04/15/97 Gallagher/Haven Field Development Agreement04/15/97 10:56 STATION
(123)455-7890 P. 001
facsimile
TRANS M I TTA L
to: Clarence W. Krepps and Glen Meier
Max 0. 758-7758
re: Haven Field Development Agreement
date: April 15, 1997
pages. 2, including this cover sheet.
Attached is the language Glen drafted in the first Development Agreement.
Because Mae Nan stated "there is no statutory authority in Montana to extract a "payment
in lieu," I am concerned that we need to classify it as specific damages, a default penalty,
or some other contractual obligation to cause specific performance under the terms of the
Agreement, in other words, if we continue to call it a payment in lieu, and there is clearly
no legal authority for a municipality to require it and the Outlaw signs the Agreement, can
they later claim the City had no right to include it in a contract or development agreement?
l also recommend that we clearly spell out what the legislative intent was, the reason it
was required, and the fact that the Outlaw was party to the concession ,and discussion and
agreed to it. we may have to rely on the covenant of good faith and fair dealing if we are
ever to get our money.
Finally, it is not clear to me how the payment in lieu of will be paid. The County has a
statutory mandate to calculate and segregate the tax increment. How will the City he
assured that the full value of the proposed development will be recognized by the County
Assessor for tax purposes and how will the Outlaw pay any shortfall? The assumptions and
sample.calculations need to be defined so there is no misunderstanding. Can the shortfall
payment in lieu of be paid directly to the City of Kalispell?
From the desk of...
Lawrence Galtagher
Director
City of Kalispell, Planning, Economic &
Community Development Department
R O, Box 1997 - 248 3rd Avenue East
KALISPELL MT 59903.1997
(406) 758'-7741
Fax; (406) 758.7739
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ARTICLE 7
Payment of Taxes: Payment in Lieu
Section 7.1. Taxes. Developer shall pay when due aa1 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 properly up to $6,460,000 and further
not to protest the taxes on such property for the first S years after completion.
Section. 7.1. .Payment in Lieu. Developer and City anticipate that under
current Montana law the Project Property, once fully developed in accordance with
this Agreement shall generate $124,000 in ad valorem tastes. Developer recognizes
that the City has created the Redevelopment area with Tax Increment provisions for
the purpose of enhancing recreational opportunities for the City. Pursuant to that
recognition Developer agrees, that in the event that the Project Property, once
developed, does not generate at least $124,000 per year in ad valorem taxes, the
Developer will pay to the City the difference between the takes actually generated
and the amount by this Agreement anticipated. This covenant to pay in lieu of taxes
shall survive the termination of this Agreement and continue so long as Tax
Increment Bonds issued to provide said rccreetional facilities are outstanding.
ARTICLE 8
Prohibitions Against Assignment and Transfer
Section B.I. Transfer ofOm ersltin. The Developer recognizes that a transfer of a
controlling interest in the Developer or any other act oftrransaction resulting in a significant
change in the ownership are of particular concern to the City. Prior to completion of the
Project as certified by the City, except in the case of the death or incompetency of the
shareholders of Developer, (a) there shall be no transfer of any interest of a shareholder in
Developer, (b) nor shall any officer or shareholder suffer any such transfer to be made, (c)
'nor shall there be or be suffered to be by Developer, any other similarly significant change
in the ownership of Developer or in the relative distribution thereof, or with respect to the
identity of the parties in control of Developer or the deg= thereof, by any other method or
means.
Section 8.1. Transfer of Propertyand A,ssignmeaat. Developer has not made and
will not make, or suffer to be made, any total or partial sale, assignment, conveyance, lease,
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