of the
site will give adequate consideration of drainage and vegetation of the setback
areas which will provide some on -site retention and absorption areas. Storm
sewer improvements will be made as part of the Highway 93 upgrade scheduled
for spring 2000 and they will be utilized to provide for stormwater drainage.
Roads: Primary access to the site will be from an existing access off of U.S.
Highway 93. An internal 25 foot roadway easement is indicated on the plat
which will provide a means of common access within the site. Limiting the
access to a single access onto Highway 93 reduces the potential for traffic
3
conflicts. The Montana Department of Transportation will require the developer
to obtain a new approach permit at the time of development. According to MDOT
the location and width of the proposed approach complies with the design plans
for Highway 93 and will not require significant modifications. Improvements to
Highway 93 are scheduled for spring of 2000.
Additionally, there are accesses to the site from 18th Street East and Third
Avenue East. Approaches onto these streets will also be limited to a single
access as indicated on the plat. Development of these approaches will require
review and approval by the Kalispell Public Works Department. Limiting the
number of accesses onto these streets reduces the potential safety hazards and
traffic conflicts associated with large volumes of traffic moving in and out of a
commercial complex of this nature.
B. Effects on Wildlife and Wildlife Habitat:
Minimal impacts to wildlife and wildlife habitat can be anticipated as a result of
this subdivision. The properties he within the urban boundaries of Kalispell and
it is anticipated that this area will continue to experience significant growth.
C. Effects on the Natural Environment:
Potential storm water runoff could present significant problems if not adequately
addressed. The developer will need to demonstrate to the Kalispell Public Works
Department that stormwater issues have been adequately addressed through
connection with the City's stormdrain system or through on -site retention or s
combination of both.
D. Effects on Local Services:
Sewer: Sewer service will be provided by the City of Kalispell. The developer will
have to extend the necessary lines as required by the Kalispell Public Works
Department. It is anticipated that only service lines will be required and sewer
hook up fees will be assessed at the time of connection. There is adequate
capacity with the Kalispell sewage treatment system to accommodate the
additional needs created by this subdivision.
Water: The City of Kalispell will provide water service to the lots in accordance
with the design specifications of the City of Kalispell. Water hook-up fees will be
assessed at the time of connection. There is adequate capacity within the
Kalispell water system to accommodate this proposed subdivision. A main
extension into the site will be required to create the necessary fire flows for
hydrants within the development.
Schools: This subdivision is within the boundaries of School District #5,
however, no impacts to the school system can be anticipated as a result of this
development because of its commercial nature.
4
Parks: Lions Park lies directly to the south of this subdivision. A boundary line
adjustment was done to create a 0.18 acre parcel adjoining this subdivision to
the south. This small parcel is actually the parking area for Lions Park and it is
the intent of the developer to keep this open for public access and to facilitate the
use of the park.
Police Protection: The site is served by the Kalispell Police Department. There
would be limited impacts on the police department and adequate service can be
provided. However, as the City grows there are cumulative impacts on the
department which need to be considered.
Fire Protection: This property is served by the City of Kalispell Fire Department.
Fire hydrants will be placed within the subdivision as part of the subdivision
approval process. The department will be able to adequate service this
development, however, there a have been cumulative effects on the department
as a result of the commercial and residential development in the city.
Refuse Disposal: Once the property is developed, the City of Kalispell will
provide solid waste disposal to the site. Adequate space at the County landfill is
available for the solid waste which will be generated by the subdivision.
Medical Services: Kalispell Regional Hospital is approximately three and a half
miles from the site. Kalispell ambulance service as well as ALERT are able to
provide service to this area. Access to the site is good.
E. Effects on Agriculture and Agricultural Water Users Facilities:
Commercial development is anticipated in this area. Because this is in an
established urban area, no impacts to agriculture or agricultural water users
facility are anticipated as a result of this subdivision.
F. Compliance with Master Plan
The Kalispell City -County Master Plan Map designates this area as Commercial.
The proposed subdivision complies with this land use designation. Additionally,
this development is taking place within an established commercial area and
meets the goals and objectives of the master plan by providing infill and
expansion of the existing commercial core. This subdivision is also located
within the Airport Urban Renewal Plan area, an area intended for development
and redevelopment of commercial, residential and industrial uses to a more
intensive land use than that which currently exists. The redevelopment of this
site will further the goals and objectives of the master plan with regard to
commercial development as well as the goals and objectives of the urban renewal
plan for redevelopment of existing properties to a more intensive use.
5
G. Compliance with Zoning Regulations
This property is zoned B-2, General Business, a district that requires a minimum
of 7,000 square foot for newly created lots. This district provides for a broad
range of general commercial uses including retail sales, restaurants, hotels and
motels, auto dealerships, professional and government offices as well as any
number of other general uses. This subdivision complies with the Kalispell
Zoning Ordinance both in the development standards and the uses intended for
the site.
H. Compliance with the Subdivision Regulations
The preliminary plat is in substantial compliance with the State and City
Subdivision Regulations.
The Flathead Regional Development Office would recommend that Kalispell City Council
adopt the Staff Report #KSR 98-2 as findings of fact and grant preliminary plat approval
for this subdivision subject to the following conditions:
1. That the development of the site will be in substantial conformance with the
approved preliminary plat which shall govern the general location of the lots and
accesses.
2. That the Certificate of Subdivision Approval be obtained from the Department of
Environmental Quality for water and sewer service to the lots.
3. That a letter from the Kalispell Public Works Department shall be obtained which
states that the proposed plans and specifications all improvements including
pavement, curbs, gutters, sidewalks, landscaping and drainage systems have
been reviewed and approved in accordance with Kalispell's Design and
Construction Standards and have been constructed accordingly.
4. That an approach permit for the access onto Highway 93 be obtained from the
Montana Department of Transportation and that the terms and conditions of the
permit be met.
5. That an approach permit for access onto 18th Street East and Third Avenue East
be obtained from the Kalispell Public Works Department and that the terms and
conditions of the permit be met.
6. That a cross easement agreement be filed with the final plat or made as a note of
the face of the final plat granting access to all lots within the subdivision by way
of the internal road and utility easements shown on the plat.
7. That covenants be filed with the final plat which ensures architectural compatibility
among the development with regard to architectural design of the buildings, signs,
color, materials, height and size.
S. That the number and location of fire hydrants within the subdivisions be reviewed
and approved by the Kalispell Fire Chief.
9. That the preliminary plat shall be valid for a period of three years from the date of
approval.
M
DEVELOPMENT AGREEMENT
This Agreement made as of r / 1998, by and between the City of
Kalispell, a municipal corporation, hereinaf3 CITY, and Richard A. Dasen; with his
principal place of business at 1701 Highway 93 South in Kalispell, Montana, hereinafter
DEVELOPER:
WITNESSETH:
Whereas, the CITY is a general powers city, existing and organized under the
constitution of the State of Montana; and
Whereas, the CITY has elected to exercise the powers of an urban renewal agency,
pursuant to Title 7, Chapter 15, Parts 42 and 43, Montana Code Annotated as amended (the
"Act") and Ordinance No. 1242, as amended adopted by the City Council on July 1, 1996;
and
Whereas, Ordinance No. 1242 adopted the Kalispell City Airport/Athletic Complex
Redevelopment Plan Analysis as the urban renewal plan (the Redevelopment Plan) for the
urban renewal area known as the Kalispell City Airport/Athletic Complex Redevelopment
Area (the Redevelopment Area); and
Whereas, Ordinance No. 1242 states that in order to implement and effectuate the
Redevelopment Plan, it will be necessary for the CITY to take certain actions with reference
to minimizing hazards to navigation, developing the airport in accordance with an airport
layout plan, increasing development opportunities on nearby properties, promoting
compatible land use in and around the airport, establishing a funding mechanism for airport
properties, and establishing a priority schedule for plan implementation; and
Whereas, the Redevelopment Plan, as adopted and implemented, contains a tax
increment financing provision coextensive with the Redevelopment Area; and
Whereas, Ordinance No. 1242 approved as an urban renewal project the sale of Haven
Field, to be located within the Redevelopment Area (the Project), and authorized entering
into a development agreement with a developer in order to accomplish the development of
the Project; upon terms and conditions consistent with the Act, the Redevelopment Plan, and
Ordinance No. 1242; and
Whereas, DEVELOPER submitted a proposal to purchase said Haven Field and
develop said property in accordance with the Redevelopment Plan,
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
obligations set forth in this Agreement, the parties hereto agree as follows:
IAwp\outlaw.wpd Page 1 of 16
ARTICLE 1
Definitions
In this Agreement, unless a different meaning cleariy appears from the context:
"Act" means Montana Code Annotated Title 7, Chapter 15,_ Parts 42 and 43, as
amended
"Agreement" means this Agreement, as the same may be from time to time modified,
amended or supplemented.
"Assessed Valuation" means the value of real property as determined by the
Department of Revenue in accordance with Montana Code Annotated against which real
property tax is imposed.
"City" means the City of Kalispell, Montana and for purposes of administering this
agreement shall also mean the City Manager.
"Construction Plans" means the plans, specifications, drawings, and related
documents for the construction work to be performed by the DEVELOPER on the Project
Property, which (a) shall be at least as detailed as the plans, specifications, drawings and
related documents which are submitted to the building official of the CITY and (b) shall
include at least the following: (1) site plans; (2) foundation plans; (3) basement plans;
(4)elevations on all sides; (5) landscaping plan; (6) grading plan; and (7) utility plan.
"Developer" means Richard A. Dasen.
"Project" means the Project described in Article 2.
"Project Area" means that tract of land bounded by 18" Street West on the North, 3'd
Avenue East on the East, Lions Park Street on the South and U.S. Highway 93 on the West.
"Project Property" means the real property in the Project Area on which the Project
will be constructed, the legal description of which is shown on Exhibit A.
"Redevelopment Area" means those areas of Kalispell which have been designated
by CITY as blighted and therefore desirable for rehabilitat~iom
"Redevelopment Plan" means the CITY'S overall plan for promoting rehabilitation
of City areas found to be blighted.
IAwploudaw.v,pd PW 2 of t6
"Section" means a Section of this Agreement, unless used in reference to Montana
Code Annotated.
"Site Plans" means the plans to be submitted by the DEVELOPER showing the
Project Area and the Project which will include all on -site improvements, off -site
improvements, and the infrastructure improvements.
"State" means the State of Montana.
"Tax Increment" means that portion of the real estate taxes paid with respect to the
Redevelopment Property which is remitted to the CITY as tax increment pursuant to the Tax
Increment Financing provisions of the Montana Urban Renewal Law.
"Tax Increment Financing Plan" means the Tax Increment Financing Plan for Tax
Increment Financing by the City Council and dated July 1, 1996.
"Unavoidable Delay" means a failure or delay in a party's performance of its
obligations under this Agreement, or during any cure period specified in this Agreement
which does not entail the mere payment of money, not within the party's reasonable control,
including but not limited to acts of God, governmental agencies, the other party, strikes,
labor disputes, fire or other casualty, or lack of materials, provided that within 10 days after
a party impaired by the delay has knowledge of the delay it shall give the other party notice
of the delay and the estimated length of delay, and shall give the other party notice of the
actual delay within 10 days after the cause of the delay has ceased to exist. The parties shall
pursue with reasonable diligence the avoidance and removal of any such delay. Unavoidable
delay shall not extend performance of any obligation unless the notices required in this
definition are given as herein required.
ARTICLE 2
Representations and Warranties
Section 2.1. By CITY. CITY makes the following representations to
DEVELOPER:
(a) The CITY, under the Act and Ordinance No. 1242 has the power and
authority to enter into this Agreement and carry out the obligations hereunder.
(b) The Project is an "urban renewal project' within the meaning of the Act
and has been approved by the City Council in accordance with the terms of the
Act and Ordinance No. 1242.
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(c) The Urban Renewal Plan, as approved by Ordinance No. 1242, contains
a provision for tax increment financing for the Redevelopment Area and the
incremental increase in taxes based on the value of ad valorem property within
the area after the 1996 base year shall be collected, segregated by the County
Treasurer, and transferred to the City for the benefit of the Redevelopment
Area.
(d) The CITY has determined that sewer and water utilities necessary to
serve the Project are available within the public rights-of-way'adjaccnt to the
Project Area. The Project Area has adequate access from 18& Street west and
3'd Avenue East and, subject to Montana Department of Transportation
approval, from U.S. Highway 93 South.
(e) The CITY advises that the Redevelopment Area is subject to building
and use restrictions imposed pursuant to the Kalispell Zoning Ordinance,
including, but not limited to, prohibitions on the display of billboards and/or
off -premises signs.
Section 2.2. By DEVELOPER. DEVELOPER represents and warrants that:
(a) DEVELOPER, Richard A. Dasen; has .the power to enter into this
Agreement, and has duly authorized the execution, delivery and performance
of this Agreement.
(b) DEVELOPER is ready, willing and able to acquire the Redevelopment
Property from the CITY. Richard A. Dasen, a principle of the DEVELOPER
shall acquire title to the Project Property .
(c) DEVELOPER will, subject to unavoidable delays, construct, operate
and maintain on the Project Property a retail and commercial development
described in the Site Plans, together with all related on -site improvements,
including, but not limited to, off-street parking, landscaping, on -site utilities
and any off -site infrastructure improvements necessary to properly serve the
Project Area (the Project). The parties agree that notwithstanding the Site
Plans, the Project is in the formative stages and may change in both timing and
occupancy during the development process; however, any and all changes
shall be subject to approval by the CITY.
(d) DEVELOPER estimates that the cost of constructing the Project as
described in (c) is $6,229,700.00 based on the following estimates:
L\wpbutlaw.wpd Page 4 of 16
Description of Project Estimated Cost
Land Acquisition S 738,700.00
Site Improvements S 560,000.00
Building Construction 54,590,140.00
Cost of Fixtures, Furniture, Equipment
and Inventory S 340,860.00
TOTAL 16,229,700.00
(e) DEVELOPER estimates, based upon information available to it and the
projected cost of constructing the Project, that the Assessed Valuation of the
improved real property constituting the Project, inclusive of furniture, fixtures,
equipment, and other taxable personal property will be at least $6,229,700.00.
The parties understand that the actual Assessed Valuation of the
DEVELOPER'S portion of the Project as determined by the Montana
Department of Revenue may be greater or lesser than the estimate.
(f) DEVELOPER has obtained, or has available to it, sufficient finding to
complete the construction of the first phase (City Service Expansion) of the
Project and agrees to diligently pursue financing for construction of
subsequent phases of the Project.
ARTICLE 3
Infrastructure Improvements
CITY and DEVELOPER agree that there are no significant modifications or
upgrading of off -site improvements necessary for construction of the Project. However, if
any modifications or upgrade of off -site improvements are required, DEVELOPER agrees
to construct any such improvements as part of the Project
ARTICLE 4
Lion Park Street
The CITY shall cause to have re -surveyed the Project Property so as to include the
undedicated and undeeded street commonly known as Lion Park Street. DEVELOPER shall
design appropriate access and parking arrangements to complement and encourage the public
use of Lions Park, and shall grant to the CITY an easement of ingress and egress for the
1A%pbut1aw.wpd Page 5 of 16
purpose of maintaining a sewer service to the Lion Paris Visitor's Center.
ARTICLE 5
Construction of Project
Section 5.1. Site Plans and Construction Plans. DEVELOPER shall submit
Site Plans and Construction Plans to the CITY prior to obtaining any building permits. Site
Plans shall depict the entire Project Area and shall show the location of the the
Infrastructu a Improvements and other items required by this Agreement to be shown therein.
The Construction Plans shall provide for the construction of the Project in conformity with
the Redevelopment Plan, the Site Plans, this Agreement, and all applicable federal, state and
local laws and regulations. The CITY shall approve the Construction Plans in writing >, in
the reasonable discretion of the CITY, the Construction Plans: (a)substantially conform to
the Plans and subsequent amendments approved by the CITY; (b) conform to the teens and
conditions of this Agreement; (c) conform to the terms and conditions of the Redevelopment
Plan; (d) conform to all applicable federal, state and local laws, ordinances, rules and
regulations; (e) are adequate to provide for construction of the Project; and (f) no Event of
Default has occurred.
No approval by the CITY of the Construction Plans shall relieve the DEVELOPER
of the obligation to comply with the terms of this Agreement, the terms of the
Redevelopment Plan, applicable federal, state and local laws, ordinances, rules and
regulations, or to properly construct the Project. No approval by the CITY shall constitute
a waiver of an Event of Default. Any disapproval of the Site Plans and Construction Plans
shall set forth the reasons therefore, and shall be made within 30 days after the date of their
receipt by the CITY. If CITY rejects the Site Plans or Construction Plans in whole or in part,
DEVELOPER shall submit new or corrected Site Plans and Construction Plans within 30
days after written notification to DEVELOPER of the rejection. The provisions of this
Section relating to approval, rejection, and re -submission of corrected Site Plans and
Construction Plans shall continue to apply until the Site Plans and Construction Plans have
been approved by the CITY. If the CITY rejects the corrected Site Plans or Construction
Plans, then the DEVELOPER shall have the right to withdraw from this contract and to fully
terminate all of its duties and obligations under this Agreement.
Section 5.2. Construction of the Project.
(a) Subject to unavoidable delays, DEVELOPER will construct the Project
without encroachment onto any other property all in accordance with the Site
Plans, the Construction Plans. DEVELOPER will -be responsible for the
supervision of and completion of the on -site improvements. Neither party shall
exercise any control over the other regarding their respective areas of
work and division of responsibilities although the parties agree to coordinate
their activities to assure maximum efficiency of the construction process.
I:\wp\outlaw.wpd Page 6 of 16
(b) All work with respect to the Project shall be in substantial conformity
with the Construction Plans approved by the CITY. DEVELOPER shall
promptly begin and diligently complete all on -site improvements.
DEVELOPER shall make reports, in such detail and at such tunes as may
reasonably be requested by the CITY, as to the actual progress of
DEVELOPER with respect to construction of the on -site improvements.
(c) DEVELOPER shall not interfere with, or construct any improvements
over, any public street or utility easement without the prior written consent of
the CITY. All connections to public utility lines and facilities shall be subject
to approval of the CITY and any private utility company involved All street
and utility installations, relocations, alterations and restorations shall be made
at DEVELOPER'S expense. DEVELOPER, at its own expense, shall replace
any public facilities or utilities damaged during construction of the Project.
Section 5.3. Certificate of Completion.
(a) Promptly after completion of the Project, in accordance with this
Agreement, DEVELOPER should apply for a Certificate of Completion. It
will be incumbent on DEVELOPER to provide the CITY with a certificate of
substantial completion from DEVELOPER'S architect, and the CITY shall
furnish DEVELOPER with an appropriate Certificate of Completion as
conclusive evidence of satisfaction and termination of the agreements and
covenants of this Agreement (excepting those covenants and restrictions which
expressly survive the filing of the Certificate of Completion, and except those
obligations of the DEVELOPER described in Section 222. hereof which
pertain to the obligations of DEVELOPER to construct the Project).
(b) If the CITY shall refuse or fail to provide a Certificate of Completion,
the CITY shall, within 15 days after the DEVELOPER provides the architect's
certificate referenced in Section 5.3.(al provide the DEVELOPER with a
written statement specifying in what respect DEVELOPER has failed to
complete the Project in accordance with this Agreement, or is otherwise in
default, and shall specify what measures or acts will be necessary, in the
opinion of the CITY, for DEVELOPER to obtain the Certificate of
Completion.
Section 5.4. Phasing of Completion. Notwithstanding any other term of this
Agreement, the parties specifically agree that the Project can be performed in phases. Thus,
upon completion of a discreet portion of the Project, DEVELOPER may proceed to obtain
a Certificate of Completion for that portion of the Project pursuant to Section 5.3.
Thereafter, the provisions and restrictions of Section 8.2 shall no longer apply to the
completed portion.
I:Xwploutlaw.wpd Page 7 of 16
Section S.S. CITY'S Remedy for Failure to Construct. DEVELOPER
recognizes that the CITY intends to utilize ad valorem tax revenue generated by the Project
to finance public improvements to the Kalispell City Airport and other infrastructure
improvements which will be of public benefit. It is contemplated that the Project property
will generate annual tax revenue to the City of Kalispell in the amount of S 124,000.00 upon
completion of the Project•, exclusive of city or county special assessments. DEVELOPER,
therefore, covenants to pay to the CITY any difference between the amount of tax actually
generated by the Project Property, including any portion of &e Project transferred to mwdw
owner, if permitted as hereafter set forth in Section 5.4 and Section 8, and the amount
contemplated by this Agreement for a period of ten years commencing January 1, 1999.
Payment under the provisions of this paragraph shall be made directly to the CITY, after
certifying the tax generated by The Project through the City Finance Department.
ARTICLE 6
Defense of Claims, Insurance: Developer's Risk
Section 6.1. Defense of Claims. DEVELOPER shall indemnify and hold harmless
the CITY and their respective officers, employees and agents for any loss, damages and
expenses (including attorney's fees) in connection with any claim or proceeding arising from
damages or injuries received or sustained by any person or property by reason of any actions
or omissions of DEVELOPER or its contractors, agents officers or employees under this
Agreement, other than claims or proceedings arising from any negligent or unlawful acts or
omissions of the CITY or their contractors, agents, officers, or employees. Promptly after
receipt by the CITY of notice of the commencement of any action in respect of which
indemnity may be sought against the DEVELOPER under this Section 6.1., the CITY will
notify the DEVELOPER in writing of the commencement thereof; and, subject to the
provisions hereinafter stated, the DEVELOPER shall assume the defense of such action
(including the employment of counsel, who shall be counsel satisfactory to the CITY, and
the payment of expenses) insofar as such action shall relate to any alleged liability in respect
of which indemnity may be sought against the DEVELOPER. The CITY shall have the right
to employ separate counsel in any such action and to participate in the defense thereof; but
the fees and expenses of such counsel shall not be at the expense of the DEVELOPER unless
the employment of such counsel has been specifically audmrized by the DEVELOPER The
omission to notify the DEVELOPER as herein provided writ not relieve it from any liability
which it may have to any indemnified party pursuant hereto, otherwise than under this
section.
Section 6.2. Insurance.
(a) DEVELOPER will provide the following insurance at the time it
applies for the necessary building permits for the project and will maintain
I:\wploatfaw.wpd Page 9 of 16
such insurance at all times during the process of constructing the Project, and
at the request of the CITY will furnish the CITY with copies of and proof of
payment of premiums on the following insurance:
(i) Builder's risk insurance, written on the so-called "Builder's
Risk ---Completed Value Basis", in an amount equal to W/o of the
replacement cost of the Project at the date of completion, naming the
CITY as an additional insured, with coverage on the so-called "all
risk", non- form of .�
Win$ Po�Y .
(ii) Comprehensive general public liability insurance, including
personal injury liability (with employee exclusion deleted) and
automobile insurance, including owned, non -owned and hired
automobiles, against liability for injuries to persons and/or property
with respect to the Redevelopment Property, in the minimum amount
for each person of $750,000 and $1,500,000 for each occurrence,
endorsed to show the CITY as an additional insured, and
(W) Worker's Compensation insurance in compliance with all
statutory requirements.
The policies of insurance required under clauses (i), (ii), and (iii) above shall be in form and
content satisfactory to the CITY and shall be placed with financially sound and reputable
insurers licensed to transact business in the State of Montana. The policies shall contain an
agreement of the insurer to give not less than 30 days advanced written notice to CITY in the
event of cancellation of such policy or change affecting the coverage.
(b) The provisions herein with respect to insurance of the Project shall terminate at such
time as DEVELOPER has received a Certificate of Completion under Section 5.3.
ARTICLE 7
Payment of Taxes
Section 7.1. Taxes. DEVELOPER shall pay when due all real estate taxes and
installments of special assessments payable on the Project Property and any other property
the DEVELOPER owns within Flathead County. DEVELOPER further agrees not to
contest the assessed valuation of the Project Property, inclusive of furniture, fixtures,
equipment, and other taxable personal property up to $6,229,700.00 and further not to protest
the taxes on such property for the first 5 years after completion.
Section 7.2. In Lieu of Payment. DEVELOPER further agrees to make the payment
in lieu of taxes contemplated in Section S.S.
LX%pbu w.wpd Page 9 of 16
ARTICLE 8
Prohibitions Against Assignment and Transfer
Section 8.1. Transfer of OwnerssW. The DEVELOPER recognizes that a transfer of
a controlling interest in the DEVELOPER or any other act of transaction resulting in a
significant change in the ownership are of particular concern to the CITY. Subject to
subsection (A), below, prior to completion of the Project as certified by the CITY, except in
the case of death or incompetency of the DEVELOPER, (a) there shall no transfer of any
interest of the DEVELOPER, (b) nor shall dwre be or be suffered to be by DEVELOPER,
any other similarly significant change in ownership of DEVELOPER with respect to the
identity of the party in control of DEVELOPER or the degree thereof by any other method
or means, without consent of the CITY, which shall not unreasonably withheld.
A) Notwithstanding Section 8.1 to the contrary, the CITY recognizes that
DEVELOPER, the sole initial member of the DEVELOPER, intends to
transfer to third parties interest in the Project Property. CITY hereby consents
to such transfer without the need for disclosure of the identity or financial
strength of the participants in such group, provided that i) Richard A. Dasen
shall remain a principal of any third party group, ii) Richard A. Dasen shall
guaranty, and by his signature hereon, hereby guarantees, all obligations of the
DEVELOPER to the CITY under this Agreement, and such guarantee shall not
be affected by any change in control of DEVELOPER.
Section 8.2. Transfer of Property and Assi nment DEVELOPER has not made and
will not make, or suffer to be made, any total or partial sale, assignment, conveyance lease
or other transfer, with respect to this Agreement or the Project Property or any part thereof
or any interest therein, or any contract or agreement to do any of the same, without the prior
written approval of the CITY, which approval shall not unreasonably withheld or delayed;
provided however, DEVELOPER may enter into a long term lease of the Project Property
to third parties, and CITY hereby consents to such Lease, and DEVELOPER may place a
mortgage or Deed of Trust upon the Project Property to secure construction financing and
takeout financing and CITY hereby consents to such mortgage or Deed of Trust. The CITY
shall be entitled to require as conditions to any such approval that; (i) the proposed transferee
have the qualifications and financial responsibility, as reasonably determined by the CITY,
necessary and adequate to fulfill the obligations undertaken in this Agreement by
DEVELOPER, (ii) the proposed transferee, by recordable instrument satisfactory to the
CITY shall, for itself and its successors and assigns, assume all of the obligations of
DEVELOPER under this Agreement No transfer of; or change with respect to, ownership
of the Project Property or any part thereof; or any interest therein, however consummated or
occurring and whether voluntary or involuntary, shall operate legally or practically, to
deprive or limit the CITY of or with respect to any rights or remedies or controls provided
in or resulting from this Agreement with respect to the Project Property and the construction
1:lwptout1aw.wpd Page 10 of 16
of the Project that the CITY would have had, had there been no such transfer or change.
There shall be submitted to the CITY for review of an legal documents relating to the
transfer.
In the absence of specific written agreement by the CITY to the contended to relieve
DEVELOPER, or any other party bound in any way by this Agreement, or otherwise with
respect to the construction of the Project, from any of its obligations with respect thereto.
Section 8.3. Information as to Ownership of DEVELOPER. Except as provided in
Section 8.1(AX above, DEVELOPER will promptly notify fe CITY of affy changes in the -
ownership of DEVELOPER, or with respect to the identity of the parties in control of
DEVELOPER or the degree thereof of which it has beta notified or otherwise had
knowledge. Except as provided in Section 8.1(A), about, DEVELOPER shall, at such time
or times as the CITY may request, furnish the CITY with a complete statement, subscribed
and sworn to by DEVELOPER, setting forth all the owners of DEVELOPER and the extent
of their respective holdings.
Section 8.4. Termination of Limitations on Transfer_ All provisions contained in this
Article 8 with respect to limitations on the ability of the DEVELOPER to transfer the Project
Property or the Project, or any portion thereof as well as any information as to ownership
under Section 8.3. shall terminate with respect to the Project at such time as a Certificate of
Completion has been issued by the CITY under Section 53 of this Agreement with respect
to the Project. All provisions contained in this Article 8 with respect to limitations on the
DEVELOPER making changes in its ownership structure shall terminate at such time as a
Certificate of Completion has been issued pursuant to Section 5.3 with respect to all the
Project.
ARTICLE 9
Events of Default
Section 9.1. Events of Default. The following shall be "Events of Default" under
this Agreement and the term "Event of Default" shall mean, whenever it is used in this
Agreement (unless the context otherwise provides), any one or more of the following events
which occurs prior to the issuance of the Certificate of Completion by the CITY under
Section 5.3 of this Agreement with respect to the Project and continues for more than 30
days after notice by the CITY to DEVELOPER of such de&Wt (and the term "default" shall
mean any event which would with the passage of time or giving of notice, or both, be an
"Event of Default" hereunder):
(a) Failure of DEVELOPER to construct phase one (City Service Center)or
to diligently pursue development of subsequent phases of the Project.
4J
(b) Failure of DEVELOPER to furnish the Site Plans or Construction Plans
1Awp\mtdaw.wpd Page 11 of 16
for phase one (City Service Center) or subsequent phases.
(c) Failure of DEVELOPER to pay real estate taxes or in lieu thereof, the
payment contemplated in Section 5.5.
(d) Failure of DEVELOPER to observe and perform any other covenant,
condition, obligation or agreement on its part to be observed or performed
hereunder.
(e) If DEVELOPER shall admit in writing its inability to pay its debts
generally as they become due, or shall file a petition in bankruptcy, or shall
make an assignment for the benefit of its creditors, or shall consent to the
appointment of a receiver of itself or of the whole or any substantial part of the
Redevelopment Party.
(f) If DEVELOPER shall file a petition or answer seeking reorganization
or other arrangement under the federal bankruptcy laws.
(g) If DEVELOPER, on a petition in bankruptcy filed against it, be
adjudicated a bankrupt, or a court of competent jurisdiction shall enter an
order or decree appointing, without the consent of the DEVELOPER, a
receiver of all or substantially all of its property, or approve a petition seeking
reorganization or arrangement under the federal bankruptcy laws, and such
adjudication, order or decree shall not be vacated or set aside or stayed within
60 days from the date of entry thereof.
(h) If DEVELOPER is in default under any Mortgage and fails to cure any
such default within the time period provided for in the Mortgage.
Section 9.2. Remedies on Default. Whenever any Event of Default referred to
in Section 9.1 occurs, the CITY may take any one or more of the following actions:
(a) Suspend its performance under this Agreement until it receives
assurance from DEVELOPER, deemed adequate by the CITY, that
DEVELOPER will cure its default and continue its performance under this
Agreement.
(b) Terminate all rights of DEVELOPER under this Agreement.
(c) Withhold the Certificate of Completion.
(d) Take whatever action at law or in equity may appear necessary or
desirable to the CITY to enforce performance and observance of. any
1Awp\out1aw.wpd Page 12 of 16
Section 9.3. No Remedy Exclusive. No remedy herein conferred upon or
reserved to the CITY is intended to be exclusive of any other available remedy or remedies,
but each and every such remedy shall be cumulative and shall be in addition to every other
remedy given under the Agreement or now or hereafter existing at law or in equity or by
statute. No delay or omission to exercise any right or power accruing upon any default shall
impair any such right or power or shall be construed to be a waiver hereof; but any such right
and power may be exercised from time to time and as often as may be deemed expedient.
In order to entitle the CITY or DEVELOPER to exercise any remedy reserved to it, ft shall
not be necessary to give notice, other than such notice as may be required under this
Agreement.
Section 9.4. Waivers. All waivers by the CITY, shall be in writing. If any
provision of this Agreement is breached by either party and thereafter waived by the other
party, such waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other concurrent, previous or subsequent breach hereunder.
ARTICLE 10
Additional Provisions
Section 10.1. Conflict of Interests: the City Representatives Not Individually Liable.
No member, official, employee, or consultant or employees of the consultants of the CITY
shall have any personal interest, direct or indirect, in this Agreement, nor shall any such
member, official, consultant or the consultant's employees or employee participate in any
decision relating to this Agreement which affects his or her personal interests or the interests
of any corporation, partnership, or association in which he or she is directly or indirectly
interested. No member, official, consultant or the consultant's employees, or employee of
the CITY shall be personally liable to DEVELOPER, or any successor in interest, in the
event of any default or breach by the CITY or for any amount which may become due to
DEVELOPER or successor or on any obligations under the terms of this Agreement.
Section 10.2. Equal Employment Opportunity; DEVELOPER, for itself and its
successors and assigns, agrees that during the construction of the minimum improvements
it will comply with any applicable affirmative action and non-discrimination laws or
regulations.
Section 10.3. Restrictions on Use. DEVELOPER agrees for itself, and its successors
and assigns, and every successor in interest to the Project Property, or any part thereof; that
DEVELOPER, and such successors and assigns, shall devote the Project Property to, and
only to and in accordance with, the uses specified in the Redevelopment Plan and this
Agreement, and shall not discriminate upon the basis of race, color, creed, sex or national
origin in the sale, lease, or rental or in the use of occupancy of the Redevelopment Property
1Awplaudaw.wpd Pale 13 of 16
or any improvements erected or to be erected thereon, or my part thereof.
Section 10.4. Titles of Articles and Sections. Any titles of the several parts,
Articles, and Sections of this Agreement are inserted for convenience of reference only and
shall be disregarded in construing or interpreting any of its provisions.
Section 10.5. Notices and Demands. Except as otherwise expressly provided in
this Agreement, a notice, demand, or other communication under this Agreement by either
party to the other shall be sufficiently given or delivered if it is dispatc*dV r s `V°'
certified mail, postage prepaid, return receipt requested, or delivered personally; and
(a) in the case of the DEVELOPER, addmssed to or delivered personally
to DEVELOPER, at 1701 Highway #93 Soak Kalispell, MT 59901.
(b) in the case of the CITY, addressed or delivered personally to the City
Manager, City of Kalispell, PO Box 1997, Kafispell, Montana 59903-1997, or
at such other address with respect to either such party as that Pay may, from
time to time, designate in writing and forward to the other as provided in this
Section.
Section 10.6. Counterparts. This Agreement is executed in any number of
counterparts, each of which shall constitute one and the sme instrument
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as the date first above written.
/ / / / / / (END OF PAGE 14)
1Awpiout1aw.wpd Page 14 of 16
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as the date first above written.
CITY OF KALISPELL, a municipal corporation
By 2-9..
City Manag�r
(SEAL)
By —
uac�
� "?O-m
1 �_._.
IAwplot t w.wpd Page 1S of 16
STATE OF MONTANA )
ss
County of Flathead )
On this Ad- day of 1998, before me, a Notary Public in and
for the State of Montana, personally appeartd Clarence Krepps, and Debbie Gifford, known
to me to be the City Manager and Clerk of Council of the City of Kalispell, a municipality,
that executed the within instrument, and acknowledged that such City Manager and Clerk
of Council subscribed, sealed and delivered said instrument as the free and voluntary act of
said municipality, for the uses and purposes therein set forth, and that they were duly
authorized to execute the same on behalf of said municipality.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal,
the day and year first above written.
Notary Public, State of Montana
Residing at Kalispell, Montana
My Commission Expires
STATE OF MONTANA )
ss
County of Flathead )
On this G day of Febrcrat V , 1998, before me, a Notary Public in and
for the State of Montana, personally appeared Richard A. Dasen, known to me to be the
person, that executed the within instrument, and acknowledged that he subscribed, sealed
and delivered said instrument as his free and voluntary act, for the uses and purposes therein
set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal,
the day and year first above written.
aAAig a • #Wm
Noiary Public, State of Montana
Residing at Kalispell, Montana
My Commission Expires a - 13 - 01
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