7. Center Street Plaza Development AgreementLOAN AND DEVELOPMENT
AGREEMENT
This Loan and Development Agreement, made this day of
, 1998, by and between CMA, L.L.P., a Montana
limited liability partnership, hereinafter PARTNERSHIP and the CITY
OF KALISPELL, a municipal corporation, hereinafter CITY:
W I T N E S S E T H:
WHEREAS, the City of Kalispell, pursuant to Title 7, Chapter
15, Parts 42 and 43, Montana Code Annotated, has enacted the
Kalispell Downtown Redevelopment Plan, Ordinance #933 on the 10'
day of September, 1979, and
WHEREAS, as part of the Kalispell Downtown Redevelopment Plan
the City Council of the City of Kalispell determined that the
"project area" was blighted and that extensive rehabilitation was
necessary within the "project area" to facilitate proper
development within the area, and
WHEREAS, under Title 7, Chapter 15, Part 42 and 43 MCA, and
the Kalispell Downtown Redevelopment Plan, the City is authorized
to eliminate and prevent the spread of blight by encouraging the
redevelopment of land by private enterprise, and
WHEREAS, PARTNERSHIP has made a request to utilize funds
available to the City under the Kalispell Downtown Redevelopment
Plan to improve infrastructure and make certain on -site
improvements to property located on Lots One, Two and Three, Block
31, Kalispell Original Townsite, and
WHEREAS, the assistance requested and granted pursuant to this
Agreement shall consist of a grant in the amount of Sixteen
Thousand One Hundred Sixty-six Dollars ($16,166.00) and a loan in
the amount of Seventy Thousand Five Hundred Twenty-nine Dollars
($70,529.00), and
WHEREAS, PARTNERSHIP'S proposal has been reviewed by the
Community Development Department and the City Council.
NOW, THEREFORE, in consideration of the premises and mutual
covenants hereinafter contained, the parties hereto agree as
follows:
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I.
LOAN AGREEMENT
SECTION 1.1. Amount and Source of Loan
The City does hereby agree to lend to the Partnership, a
principal amount of Seventy Thousand Five Hundred Twenty-nine
Dollars ($70,529.00) in accordance with and subject to the terms
and conditions stated herein, and the Partnership shall execute to
the City a Note evidencing said obligation, a copy of the form of
such Note is attached hereto as Exhibit "A" and by this reference
incorporated herein. Contemporaneously with the execution of said
Promissory Note the parties shall execute a Mortgage whereby the
interest of the Partnership in said property and its improvements
shall be Mortgaged to the City to secure the Promissory Note set
forth in Exhibit "A". A copy of the form of said Mortgage which the
Partnership shall execute is attached hereto as Exhibit "B" and by
this reference made a part hereof.
SECTION 1.2. Repayment of Loan
The Partnership agrees to pay as loan repayments on each
payment date an amount equal to the interest and principal, payable
on the note on said payment date. In any event, the loan repayments
shall at all times be sufficient to pay all principal of and
interest on the note as such principal and interest become due, at
maturity, upon prepayment, acceleration or otherwise. The
obligation of the Partnership to repay the loan hereunder shall
commence as of the date of the note.
All loan repayments shall be applied first to interest due on
the outstanding principal balance of the loan and thereafter in
reduction of said principal balance.
Each payment by the Partnership under this Section shall be
made directly to the City at its principal office, City of
Kalispell, 312 First Avenue East, Kalispell, Montana. In the event
the Partnership should fail to make any of the payments required
under this Section, the item showing default shall continue as an
obligation of the Partnership until the amount in default shall
have been paid in full, and shall bear interest to the extent
permitted by law at the rate then borne by the note.
SECTION 1.3. Purpose of Loan
The parties hereto agree that the purpose of said loan to the
Partnership is to enable the Partnership, and said Partnership
hereby agrees, to improve, pave and landscape Lots One, Two and
Three, Block 31, Kalispell Original Townsite, to provide for a
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parking lot to be used by the Partnership and the tenants occupying
the building commonly known and referred to as the Center Street
Plaza at a minimum expenditure of Seventy Thousand Five Hundred
Twenty-nine Dollars ($70,529.00).
SECTION 1.4. Loan Documents — Applicability
Term of loan, interest, repayment schedule and security shall
be as set forth in the Note and Mortgage, Exhibits A and B
respectively.
SECTION 1.5. Loan Proceeds
The parties agree that the Loan Proceeds of Seventy Thousand
Five Hundred Twenty-nine Dollars ($70,529.00) shall be solely used
for the purpose of partially funding the construction of a parking
lot and other amenities by the Partnership on Lots 1, 2 and 3,
Block 31, Kalispell Original Townsite. The City shall disburse to
the Partnership the Loan Proceeds immediately upon the Partnership
executing simultaneously this Agreement, the Note and the Mortgage.
SECTION 1.6. Disbursement of Proceeds.
The City upon the execution of this Loan Agreement, the Note,
and the Mortgage by the Partnership agrees to disburse the entire
amount of the Loan proceeds or the amount of Seventy Thousand Five
Hundred Twenty-nine Dollars ($70,529.00) for the use of the
Partnership pursuant to the terms of this agreement.
SECTION 1.7. Covenant of Partnership to Construct
The Partnership covenants and agrees to construct on Lots 1,
2 and 3, Block 31, Kalispell Original Townsite, a parking lot and
other amenities for use by the partnership and their tenants in the
Center Street Plaza and to complete said construction on or before
the 15t' day of September, 1999. The Partnership represents that the
construction of the parking lot is necessary to fully utilize and
to comply with Chapter 27, Section 26, Kalispell Zoning Ordinance.
The Partnership further covenants and agrees that the Partnership
shall comply with all laws and ordinances of the City of Kalispell
concerning the construction of parking facilities and will use its
best efforts to complete construction in a timely manner.
SECTION 1.8. Event of Default
Any one or more of the following events is an Event of Default
under this agreement:
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a) If the Partnership shall fail to make any Loan
Repayment required under Section 1.6. on the date that
the payment is due.
b) If the Partnership shall fail to observe or perform in
any material respect any other covenant, condition or
agreement on its part under this Agreement.
c) If the Partnership shall file a petition in bankruptcy
or reorganization or for an arrangement pursuant to any
present or future federal bankruptcy act or under any
similar federal or state law or shall be adjudicated as
bankrupt or insolvent; shall make an assignment for the
benefit of its creditors or shall admit in writing its
inability to pay its debts generally as they become due,
or if a petition or answer proposing the adjudication of
the Partnership as a bankrupt or its reorganization under
any present or future federal bankruptcy act or any
similar federal or state law shall be filed in any court
and such action or answer shall not be discharged or
denied within sixty (60) days after the filing thereof,
or a receiver, trustee or liquidator of the Partnership
or of all or substantially all of the assets of the
Partnership shall be appointed in any proceeding brought
against the Partnership and shall not be discharged
within sixty (60) days or if the Partnership shall
consent to or acquiesce in the appointment or if its
estate or interest of the Partnership in the parking lot
or any part thereof shall be levied upon or attached in
any proceeding and such process shall not be vacated or
discharged within thirty (30) days after such levy or
attachment, or the Partnership shall be dissolved or
liquidated.
d) If any representation or warranty made by the
Partnership herein, or in Mortgage, or by the Partnership
in any document or certificate furnished the City in
connection herewith or therewith or pursuant hereto or
thereto, shall prove to be incorrect or misleading in any
material respect as of the date made.
e) If the Partnership shall default under any of the
covenants, conditions or agreements on its part under the
Note, Mortgage, or this Agreement and the time for cure
of such default, pursuant thereto, if any, shall have
expired, and such default shall not have been waived.
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SECTION 1.9. City's Remedies in Default
Whenever any Event of Default will have happened any one or
more of the following remedial steps may be taken by the city:
a) The City may at its option declare all Loan Repayments
payable under the Note for the remainder of the Term
(being an amount equal to that necessary to pay the Note
in full, assuming acceleration of the Note, and to pay
all other indebtedness thereunder) to be immediately due
and payable, whereupon the same shall become immediately
due and payable by the Partnership and interest shall
accrue thereon to the date of payment.
b) The City, with or without declaring all such Loan
Repayments immediately due and payable, may take whatever
action at law or in equity be necessary or appropriate to
collect the Loan Repayments immediately due and payable,
may take whatever action that law or equity be necessary
or appropriate to collect the Loan Repayments then due
and thereafter to become due or to enforce performance
and observance of any obligation, agreement or covenant
of the Partnership under this Agreement or under any of
the Collateral Documents.
c) Notwithstanding any other provision of this Loan
Agreement, the Note, or the Mortgage, the Partnership
shall have a period of thirty (30) days after written
notice of an Event Default within which to cure the
default. If the Default is cured during the thirty (30)
day period, the Note and this Loan Agreement shall be
reinstated without acceleration.
SECTION 1.10. Disposition of Funds
Any amount realized pursuant to action taken under Section
1.12 hereof shall be applied as follows:
a) First, to the payment of all costs and expenses
(including reasonable attorney's fees as permitted by
law), liabilities incurred or advances made hereunder by
the City.
b) Second, to the payment to the City of the amount then
owing or unpaid under this agreement for principal or
interest due on the loan, and in case any such proceeds
shall be insufficient to pay the whole amounts so due,
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then first to the payment of interest and then to the
payment of principal, and
c) Third, to the payment of any excess to the
Partnership, or to whomever may be lawfully entitled to
receive the same.
SECTION 1.11. Right of Prepayment
The Partnership throughout the period of this Loan Agreement
shall have the full right of prepayment, at any time, without
penalty.
II.
DEVELOPMENT AGREEMENT
Definitions
In this Agreement, unless a different meaning clearly 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 CMA, L.L.P.
"Project" means the Project described in Section 2.2.
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"Project Area" means that tract of land described as Lots One,
Two and Three, Block 31, Kalispell Original Townsite.
"Redevelopment Area" means those areas of Kalispell which have
been designated by CITY as blighted and therefore desirable for
rehabilitation.
"Redevelopment Plan" means the CITY'S overall plan for
promoting rehabilitation of City areas found to be blighted.
"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.
"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.
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Representations and Warranties
SECTION 2.1. By CITY.
CITY makes the following representations to DEVELOPER:
(a) The CITY, under the Act and Ordinance No. 933 and
Ordinance No. 1243, 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, Ordinance No
933 and Ordinance No. 1243.
(c) The Urban Renewal Plan, as approved by Ordinance No.
933 and Ordinance No. 1243, 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 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 on hand, in its Tax Increment Fund or
has the authority to borrow, at least sufficient funds to
complete it obligations under this Agreement.
(e) The City has determined that the infrastructure
improvements described in Section 2.2(h) are necessary to
the development of the Project, at a cost of Sixteen
Thousand One Hundred Sixty-six Dollars ($16,166.00).
(f) The cost of designing, engineering, acquiring, and
constructing said infrastructure are cost that can be
financed through tax increments pursuant to Section 7-15-
4288, of the Act, and the City Council has authorized the
use of the tax increment to finance those improvements,
subject to Section 2.3.
SECTION 2.2. By DEVELOPER.
DEVELOPER represents and warrants that:
(a) DEVELOPER, CMA, L.L.P. is a limited liability
partnership, duly organized under the laws of the State
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of Montana, has the power to enter into this Agreement,
and has duly authorized the execution, delivery and
performance of this Agreement.
(b) 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.
(c) DEVELOPER estimates
the Project as described
the following estimates:
Description of Protect
Land Acquisition
Site Improvements
Building Construction
Contingency
that the cost of constructing
in (b) is $ 620,692.00 based on
Estimated Cost
$ 220,000.00
$ 86,695.00
$ 285,452.00
$ 28,545.00
TOTAL $ 620,692.00
(d) 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 $ 620,692.00. 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.
(e) DEVELOPER has obtained, or has available to it,
sufficient funding to complete the construction of the
Project.
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(f) DEVELOPER has been advised 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.
(g) Developer is aware on the Infrastructure Improve-
ments which are the responsibility of the City described
in Section 2.2(h) and the on site improvements associated
wit this Agreement and represents and acknowledges that
the construction of such improvements are necessary to the
development of the Project.
(h) Developer has requested that the City pay the costs
of designing, acquiring and installing the following
infrastructure improvements: sidewalk on 4tn Avenue West,
sidewalk on Center Street, paving of alley, one (1) light
pole and landscaping; all within City rights -of -way.
Infrastructure Improvements
SECTION 2.3. Seauencina of Events.
a) The City, after coordinating with the Developer, shall
proceed with the design and/or construction of the
Infrastructure Improvements utilizing City personnel
and/or contract services. The City will complete the
design of the Infrastructure Improvements and commence
competitive bidding, if required, upon signing of this
Agreement, provided that the City is not prevented from
proceeding by court order or delay occasioned by a
referendum petition. Upon completion of the bidding
process, a final construction budget and time table for
the Infrastructure Improvement will be prepared by the
City and then be reviewed by and subject to the approval
of the Developer. Infrastructure Improvements shall be
installed on or before lst day of June, 1999, when
Developer plans on opening its complex for business.
b) Developer may, at its option, proceed with the design
and/or construction of the Infrastructure Improvements,
listed in 2.2 (h), upon review by the City. In that
event, Developer shall submit proof of payment for work
accomplished and the City shall reimburse Developer on
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the invoices. Application of this paragraph shall waive
the time requirements set forth in 2.3. (a).
SECTION 2.4. Limitations on City's Commitment.
The City shall use its tax increment revenues to pay for the
cost of only those infrastructure improvements listed in Section.
2.2 (h). In the event other public infrastructure improvements
other than those listed in Section 2.2. (h) are required, said
improvements shall be the responsibility of the Developer.
Construction of Project
SECTION 2.5. 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
Project, the Infrastructure 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 if, 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 terms 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.
SECTION 2.6. Construction of the Protect.
(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 improve-
ments. 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.
(b) All work with respect to the Project shall be in
substantial conformity with the Construction Plans
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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 times 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 instal-
lations, 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.
Defense of Claims; Developer's Risk
SECTION 2.7. 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, 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 authorized by
the DEVELOPER. The omission to notify the DEVELOPER as herein
provided will not relieve it from any liability which it may have
to any indemnified party pursuant hereto, otherwise than under this
section.
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SECTION 2 8 Developer understands and accepts certain risks
associated with proceeding with the Protect
The City shall act in good faith and shall use its best
efforts to assure completion of the Infrastructure Improvements in
accordance with this Agreement. In the event the City is unable to
complete the Infrastructure Improvements in a timely manner as a
result of legal challenge resulting in a court order preventing
City participation in the Project of a declaration of invalidity
pursuant to Montana law by initiative or referendum, Developer
shall have the right to withdraw from this Agreement or to complete
the Infrastructure Improvements at Developer's expense.
SECTION 2.9. Payment of Taxes
Developer shall pay when due all real estate taxes and
installments of special assessments payable on the Project
Property. Developer and the City recognize that the State of
Montana, Department of Revenue shall utilize calculator or
segregated cost methods to determine the Assessed valuation of the
improved real property and the Developer shall utilize an income
approach to value to protest the Assessed Valuation of said
property for a period of five (5) years from the date of this
agreement.
Events of Default
SECTION 2.10. 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 of this
Agreement with respect to the Project and continues for more than
30 days after notice by the CITY to DEVELOPER of such default (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 the Project.
(b) Failure of DEVELOPER to furnish the Site Plans or
Construction Plans.
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(c) Failure of DEVELOPER to pay real estate taxes, the
payment contemplated in Section 2.9.
(d) Any event of default otherwise provided under the
Loan Agreement provisions of this Agreement (Section 1.11)
or in the Loan Documents or as otherwise provided by
local, State or federal law.
SECTION 2.11. Remedies on Default.
Whenever any Event of Default referred to in Section 2.10. or
Section 1.8. 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 obligation, agreement, or covenant of
the DEVELOPER under this Agreement.
III.
GENERAL PROVISIONS
SECTION 3.1. Manner of Exercise.
No remedy herein conferred upon or reserved to the City is
intended to be exclusive of any other available remedies, but each
and every such remedy shall be accumulative and shall be in
addition to every other remedy given under this agreement for now
or hereinafter existing at law or in equity or by statute. No delay
or admission to exercise any right or power shall be considered to
be waived thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient.
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SECTION 3.2. Attorney's Fees and Expenses .
In the event of any controversy, claim or dispute arising out
or relating to this Loan and Development Agreement, the Note, or
the Mortgage, or the method and manner of performance thereof or
the breach thereof, the prevailing party shall be entitled in
addition to any other relief, a reasonable sum as attorney's fees
and litigation expenses. In the event neither party wholly
prevails, the party that substantially prevails shall be awarded a
reasonable sum as attorney's fees and litigation expenses. In
determining what is a reasonable sum for attorney's fees and
litigation expenses, the actual amount of the attorney's fees the
party is obligated to its attorney or attorneys shall be presumed
to be reasonable, which presumption is rebuttable, and actual
expenses incurred in the proceedings including all expenses of a
party for travel, etc., shall be presumed to be reasonable, which
presumption is rebuttable.
SECTION 3.3. Effect of Waiver
In the event any agreement contained in this agreement should
be breached by either party and thereafter be 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 breach hereunder.
No waiver, amendment, release or modification of this agreement
shall be established by conduct, customer course or dealing, but
solely by an instrument in writing duly executed by the City, its
successors or assigns.
SECTION 3.4. Notices
All notices, certificates or other communications hereunder
shall be sufficiently given and shall be deemed given when mailed
by certified or registered mail, postage prepaid, with proper
addresses indicated below. The City and the Partnership may by
written notice given by each to the other, designate any other
address or addresses to which notices, certificates or other
communications to them shall be sent when required as contemplated
by this agreement. Until otherwise provided by the respective
parties, all notices, certificates and communications to each of
them shall be addressed as follows:
To the City: City of Kalispell, Montana
City Hall
Drawer 1997
Kalispell, Montana 59903
Attention: City Clerk
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To the Borrower: CMA, L.L.P.
P.O. Box 883
Kalispell, Montana 59903-883
SECTION 3.5. Binding Effect
This agreement shall inure to the benefit of and shall be
binding upon the City and the Partnership and their respective
successors and assigns.
SECTION 3.6. Entire Agreement.
All understandings and agreements previously existing between
the parties, if any, are merged into this Agreement including all
schedules and exhibits, which alone fully and completely expresses
their agreement, and the same is entered into after full
investigation, neither party relying on any statement or
representations made by the other not embodied herein. This
Agreement may not be changed or terminated orally.
SECTION 3.7. Severability
If any term, condition or provision of this agreement or the
application thereof to any person or circumstance shall, to the
extent, be held to be invalid or unenforceable, the remainder
thereof and the application of such term, provisions and conditions
to persons or circumstances other than those as to whom it shall be
held valid or enforceable shall not be affected thereby, and this
agreement and all the terms, provisions and conditions hereof
shall, in all other respects, continue to be effective and to be
complied with to the full extent permitted by law.
SECTION 3.8. Amendments, Changes and Modifications
Except as otherwise provided in this agreement, subsequent to
the initial issuance of the note and before the mortgage is
satisfied and discharged in accordance with its terms, this
agreement may not be effectively amended, changed and modified or
altered without prior written consent of the lender.
SECTION 3.9. Execution Counterparts
This agreement may be simultaneously executed in several
counterparts, each of which shall be an original and all of which
shall constitute by one and the same instrument.
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SECTION 3.10. Limitations on City's Liability
No agreement or provision contained in this agreement, nor any
other agreement, covenant or undertaking by the City contained in
any document executed by the City in connection with this agreement
shall give rise to a general liability of the municipality or a
charge against its general credit or taxing powers, or shall
obligate the City financially in anyway except with respect to this
agreement and the application of revenues therefrom and the
proceeds of the note. No failure of the City to comply with any
term, condition, covenant or agreement herein shall subject the
City to liability for any claim for damages, costs or other
financial pecuniary charge except to the extent that the same can
be paid or recovered hereunder, from or under this agreement or the
proceeds of the note; and no execution of any claim, demand, cause
of action or judgment shall be levied upon or collected from the
general credit, general funds or taxing powers of the City.
IN WITNESS WHEREOF, THE CITY HAS CAUSED THIS AGREEMENT TO BE
EXECUTED IN ITS NAME AND ON ITS BEHALF AND ITS OFFICIAL SEAL TO BE
HEREUNTO FIXED AND ATTESTED BY ITS DULY AUTHORIZED OFFICERS, AND
THE PARTNERSHIP HAS CAUSED THIS AGREEMENT TO BE EXECUTED IN ITS
NAME AND ON ITS BEHALF, ALL AS OF THE DATE FIRST HEREIN ABOVE
WRITTEN.
ATTEST:
City Clerk
CITY OF KALISPELL
Mayor
CMA, L.L.P.
By:
Its:
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