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04/19/99 Lot 1, Daley Field Offering DocumentREDEVELOPMENT SITE AVAILABLE Lot 1, Daley Field Subdivision Kalispell, Montana Up to 2.98 Acres (129,808 Square Feet) Available Zoned B2 - Highway Commercial Located at Kalispell's South Entrance U.S. Hwy 93 Frontage and Signalized Controlled Access REDEVELOPMENT SITE AVAILABLE Lot 1, Daley Field Subdivision Kalispell, Montana Up to 2.98 Acres (129,808 Square Feet) Available Zoned B2 - Highway Commercial Located at Kalispell's South Entrance U.S. Hwy 93 Frontage and Signalized Controlled Access For Information Contact City of Kalispell CITY MANAGER'S OFFICE P.O. Box 1997 Kalispell, MT 59903-1997 (406) 758-7703 FAX (406) 758-7758 or Any Licensed Real Estate Broker you may wish to engage to represent your interest in the transaction. Redevelopment proposals will be accepted prior to and until 2:30 p.m. Mountain Day Light Time, Wednesday, June 9, 1999, by Clerk of Council, Kalispell City Hall, 312 1st Avenue East, Kalispell, Montana. This presentation is not an offer to sell the property described and is, instead, a solicitation of offers to purchase. Any offer to purchase must be accepted and approved by resolution of the City of Kalispell and in accordance with disposition procedures specific in the Montana Urban Renewal Law and by the City of Kalispell. Information provided herein is a summary, subject to error and omission, and without any warranty of accuracy. Prospective purchasers should independently verify any information provided herein. No real estate listing or agency agreement is implied directly or indirectly by reason of this presentation. Lot 1 Daley Field Offering Document 1 April 19, 1999 It I rllmaol • Property Identification: The property is commonly known as Lot 1, Daley Field Subdivision, Kalispell, Flathead County, Montana. The parcel is zoned General Business, B-2 Commercial, for sale and private redevelopment. Location: Entering Kalispell, Montana, from the south, the parcel is highly visible, located immediately adjacent to and west of U.S. Hwy 93 South. The parcel has over 250 feet of highway frontage. Neighborhood: The subject property and all of the airport property is included within the boundaries of the "KALISPELL CITY" AIRPORT/ ATHLETIC COMPLEX REDEVELOPMENT PLAN (the "Plan"). The Plan is a comprehensive Urban Renewal Plan adopted by the City Council, Ordinance No. 1242, on July 1, 1996, to implement the Airport Neighborhood Plan adopted in 1993. A map of the Urban Renewal Plan area and adjacent neighborhoods is attached as Exhibit A. Kalispell City Airport, Montana's busiest general aviation airport, is located west of the subject and is the focus of the City's plan to redevelop the area and the airport into a FAA approved general aviation field. The airport is subject to a Phase I, Feasibility Study conducted by Morrison-Maierle, Inc. completed January, 1999. The City Council acts as an Airport Authority to manage the facility and to attract users, provide more general aviation facilities and hangars, and, in general, enhance its use as a publicly owned general aviation field. It is advised by an appointed Airport Advisory Committee. Lot 2, Daley Field Subdivision was sold to Rosauers Supermarkets, Inc. in December of 1997. Rosauers expects to commence construction of a 50,000 square foot grocery store in June of 1999 with a completion date of June, 2000. Site Description, Shape and Size: A 121,808 square foot rectangular parcel of land (2.98 acres) consisting of all property lying within the Daley Field Subdivision located in the NW 1/4, Section 20, T28N, R21W, P.M.M., Kalispell, Flathead County, Montana, recorded reception #199735115000, records of Flathead County, Clerk and Recorder. Lot 1 Daley Field Offering Document 2 April 19, 1999 Subject to a Reciprocal Easement and Maintenance Agreement, recorded by reception #199736015140, records of the Flathead County, Clerk and Recorder. Reserving therefrom a non-exclusive roadway and utility easement, being 30 feet in width, lying southeasterly of and along the most northwesterly line of the above described Lot 1. Record Owner: FEE SIMPLE ESTATE held by THE CITY OF KALISPELL, MONTANA, a body politic. Access and Streets: U.S. Hwy 93 South and a proposed new signalized intersection with 3rd Ave East and at Kelly Road. The Montana Department of Transportation anticipates the contracts for reconstruction of Hwy 93 South as a four lane highway will be awarded in the Spring of 2000 with construction to begin the Summer of 2000. Visibility & Traffic: This site is highly visible from all access points. Recent traffic counts from the MDT indicate approximately 16,000 ADTs along this stretch of U.S. Hwy 93 South. MDT has estimated an approximate 27,000 ADTs per day within 20 years. Topography: All sites are level or gently sloping and at highway grade. Soils: No subsoil information or investigation has been conducted by the City other than a Phase I Environmental Audit of the subject, a copy of which will be made available to interested redevelopers. Utilities: Sanitary Sewer: Sanitary Sewer to the property shall be accomplished pursuant to the Development Agreement between the City and Rosauers Supermarket, Inc. Said Agreement anticipates that Rosauers will construct a sewer line within an easement on the airport property with a main extension to serve Lot 1. Rosauers shall be reimbursed for the expense on an aliquot part basis. Water: A 12 inch water main is located on the west side of Hwy 93 South, immediately adjacent to Daley Field. Development of the property would require the extension of the water main to each of the buildings. Fire hydrants require an 8 inch minimum pipe, and fire sprinkling requirements would be based upon specific Lot 1 Daley Field Offering Document 3 April 19, 1999 development proposals as defined in the 1997 Uniform Building Code. 3-Phase, underground electrical power is available at the northerly edge of Daley Field, adjacent to Hwy 93 South. Providing power to new construction will require the developer to provide trenching and conduit per Flathead Electric Cooperative's requirements. Per their current policy on extension of services, Flathead Electric will provide and pull the wire to the building site. -. . Telephone lines are located underground on the east side of Hwy 93 South. Extension of services to Daley Field will require CenturyTel to apply for a permit to bore under the highway. CenturyTel will provide the service at no charge and requires 60 to 90 days to schedule and complete the work. Natural Gas: In a May 21, 1997 telephone conversation with John Swenson, Service Representative for Montana Power Company, he provided the following preliminary information: "Under current line extension policy permitted by the Public Service Commission, Montana Power Company feels in its best estimate that natural gas service can be provided at no cost to the potential users locating on Daley Field." Natural gas is available to the site in the following locations: Westside-of Hwy 93 South 2 inch line on the north side of the National Guard Armory (north side of Daley Field) 2 inch line at the Social Rehabilitation Services Building (south side of Daley Field) East side of Hwy 93 South 4 inch line that turns east at 3rd Avenue East. Relocation of pipe is not anticipated with highway reconstruction. BTU demand of the proposed loads will determine if pipe sizing on the west side of highway is adequate or, if because of the Lot 1 Daley Field Offering Document 4 April 19, 1999 size of the load, a boring under the highway to access the gasline on the east side of the highway will be necessary. If a bore under the highway is necessary, MPC will have to obtain the necessary permits from the Montana Department of Highways. MPC needs enough lead time to schedule the work prior to the ground freezing. Minimum lead time is dependent on current work load at the time of the request. A minimum of 30 days is needed to acquire the permit from MDOT. During the reconstruction of Hwy 93 South (Spring 2000), MDOT will construct storm drainage for the runoff occurring from curb to curb of the highway. The City anticipates, subject to City Council authorization of additional funds, up -sizing the capacity of the system to accommodate a portion of potential development adjacent to the highway, including but not limited to Daley Field. Plans for storm drainage are available for consideration at this time. It is not anticipated the new highway storm drainage system will be sized to handle all runoff from adjacent properties. Again, the Development Agreement with Rosauers obligates the City to grant an easement on airport property for the storage and treatment of storm water runoff. Proper site planning will need to accommodate the majority of the runoff in a permanent detention pond system. Utilities cannot be located under the detention pond. ■ • • • •plum•� MDT anticipates the contracts will be awarded in the Spring 2000, with construction to begin Summer 2000. Access to Daley Field can be temporary, based upon final highway design. If a traffic signal is needed, a temporary signal may be permitted, subject to MDT approval and costs paid by City. Future permanent traffic signals are anticipated at the realignment of the intersections of 3rd Avenue East and Hwy 93 South, and Kelly Road and Hwy 93 South. Installation of a traffic signal at the 3`d Avenue East intersection will be accomplished with the Rosauers building or US #93 construction, whichever occurs first. Installation of the Kelly Road signal will depend upon traffic counts, turning movements, and warrants. Zoning: The site is governed by the CITY OF KALISPELL Zoning Ordinance, with an effective date of March 19, 1992. A complete copy of the Zoning Ordinance is available from the City's Lot 1 Daley Field Offering Document 5 April 19, 1999 Department of Planning, Economic and Community Development Office. The parcel is zoned General Business, B-2. According to Chapter 27.14. B-2 GENERAL BUSINESS, Section 27.14.010 Intent, the B-2 designation is: "A business district to provide areas for those retail sales and service functions and businesses whose operations are typically characterized by outdoor display, storage and/or sale of merchandise, by major repair of motor vehicles, and by outdoor commercial amusement and recreational activities. The district would also serve the general needs of the tourist and traveler." A copy of Ordinance 1303, Zoning for Daley Field Subdivision, is attached as Exhibit B. For planning purposes, copies of the appropriate sections of the Kalispell Zoning Ordinance are attached as Exhibit C. These include: Sections 27.14.020: Permitted Uses; 27.14.030: Uses Which May Be Permitted By Conditional Use Permit; and 27.14.040 Property Development Standards of the Kalispell Zoning Ordinance. Also attached is a copy of Airport Perimeter Resolution No. 4451 as Exhibit D. Sign The City encourages an attractive, aesthetically pleasing signage plan that shall advertise and promote businesses that are being conducted on said property. The sign(s) shall meet all required setback and size requirements as set forth in the Kalispell Sign Ordinance. The display of billboards and/or off -premise signs will be prohibited by deed restriction on all of the land that is the subject of this offering. Parking: Parking requirements are governed by Chapter 27.26 of the Kalispell Zoning Ordinance. Tax Information and Assessment The real estate has been "tax exempt" because the City of Kalispell, its current owner, is a public entity exempt from taxation. Now it is the City's goal to encourage the private redevelopment of the site to its highest and best use, thereby generating substantial ad valorem taxes for the tax increment district and eventually all taxing jurisdictions. In Montana and in Kalispell, both real and personal property are subject to property (ad valorem) taxation, except as provided otherwise. Property is classified and taxed in Lot 1 Daley Field Offering Document 6 April 19, 1999 accordance with statutes enacted by the Montana legislature. Generally, tax liability for business property is determined in the following way: Market Value x Classification Rate = Taxable Value Taxable Value x Mill Levy = Property Tax Liability The mill levy is an aggregate of state and local levies imposed annually for the purpose of funding city and county governments, schools, and the university system, in accordance with the statutes and regulations of the Montana Department of Revenue. One mill is 1/10 of a cent — computed as $1 tax on every $1,000 of taxable value. The rate is determined by comparing the local budget requirement against the taxable value for a particular taxing district. Density & Height Considerations: The Kalispell City Council encourages redevelopment proposals that will take maximum advantage of the parcel's potential for highest and best use and urban density redevelopment. It wants to encourage construction of high quality and high value building(s). The subject real estate has not previously been available for redevelopment and has in the past provided both open space and an attractive landscaped entrance to the community; therefore, the City wants to encourage redevelopment that will enhance the south entrance to Kalispell as well as meet other objectives of the Plan. The City does not encourage redevelopment proposals or offers to purchase from developers desiring to purchase the land for speculation or for future unspecified redevelopment phased over a long period of time or to construct only one or a few single -story low density buildings. While the City does not have a minimum density development standard or requirements, the Kalispell City Council will carefully evaluate all proposals and how it impacts the site, the surrounding neighborhood, and the City's tax base. Proposals that represent architectural and site planning excellence will be given preference in the selection process. Objectives and purpose for the evaluation include: (a) Originality, flexibility, and innovation in site planning and development, including architecture, landscaping, and graphic design of the proposed development. (b) Protect and enhance the south entrance to the City and appeal to residents and visitors and, thus, support and stimulate business and industry and promote the desirability of investment and occupancy in business, commercial, and industrial properties. Lot 1 Daley Field Offering Document 7 April 19, 1999 (c) Stabilize and improve property values and prevent blighted areas and, thus, increase tax revenues. Criteria for evaluation of the proposals will be based upon the documents submitted in the proposal. All proposals shall include the following information: (a) A site plan drawn to scale, showing the proposed layout of all structures and other improvements including driveways, pedestrian walks, landscaped areas, fences, walls, off-street parking, and loading areas. The site plan shall indicate the location of entrances and exits and the direction of traffic flow into and out of off-street parking and loading areas, and indicate how exterior lighting, utility service, and drainage will be provided. (b) Architectural drawings or sketches, drawn to scale, including preliminary floor plans, with sufficient detail to permit computation of all site development criteria (i.e., setbacks, lot coverage, off-street parking requirements, building heights). The drawings will show all elevations of the proposed structures and other improvements as they will appear upon completion, including all roof mounted equipment, trash storage areas, and utility equipment. (c) Specifications as to type, color, and texture of exterior surfaces of the proposed structures, including signage, graphics, and illumination. The Kalispell City Council understands redevelopment incentives, the land write -down process, return on investment, and the difficulty developers may have in securing firm financial commitments and financing for significant commercial projects. Therefore, the City will carefully and promptly evaluate all reasonable developer requests for City participation, to the extent permitted by the Montana Urban Renewal Law. Suggested Sales Price: The Montana Urban Renewal Law in Section 7-15-4262(3) states: "Such real property or interest shall be sold, leased, otherwise transferred, or retained at not less than its fair value for uses in accordance with the urban renewal plan. In determining the fair value of real property for uses in accordance with the urban renewal plan, a municipality shall take into account and give consideration to the uses provided in such plan; the restrictions upon and the covenants, conditions, and obligations assumed by the purchaser or lessee or by the municipality retaining the property; and the objectives of such plan for the prevention of the recurrence of blighted areas." The City Council will establish the fair value for the property based upon the proposals submitted by potential developers of the property, under Section 7-15-4262. The City Council may accept any proposal it deems to be in the public interest and in furtherance of the Montana Urban Renewal Law. Lot 1 Daley Field Offering Document 8 April 19, 1999 Although the City is free to entertain high price offers for the property, its objective is to encourage highest and best use, excellence in design and siting, employment or job creation, and the highest possible market valuation of land and improvements for ad valorem tax purposes. The seller, the City of Kalispell, is interested in receiving offers for ALL CASH ON CLOSING. Selection — Determination of Fair Value: The City may select the redevelopment proposal and base its final determination of the fair value for the land not only on the purchase price offered but also on criteria discussed in this document, the Goals discussed in the KALISPELL CITY AIRPORT NEIGHBORHOOD PLAN, and the "KALISPELL CITY" AIRPORT/ATHLETIC COMPLEX REDEVELOPMENT PLAN (Ordinance No. 1242, attached as Exhibit E). The Kalispell City Council may select the redevelopment proposal that offers fair value for uses in accordance with the Plan and best addresses the goals and objectives of the Plan and offering criteria vs. a redevelopment proposal offering a higher purchase price yet failing to or only minimally addressing offering criteria. Actual sale of any property subject to this solicitation of offers to purchase real estate may only be accomplished in accordance with Section 7-15-4263, Montana Code Annotated. The City will begin legally advertising the property on April 20, 1999, April 27, 1999 and May 4, 1999. Redevelopment proposals will be accepted prior to and until 2:30 p.m. Mountain Day Light Time, Wednesday, June 9, 1999, by Clerk of Council, Kalispell City Hall, 312 1st Avenue East, Kalispell, Montana. All proposals will be considered for approval and passage of a resolution authorizing the sale of the property at the meeting of the City Council on Monday, June 21, 1999. The selected redeveloper must be willing to execute a Developers Agreement demonstrating both financial and legal ability to complete the proposed redevelopment within the agreed time and for the amount specified in the redevelopment proposal. Section 7-15-4263, MCA, 1995, states as follows: Procedure to dispose of property to private persons. (3) The municipality shall consider all redevelopment or rehabilitation proposals and the financial and legal ability of the persons making such proposals to carry them out. The municipality may accept such proposals as it deems to be in the public interest and in. furtherance of the purposes of this part and part 43. Thereafter, the municipality may execute, in accordance with the provisions of Section 7-15-4262 and Section 7-15-4264, and deliver contracts, deeds, leases, and other instruments of transfer. The City, in considering competing proposals received as a result of the published notice, shall consider the purchase price offered by the respective respondents. However, the Lot 1 Daley Field Offering Document 9 April 19, 1999 purchase price shall not be the sole factor in disposing of the property to a successful purchaser. The City shall consider such other factors as: proposal's potential to further the goals and objectives of the Urban Renewal Plan, background of potential developers, financial ability of potential developers to perform under the proposal, benefit to the City in general and benefit to the Urban Renewal Area in particular. The decision on disposing of the property will ultimately be based upon a broad evaluation of the proposals submitted and how the proposals individually serve the public interest. After the proposals have been evaluated, the City Council shall be presented with a resolution authorizing the sale of the property and authorizing the City Manager to execute a deed to the property. The resolution when passed by the City Council takes effect immediately. Developers desiring to avail themselves of City participation in a proposed development should be aware that additional public hearings and action by the Council may be required prior to or after the purchase. An urban renewal project involving an amendment to the Plan requires, under Section 7-15-4213, MCA, that the City submit, by resolution, a proposed Urban Renewal Project Plan to the City -County Planning Board for their review. The City -County Planning Board has sixty (60) days in which to receive comment on the proposed plan and make a recommendation to the City. Once a recommendation is received, or after sixty (60) days if no action has been taken, the City schedules a public hearing on the plan after public notice. The City notices the resolution by publication in the Daily Inter Lake and by mailing of notice to all property owners in the Airport Neighborhood Plan area. Publication and mailing must be accomplished in a window between not less than ten (10) nor more than thirty (30) days prior to the hearing. However, the City does not anticipate the need for more public hearings. After the public hearing, the City Council shall be presented with an ordinance amending the Urban Renewal Plan to accommodate the project and its particulars. Under normal procedure, the Council has two readings of the ordinance, at least twelve (12) days apart, and the ordinance becomes effective thirty (30) days after its final passage. This synopsis of the requirements of the Urban Renewal Law is not intended to be an in-depth analysis of the procedures, but an outline of the basis requirements. Any developer desiring to present a proposal should retain legal counsel to evaluate the developer's position in the process. Although the City has not in the past considered any proposals involving a ground lease on the urban renewal property, the City in this case may consider such a proposal. However, a proposal for a lease of the property would, in addition to the matters discussed above, be required to contain a covenant that the City would not be subordinate to any mortgage or other financing arrangement. In addition, the City would require annual lease payments to be approximately 10% of the value of the property. Lot 1 Daley Field Offering Document 10 April 19, 1999 ENDNOTES: For the information of prospective proposers the City has attached hereto the following documents as Exhibits: a. Map of the Urban Renewal Plan, Exhibit A. b. Ordinance 1303, Daley Field Subdivision, Exhibit B. C. Sections 27.14.020, 27.14.030, and 27.14.040, Kalispell Zoning Ordinance, Exhibit C. d. Resolution No. 4451, Airport Perimeter Boundaries, Exhibit D. e. Ordinance 1242, Kalispell City Airport/Athletic Complex Redevelopment Plan, Exhibit E. f. Reciprocal Easement and Maintenance Agreement between the City and Rosauers Supermarkets Inc. dated December 24, 1997, Exhibit F. g. Articles 3 & 4, Development Agreement between Rosauers Supermarkets Inc. and the City concerning their respective obligations, Exhibit G. h. Plat of Lots 1, 2, and 3, Daley Field Subdivision showing future access road from 3rd Avenue East relocation, Exhibit H. Report of Tetra Tech, Phase I, Environmental Assessment, Exhibit I. Entire copies of documents mentioned above are available at Office of City Clerk, City Hall, City of Kalispell, P.O. Box 1997, Kalispell, MT 59903-1997 or by calling (406) 758-7756. 2. Representation by a Licensed Real Estate Broker: The City of Kalispell (seller) is represented by its employees in any real estate offering, negotiation, or transaction. In the event the buyer is interested in making an offer to purchase the property, it may employ its own agent to review the transaction, represent it, and the buyer should pay its agent's fee. The basis of the fee is a matter between the buyer (redeveloper) and its agent. THE BUYER MAY ELECT TO PROCEED WITHOUT REPRESENTATION. Lot 1 Daley Field Offering Document 11 April 19, 1999 I LiIa 1 rl<IL, 1 a L01 en ORDINANCE No. 1303 AN ORDINANCE TO AMEND SECTION 27.02.010, OFFICIAL ZONING MAP, CITY OF KALISPELL ZONING ORDINANCE, (ORDINANCE NO. 1175), BY ZONING CERTAIN REAL PROPERTY DESCRIBED AS LOTS 1, 2 AND 3, DALEY FIELD SUBDIVISION, SECTION 20, TOWNSHIP 28 NORTH, RANGE 21 WEST, P.M.M., FLATHEAD COUNTY (PREVIOUSLY ZONED P-1, PUBLIC) TO B-2 (GENERAL BUSINESS), IN ACCORDANCE WITH THE CITY -COUNTY MASTER PLAN, AND TO PROVIDE AN EFFECTIVE DATE. WHEREAS, the City of Kalispell and RSI, LLC (Rosauer's Supermarkets, Inc.), the owners of property described above, petitioned the City of Kalispell that the zoning classification attached to the above described tract of land be changed to B-2, General Business, and WHEREAS, the property as described exists as property surrounded to the North by P-1 Zoning (Public), to the East by B-2 and I-1 Zoning (General Business and Light Industrial), to the South by B-2 Zoning (General Business), and to the West by P-1 Zoning (Public), and WHEREAS, the petition of the City of Kalispell and RSI, LLC (Rosauer's Supermarkets, Inc.) was the subject of a report compiled by the Flathead Regional ' Development Office, #KCZ-98-5, dated January 4, 1999, in which the Flathead Regional Development Office evaluated the petition and recommended that the property as described above be zoned B-2, General Business as requested by the petition, and WHEREAS, the Kalispell City -County Planning Board and Zoning Commission issued a report amending the FRDO report and deferred approval to the City Council as to whether to rezone the property as described B-2, General Business, and WHEREAS, after considering all the evidence submitted on the proposal to zone the property as described B-2, General Business, the City Council adopts, based upon the criterion set forth in Section 76-3-608, M.C.A., and Mate,_ .rc_ v. Board of colinty n miaSinnPrc, .rr_ 590 P2d 602, the findings of fact of FRDO as set forth in Report No. KCZ-98-5, as amended by the Zoning Commission. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL AS FOLLOWS: SECTION I. Section 27.02.010, of the Official Zoning Map of the Kalispell Zoning Ordinance, (Ordinance #1175) is hereby amended by designating the property described as Lots 1, 2 and 3 of Daley Field as B-2, General Business. EXHIBIT B SECTION II. The balance of Section 27.02.010, Official Zoning Map, City of Kalispell Zoning Ordinance not amended hereby shall remain in full force and effect. SECTION III. This Ordinance shall be effective thirty (30) days from and after the date of its final passage and approval by the Mayor. PASSED AND APPROVED BY THE CITY rPUNCIL OF TH CITY OF KALISPELL AND SIGNED BY THE MAYOR THIS�; ""_ DAY OF 1999. ATTEST: J% Theresa White Clerk of Council 2 (F B n rCk i Wm . E.' $ohar Mayor Pap 28 - Kalbped Zonim Ordium B-2 GENERAL BUSS Sections: 27.14.010 Intent 27.14.020 Permitted Uses 27.14.030 Uses Which May Be Permitted By Conditional Use Permit 27.14.040 Property Development Standards 27.14.010: Intent. A business district to provide areas for those retail sales and service functions and businesses whose operations are typically characterized by outdoor display, storage and/or sale of merchandise, by major repair of motor vehicles, and by outdoor commercial amusement and recreational activities. This district wnuld also serve the general needs of the tourist and traveler. This district depends on the proximity to major sareers and arterials. This district should be located in business corridors or in islands. 27.14.020: Permitted Uses. M. Appliance distributors, wholesale repair. (2). Athletic club. (3). Automobile parking, commercial or public. (4). Automobile sales. (5). Automobile rental agency. (6). Automobile repair garages, excluding body shops. (7). Automobile service station (see definition). (8). Bakery/deli, wholesale and retail, less than 1,500 square feet manufacturing area (9). Barber and beauty services. (10). Bar, tavern, cocktail lounge, clubs and associated commercial enterprise. (11). Boat sales, new and used. (12). Building materials, storage/sale including lumber yards.. (13). Bus passenger terminal buildings, transit terminals. (14). Car wash, automobile detailing shop. (15). Catering establishments. (16). Church/worship/parish/Sunday school buildings. (17). Dairy barfce cream manufacturing, retail on premise. (18). Electrical sales and contracting companies. (19). Food processingtretail on premises -no killing or dressing of flesh or fowl. EXHIBIT C B-2 General Business - Page 29 (20). Food store/supermarket, etc. - no slaughtering of flesh/fowl. (21). Food stores, retail/under 3,000 square feet. (22). Garden supplies, retail sales. (23). Glazier. (24). Heating, ventilating, air conditioning (HVAC)/sheet metal shop, sales/service. (25). Hotel, motel. (26). Janitor supplies/services/contracting. (27). Launderette/dry cleaning, customer self-service. (28). Laundries/dry cleaning plants. (29). Liquor store. (30). Locksmiths or gunsmiths. (31). Lube station. (32). Manufactured home sales lot. (33). Massage parlor. (34). Motorcycle sales/repair. (35). Music education with related performance and limited sales. (36). Newspaper office. . (37). Nursery, landscape materials. (38). Office, professional/govemmental. (39). Parks. (40). Pawn shops (no outside storage/display). (41). Plumbing/heating materials, retail/service only. (42). Plumbing shop and yard. (43). Post office - main distribution center. (44). Post office - satellite or neighborhood. (45). Prepared food delivery facilities. (46). Printing/pub/reproduction/blueprinting/photostating establishment. (47). Produce stand. (48). Radiator repair. (49). Real estate sales offices. (50). Recreational area, commercial and non-commercial (see definition). (51). Rental service stores and yards. (52). Repair/service-office/household equipment. (53). Restaurants. (54). Retail business (see definition). (55). Riding academy and stables. (56). RV sales. (57). Second hand stores (see definition). (58). Shoe repair. (59). Ski rental shop. (60). Small engine sales, service and repair (lawn mowers, saws). (61). Take and bake prepared food facility. Page 30 - Kalispell Zoning ordinance (62). (63). (64). (65). (66)• (67). (68). (69). (70). Taxidermist. Telecommunication companies and/or radio common carriers. Theaters in permanent indoor structure. Tire dealer, alignment center. Trailer sales areas. Travel agency. Truck rentals, single axle, less than 20,100 pounds gvw. Upholstery shop. Veterinary clinic, small animals. 27.14.030: Uses Which May Be Permitted By Conditional Use Permit. (1). Amusement park or zoo and similar out-of-doors activities. (2). Apartments, Accessory. (Amended Ordinance No. 1195.) (3). Assembly halls/coliseums/stadiums/convention hall facilities. (4). Campground/RV Park (5). Casino. (6). Community residential facilities for eight or fewer persons. (Ordinance No. 1209) (7). Drive-in theaters. (8). Electrical distribution station. (9). Fish sales stand, temporary. (10). Golf courses. (11). Golf driving range/putting course. (12). Hangars (aircraft) when abutting/contiguous to an airport. (13). Heliports. (14). Hostel, youth. (15). Law enforcement/fire stations. (16). Libraries, museums, and similar cultural facilities. (17). Mobile restaurant/vendor facilities. (18). Quasi -public buildings, non-profit in character. (19). Railroad rights -of -way. (20). Recycling center. (21). Restaurants, as an incidental use. (22). Rifle range, indoor. (23). Schools, commercial (see definition). (24). Shelter, public or private. (25). Temporary building/structure. (26). Transmission towers and accessory facilities. (27). Water storage facilities. 27.14.040: Property Development Standards. (1). Minimum Lot Area: 7000 square feet (2). Minimum Lot Width (FT): 70 B-2 General Butiam - Page 31 (3). Minimum Yards (FT): Front Yard - 20 Side Yard - 5 Rear Yard - 10 Side Comer -15 (Amended Ordinance No. 1190.) (4). Maximum Building Height (FT): 35 (5). Permitted Lot Coverage (%): N/A (6). Off -Street Parking: Refer to Sections 27.26 and 27.27 (7). Maximum Fence Heights (FT): Front - 0 Side - 6.5 Rear - 6.5 RESOLUTION NO. 4451 A RESOLUTION AMENDING RESOLUTION NO. 3306 BY REDEFINING THE PERIMETER BOUNDARY OF THE LANDING FIELD OF THE KALISPELL CITY AIRPORT. WHEREAS, the City of Kalispell established the perimeter boundary of the Kalispell City Airport through Resolution 3306 on September 8, 1980; and WHEREAS, Phase I of a feasibility study for the Kalispell City Airport has recently been completed, revealing certain discrepancies between the height restrictions established by Resolution 3306 and height restrictions desired by the Federal Aviation Administration as part of an upgrade to the airport; and WHEREAS, the height of buildings and other structures surrounding the airport should be subject to such regulation as to promote the public order, health, and safety, and to help ensure the airport and surrounding uses are compatible with a potential upgrade of the airport facilities. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF KALISPELL, MONTANA, AS FOLLOWS: SECTION 1. That Resolution 3306 is hereby amended by deleting all paragraphs beginning with "NOW THEREFORE, BE IT RESOLVED" and replacing said paragraphs with the following: "SECTION i. That for purposes of Section 67-5-201, M.C.A. et se ., the established perimeter boundary, as distinguished from the actual boundary of the Kalispell City Airport, shall be defined as a line located on each side of the runway at one hundred twenty-five (125) feet from the runway center line and extending two hundred (200) feet beyond each end of the runway, with the northwest ends of each such segment connected by a straight line two hundred fifty (250) feet in length and the southeast ends of each such segment connected by a straight line two hundred fifty (250) feet in length. 4451 airport boundary.wpd EXHIBIT 0 SECTION IT, That a scale drawing of said established perimeter shall be prepared and made available for public inspection in the office of the City Building Department showing references and distances to established roads and other landmarks in the vicinity of the Kalispell City Airport. The City Building Official shall use such scale drawing for reference purposes in issuing or denying building permits in the enforcement of Title 67, Chapter 5, Montana Code Annotated." SECTION II. This Resolution shall become effective immediately upon its passage by the City Council PASSED AND APPROVED BY THE CITY COUNCIL AP)D - SIGNED BY THE MAYOR OF THE CITY OF KALISPELL, MONTANA, THIS / DAY OF MARCH, 1999. Wml.ftharski . Wm. E. Boharski Mayor Attest: Theresa White Clerk of Council 4451 airport boundary.wpd 2 ORDINANCE 140. 1242 AN ORDINANCE APPROVING THE KALISPELL CITY AIRPORT/ATHLETIC COMPLEX REDEVELOPMENT PLAN ANALYSIS FOR THE CITY OF KALISPELL, MONTANA AS AN URBAN RENEWAL PLAN; AUTHORIZING THE MANAGER TO IMPLEMENT THE PLAN WITH THE POWERS CONTAINED IN THE URBAN RENEWAL: LAW, AND DECLARING AN EFFECTIVE DATE. WHEREAS, under the provisions of the Montana Urban Renewal Law, the City Council of the City of Kalispell, Nontana, did adopt Resolution No. 4256 finding that 1) blighting conditions exist within the area of the Kalispell City Airport Neighborhood Plan, and 2) that rehabilitation, redevelopment or a combination thereof, within the area is necessary in the interest of public health, safety and morals or welfare of the residents of the City of Kalispell, and WHEREAS, the City Council of the City of Kalispell acting in its capacity as the Urban Renewal -Agency has directed that an urban renewal plan for the blighted areas be developed in accordance with"the Montana Urban Renewal Law; and WHEREAS, the City Council of the City of Kalispell, Montana (herein Agency) has caused to be made detailed studies of the land .uses, ownership, building conditions, demographics, transportation and safety within the Neighborhood Plan area and determined that said factors contribute to blighted conditions under S 7-15-4206, MCA, and are detrimental and a menace to the safety, health and welfare of the inhabitants and users of the area, and WHEREAS, the Agency has been fully apprised and is aware of the factors and conditions, and WHEREAS, there has been prepared an Urban Renewal Plan for the project, known as the Kalispell City Airport/Athletic Complex Redevelopment Plan Analysis (hereinafter Analysis) which has been reviewed by the Airport Advisory Board, an official advisory group; and WHEREAS, in accordance with Title 7, Chapter 15, Part 42, Montana Code Annotated, the City/County Planning Board is the duly designated and acting official planning body for the City and has submitted to the Agency its input and recommendations- with respect to the Analysis and -has certified that the Analysis conforms to the general plan for the locality and the Agency has duly considered the input, recommendations and certification of the Planning Board, and EXHIBIT E WHEREAS, the Analysis has been referred to the Agency for review and approval. The Analysis consists of textual matter inclusive of supporting material and maps and is attached hereto as Exhibit 'A" and by this reference made a part hereof, and WHEREAS, the Analysis for the project area requires, among other things: a. minimizing hazards to navigation, b. developing the airport in accordance with an airport layout plan, C. increasing development opportunities on nearby properties, d. promoting compatible land use in and around the airport, e. establishing a funding mechanism for airport properties, and f. establishing a priority schedule for plan implementation. WHEREAS, the Agency is aware that a market exists in the area for commercial development consistent with the Analysis, and WHEREAS, the City will comply with Federal and State laws governing the relocation of person(s) displaced as result of implementation of the Analysis, and WHEREAS, the members of the Agency have general knowledge of the conditions prevailing in the project area and the availability of property for the relocation of families, businesses and recreational property that may be displaced by implementation of the Analysis, and have determined that a relocation program is both workable and feasible for the needs of the project area, and WHEREAS, the Agency is cognizant of the conditions that are endorsed in the undertaking and carrying out of the Analysis including those prohibiting discrimination under the Montana Human Rights Act, and WHEREAS, in accordance with the S 7-15-4215, MCA, the Agency did hold a Public Hearing on June 17, 1996 after due and proper notice, both by mail and publication, of same. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL, MONTANA, AS FOLLOWS: SECTION I. That the Kalispell City Airport/Athletic Complex Redevelopment Plan Analysis for the City of Kalispell, Montana contained in Exhibit 'A" hereof, having been duly reviewed 2 and considered, is hereby approved and the City Clerk of Council is hereby directed to file said copy of the Analysis with the minutes of this meeting and in the Ordinance Book. Said ordinance is to be posted as required by law and copies made available to the public upon request. SECTION II. That it is hereby found and determined that the project area of said Analysis is blighted and qualifies as an eligible project under the Montana Urban Renewal Law. SECTION III. That it is hereby found and determined that the objectives of the Analysis cannot be achieved except through more extensive rehabilitation of the project area. SECTION IV. That it is hereby found and determined that the Analysis for the project area conforms to the Kalispell City -County Master Plan or parts thereof adopted for the City of Kalispell planning area. SECTION V. That it is hereby found and determined that a sound and adequate financial program exists in the Analysis for financing the projects contained therein. SECTION VI. That the redevelopment of the Analysis area is necessary for the proper development of the community. SECTION VII. That it is hereby found and determined that the Analysis for the area will afford maximum opportunities consistent with the sound needs of the locality as a whole for the renewal of the area by private enterprise. SECTION VIII. That it is hereby found and determined that the Analysis for the area gives due consideration to the providing for adequate .park and recreational areas and facilities as may be desirable for the neighborhood improvement with special consideration for the health, safety and welfare of children using facilities within the vicinity of the Analysis area. 3 SECTION IX. That a workable and feasible plan exists therein for making available adequate housing for person(s) who may be displaced by the projects. SECTION X. That in order to implement and facilitate the effectuation of -the Analysis, hereby approved, it is found and determined that certain official actions must be taken by the Agency with reference among other things to minimizing hazards to navigation, developing the airport in accordance with an airport layout plan, increasing private development on nearby properties, promoting compatible land uses in and around the airport, establishing funding mechanisms for airport operations, and establishing a priority schedule for plan implementation: a) Pledging its cooperation in carrying out the Analysis; b) Directing the various officials, departments, boards and agencies of the locality having administrative responsibility in the premises likewise to cooperate to such end and to exercise the respective functions and powers in a manner consistent with the Analysis; and c) Standing ready to consider and take appropriate action upon acceptable proposals and measures designated to effectuate the Analysis. SECTION XI. The City Council of the City of Kalispell, Montana does authorize the Manager to implement the Analysis with the powers set forth in Title 7, Chapter 15, Parts 42 & 43, MCA, and to seek financial assistance as it may become available from the Federal or State Government or such other sources as may be determined appropriate by the City Council. SECTION XII. This Ordinance will take effect from and after 30 days of its passage by the City Council. 4 FINALLY PASSED AND APPROVEBY THE CITY COUNCIL AND MAYOR OF THE CITY OF KALISPELL, THIS DAY OF i , 1996. Attest: Debbie GiMoLuncil CMCCity Cler 5 Dougla D. Rauthe - Mayor (11 0" - S/G a0 - OL 199'7360151 y 0 RECIPROCAL EASEMENT AND MAINTENANCE AGREEMENT THIS AGREEMENT, made and entered into this ?A day of December, 1997, by and between CITY OF KALISPELL, a municipal corporation ("(Sty"), and RSI, L.L.C., a Washington limited liability company being qualified in Montana, the sole initial member of which is ROSAUERS SUPERMARKETS, INC., a Washington corporation ("RSI"). RECITALS A. City is the owner of Lot 1, Daley Field Subdivision, located in the NW 1/4 of Section 20,, T28N, R21W, P.M.M., Kalispell, Flathead County, Montana ("City Property"). City also owns Lot 3, Daley Field Subdivision ("Lot 3"). B. RSI is the owner of Lot 2, Daley Field Subdivision, located in the NW 1/4 of Section 20, T28N, R21 W, P.M.M., Kalispell, Flathead County, Montana ("RSI Property"). C. City and RSI-wish to grant to one another an easement upon Lots 1 and 2, Daley Field Subdivision, to construct and maintain a private road serving both of their properties. To that end, they are entering into this Reciprocal Easement and Maintenance Agreement. O I. 4 GRANT OF RECIPROCAL EASEMENTS NA 1.1 City hereby grants to RSI, and RSI hereby grants to City, an easement as more fully described herein. p 1.2 With respect to the grant by the City: W 1.2.1 The Benefitted Property shall be the RSI Property. 1.2.2 The Burdened Property shall be a thirty (30) foot strip of land lying immediately north of and contiguous to the southern boundary of Lot 1, Daley Field Subdivision. EASEMENT AND AGREEMENT EXHIBIT F 1997360151go 1.3 With respect to the grant by RSI: 1.3.1 The Benefitted Property shall be Lot 1, Daley Field Subdivision; 1.3.2 The Burdened Property shall be a thirty (30) foot strip of land lying immediately south of and contiguous to the northern boundary of the RSI Property. 1.4 In consideration of the reciprocal covenants described herein, and the other benefits flowing from this Agreement, each party hereby grants to the other, and such other parties' heirs, personal representatives, successors, and assigns, a nonexclusive easement over, under, and across the Burdened Property in order to construct and maintain a private road for ingress and egress of such other party, its lessee(s), and its and its lessee's officers, directors, employees, agents, tenants, contractors, and invitees, to the Benefitted Property. This Easement shall be a perpetual easement and shall run with the land. 1.5 This Easement and the right to use the Burdened Property shall be nonexclusive. Each Grantor hereby retains, and shall have the right to the use of the Burdened Property, and the right to grant to other parties and property owners the right to use the Burdened Property, for ingress and egress, service, maintenance, and for other uses, provided such other uses will not unreasonably interfere with the use of the Burdened Property by each Grantee as described herein. Each Grantor reserves, and shall have the right to install, connect, and maintain, from time to time, in such Grantor's Burdened Property, utility lines and pipes, telephone lines and conduits, and light poles, and to use such Grantor's Burdened Property for other purposes, provided such uses for other purposes shall not unreasonably interfere with each Grantee's use of the Burdened Property as described in this Agreement. H. RIGHT TO EXTEND RIGHTS OF USE TO GRANTEE(S) OF LOT 3 2.1 On or after the date on which City sells Lot 3, Daley Field Subdivision, and after a traffic signal has been installed at the intersection of Kelly Road and U. S. #93, RSI, in its sole discretion, shall have the right to grant to the purchaser(s) of Lot 3 the right to use the private road described in Section 1.4, above, for ingress to and egress from Lot 3, in exchange for the right of the owner(s) and/or lessee(s) of Lots 1 and 2 to use a private road on Lot 3 for ingress and egress from Lots 1 and 2. EASEMENT AND AGREEMENT - 2 199736015-N0 "11 DESIGN AND CONSTRUCTION OF PRIVATE ROAD; SHARING OF COSTS OF CONSTRUCTION 3.1 The owners of the City Property and RSI Property, or their representatives, shall meet and collaboratively design a private road within the easement area. Recognizing that the development of either the City Property or the RSI Property might occur before the development of the other property, the owner of the first property to seek a building permit (the "Initiating Party") shall construct the private road, the center line of which shall be on the boundary line between Lots 1 and 2, Daley Field Subdivision, the owner of the other property thereafter reimbursing such party as set forth in this Agreement. For purposes of this Agreement, the private road shall be deemed to stop at each party's curb (said curb, and curb cuts, to be included within the costs of the private road to be shared herein); neither party shall be obligated to pay for the construction or maintenance of the sidewalks or other structures appurtenant to the other parry's side of the private road. 3.2 The Initiating Party shall, prior to the commencement of construction, provide an estimate of the cost of construction of the private road to the other party. Upon completion of construction of the private road, the Initiating Party shall provide to the other party an accounting of all direct costs of constructing such private road, including but not limited to costs of design, engineering, permitting, and construction, to which shall be attached documentary evidence of such costs. The other party shall pay one-half (1/2) of such documented costs within fifteen (15) days of receipt of such accounting. IV. SHARING OF COSTS OF MAINTENANCE AND REPAIR; MAINTENANCE AND REPAIRS DEFINED 4.1 The owners of Lots 1 and 2, Daley Field Subdivision, shall each pay one-half (1/2) of all expenses incurred to maintain and repair the private road; provided that, subject to paragraph 4.4, neither shall be required to contribute to the maintenance and repair of such road unless and until such party, or its lessee(s), begin to conduct retail activities on and from such party's property. EASEMENT AND AGREEMENT - 3 199736015ft 4.2 The repairs and maintenance to be undertaken and performed under this Agreement, and the costs of which shall be shared under Section 4.1, shall include all ordinary and necessary expenses related to the repair or maintenance of the private road, whether currently deductible or necessarily capitalized, including, but not limited to, resurfacing of paved surface, filling of chuckholes, plowing, sanding, deicing, striping, cleaning, and signing. 4.3 On or after the date on which RSI, or its lessee, opens a grocery store on Lot 2, Daley Field Subdivision, the owner of Lot 2, Daley Field Subdivision, or its designee, in its sole but good faith discretion, shall have the right to determine and manage the maintenance and repair of the private road, and to thereafter bill the owner(s) of Lot 1 for such repair and maintenance pursuant to the provisions of paragraph 4.1. The owner(s) of Lot 1 shall pay such bill within fifteen (15) days of receipt. Prior to undertaking any maintenance and repair, the owner of Lot 2, or its designee, shall seek to discuss such maintenance and repair with the owner of Lot 1, but its failure to thus discuss such maintenance and repair shall not absolve the owner of Lot 1 from its obligation under paragraph 4.1, nor, if the owners of Lots 1 and 2 discuss such repair and maintenance, shall their inability to agree absolve the owner of Lot 1 from its obligation under paragraph 4.1 4.4 Notwithstanding Section 4.1 to the contrary, if the need for such repair or maintenance is occasioned by the activities by or on behalf of the owner(s) of either Lot 1 or Lot 2 (for example, if construction activities on or with respect to a parry's property create a need for repair), the owner of such Lot shall bear the cost of such repair or maintenance. V. PERSONAL INJURY AND PROPERTY DAMAGE; INDEMNITY; INSURANCE 5.1 Subject to paragraphs 5.2 and 5.3, any liability of the parties for personal injury to any worker employed to make repairs under this Agreement, or to third parties, as well as any liability of the parties for damage to the property of any such worker, or of any third person, as a result of or arising out of repairs and maintenance under this Agreement shall be borne, as between the parties, in the same percentage as they bear the costs and expenses of such construction, repairs, and maintenance. 5.2 RSI shall indemnify and hold harmless the City and their respective officers, employees, invitees, and agents for any loss, damages and expenses (including EASEMENT AND AGREEMENT - 4 1997360 j5 NO 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 RSI 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, invitees 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 RSI under this Section 5.2, the City will notify RSI in writing of the commencement thereof, and, subject to the provisions hereinafter stated, RSI 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 RSI. 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 RSI unless the employment of such counsel has been specifically authorized by RSI. The omission to notify RSI 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. 5.3 City shall indemnify and hold harmless RSI 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 City or its contractors, agents, officers, invitees, or employees under this Agreement, other than claims or proceedings arising from any negligent or unlawful acts or omissions of RSI, its member, or their contractors, agents, officers, invitees, or employees. Promptly after receipt by RSI of notice of the commencement of any action in respect of which indemnity may be sought against the City under this Section 5.3, RSI will notify the City in writing of the commencement thereof, and subject to the provisions hereinafter stated, the City shall assume the defense of such action (including the employment of counsel, who shall be counsel satisfactory to RSI, 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 City. RSI 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 City, unless the employment of such counsel has been specifically authorized by the City. The omission to notify the City 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. EASEMENT AND AGREEMENT - 5 19973601 St 4 D 5.4 Each party shall maintain insurance which covers liabilities arising out of access to or the use of the private road. Each shall seek in good faith to cause the other to be named as an additional insured on such parry's insurance. Each party waives any and all rights of recovery against the other, or against the officers, employees, agents and representatives of the other, for loss of, or damage to, such waiving party or its property or persons on the property of others using the private road, as to any such loss or damage which is insured against under any insurance policy in force at the time of such loss or damage. VI. GENERAL TERMS AND CONDITIONS 6.1 If after the City no longer has an interest in Lot 1, Daley Field Subdivision, a dispute arises between the parties concerning the provisions of this Agreement, and as a condition precedent to suit or action thereon, the dispute shall be submitted to arbitration in the following manner: The party seeking arbitration shall submit to the other party a statement of the issue(s) to be arbitrated and shall designate such parry's nominated arbitrator. The other party shall respond with any additional or counter statement of the issue, or issues, to be arbitrated and shall designate the responding party's arbitrator, all within fourteen (14) days after receipt of the initial notice. The two arbitrators thus nominated shall proceed promptly to select a third arbitrator. The arbitrators shall promptly, as the circumstances allow and within a time established by the majority of the arbitrators, conduct a hearing on the issue or issues submitted to them, and shall put their decision in writing, which decision shall be binding upon the parties. A decision by a majority of the arbitrators shall be the decision of the arbitration panel. The arbitrators shall have authority to award costs and reasonable attorney fees to either party in accordance with the merits and good faith of the positions asserted by the parties. In lieu of appointing three arbitrators and in accordance with the foregoing, the parties may, by written agreement, designate a single arbitrator. Except as provided herein the proceedings under arbitration shall be in accordance with the rules of the American Arbitration Association and the statutes of the State of Montana pertaining to binding arbitration. 6.2 Any notice or other communication transmitted by any party to any other party may be either hand delivered or sent by certified mail, return receipt EASEMENT AND AGREEMENT - 6 1.99736015M requested, to the mailing addresses of the recipient party, or such other place as any party may hereafter designate to the other parties in writing. All such notices and communications shall be deemed sufficiently given and served for all purposes if hand delivered or if so deposited in the United States mail. 6.3 In the event legal action becomes necessary to enforce or interpret the terms of this Agreement, the prevailing party in such action shall be entitled to recover reasonable attorney fees and costs incurred in such action, as determined by the court. In the event of any appeals from such actions, the prevailing party shall be entitled to recover its reasonable attorney fees and costs incurred in such appeals, as determined by the court(s). The terms "costs" shall include, in addition to statutory costs and disbursements, all costs associated with discovery depositions, expert witness fees, and out-of-pocket costs incurred by the prevailing party in the prosecution or defense of the action. For the purpose of this paragraph, the term "action" shall be deemed to include any proceeding commenced in any court of general or limited jurisdiction, including any proceeding commenced in the bankruptcy courts of the United States. 6.4 This Agreement is made in accordance with and shall be interpreted and governed by the laws of the State of Montana. If any action or other proceeding shall be brought on or in connection with this Agreement, the venue of such action shall be in Flathead County, Montana. 6.5 All remedies provided for in this Agreement are distinct and cumulative to any other right or remedy afforded by law or equity and, to the extent permitted by law, may be exercised concurrently, independently, or successively. An action may be maintained to enforce such remedies in the alternative. 6.6 The parties agree to execute all documents necessary to implement the provisions of this Agreement. 6.7 The use of the singular term herein shall include the plural, the masculine shall include the feminine and neuter, and vice versa, as the context requires. 6.8 No waiver, modification or amendment of any term or condition of this Agreement shall be effective unless in writing, executed by all of the parties. No waiver or indulgence by any party of any deviation by any other party from full performance of this Agreement shall be a waiver of the right to subsequent or other full, strict or timely performance. This Agreement may be supplemented only by written documents executed in accordance with the express terms hereof, and it will not be qualified, modified or supplemented by EASEMENT AND AGREEMENT - 7 19973601510 course of dealing, usage of trade or course of performance. Neither the failure nor the delay on the part of any party to exercise any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. 6.9 There are no verbal agreements which qualify, modify or supplement this Agreement. 6.10 If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term of this Agreement, such provision shall be fully severable. This Agreement shall be construed and enforced as if such illegal or otherwise unenforceable provision had never comprised a part hereof. The remaining provisions of this Agreement shall remain in full force and effect and shall not be affected. Furthermore, in lieu of such illegal, invalid or unenforceable provision there shall be added automatically as part of this Agreement a legal, valid and enforceable provision as similar in terms and intent to such illegal, invalid or unenforceable provision as may be legally possible. 6.11 All rights and obligations of the parties hereunder shall be binding upon and inure to the benefit of their heirs, personal representatives, successors and assigns. 6.12 This Agreement and the easement described herein shall run with the land and shall continue so long as the private road described in paragraph 1.4 remains a private road. DATED this 24 day of IX, N-A �L& , 1997. CITY OF KALISPELL a municipal corporation EASEMENT AND AGREEMENT - 8 RSI, L.L.C. a Washington limited liability company By ROSAUERS SUPERMARKETS, INC. Member mm-&N XF-PRI-m- Mr. MIT STATE OF MONTANA ) 19973601510 :ss. County of Flathead ) On this -v� day of �e�c•n6�r- _ , 1997, before me personally appeared to me known to be the 4 - of the CITY OF KALISPELLnicipal corporation that executed the within and foregoing instrument and acknowledged said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned and on oath stated that he is authorized to execute said instrument and that the seal affixed is the corporate seal of said corporation. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal thdy wA year first above written. :y.:*0jA11;4�.9 NOTARY/PUBLIC in and for; the State of t►.. ' s . Montana, residing at NY �'• K Print Name: -/P� �%ier- '`_ My Commission Expires:,ry� STATE OF WASHINGTON ) ss. County of Spokane On this 2N day of 1997, before me personally appeared LARRY D. GELLER, to me known to be .the President of ROSAUERS SUPERMARKETS, INC. the initial member of the limited liability company that executed the within and foregoing instrument and acknowledged said instrument to be the free and voluntary act and deed of said limited liability company, for the uses and purposes therein mentioned and on oath stated that he is authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. QZ o0 ejNO-T AR), PUBLIC t�n1 F:\USERS\16399\EASE-2.!DO ? '� 0� 12/24/97 I% /' ••� w 9-52am 0-6(V-& k _ ZC11ARRY PUBLIC in and for the State of . .=a, residing at 5V6k",."Q Print Name: My Commission Expires: 11- I- 2m t ��i R97 C � 11�VII i111i � 99a5 EASEMENT AND AGREEMENT - 9 ...... . RATE OF + WAM ! . Garrott o/ ffathsN ) R this �S �' _.LSD.. i �WAMMM A4ard.en th4.nawu.f _.._�/ do W6106k 11' M and nwrdad In the .ocands of Fiathead C4w", Ste" of &N. d" . LpCUMENJ N0. 199`736015/ yo ARTICLE 3 Section 3.1. ScQu ncina of Events. CITY. The CITY shall cause plans and specifications to be prepared for signalized intersections (referenced in § 2.2 (g), above) in conjunction with the reconstruction of U.S. Highway *93 South, which will include a realignment of Yd Avenue East, scheduled to begin in 1999 by the Montana Department of Transportation. In the event the Montana Department of Transportation does not reconstruct U.S. Highway #93 as anticipated the CITY shall cause to be constructed temporary traffic signalization at the private drive and U.S. Highway #93, only, on at before September 30, 1999. Construction contracts for said lights shall be let in accordance with Montana law and the State will supervise the construction and installation of said lights in the same manner as other public improvements within the CITY. CITY will use its best efforts to secure realignment of 31 Avenue East with the reconstruction of U.S. Highway #93. In the event 3"' Avenue is not relocated the CITY will pursue alternative financing methods for the relocation. Section 3.2. If CITY has completed or provided to DEVELOPER satisfactory — assurances that it will timely complete the infrastructure improvements for which the CITY is responsible under Section 3.1, above, DEVELOPER will commence construction of its on -site and off -site improvements, after July 15, 1998 (when the property will cease to be used as ballfieids) and on or before September 30, 1999. The CITY and DEVELOPER will coordinate the design and construction of their respective improvements and will require their respective engineers and contractors to coordinate PW6ar21 EXHIBIT G design and construction to ensure maximum efficiency to the CITY and DEVELOPER in theconstruction of the Improvements. Off -site public infrastructure improvements, to be installed at DEVELOPER'S expense, shall be as follows: (a) Storm Water Retention Pond. DEVELOPER shall design and build, in accordance with the City's Standards for Design and Construction, a storm water retention pond for storm water runoff from the Project Property, within an easement granted by CITY on Kalispell City Airport property, pursuant to Section 4.1. (b) Sanitary _Sewer Main. DEVELOPER shall design and build an 8" sanitary sewer main, entirely within an easement granted by the CITY along the Easterly boundary of City Airport Property, together with an easement for access to and egress from such main. Said main shall be installed from the location of the existing main on Lots 1 and 2, Certificate of Survey # 3981, Records of Flathead County, Montana, to the North boundary of the Project Property, or to that point short of said boundary where gravity flow requirements can no longer be maintained with a 3' cover of earth allowing for a sewer main depth of not less than 3' below ground level. Said main shall terminate in a manhole with additional manholes every 450' from the southerly terminus of the main to the northerly end. (c) Other Utilities. Water, electrical, natural gas, telephone ,and cable TV shall be installed at DEVELOPER'S expense from available locations adjacent to the Project Property. (d) Late Comer's Agreement. CITY and DEVELOPER recognize that because DEVELOPER'S construction of the Project is to be deferred for a limited period of time, DEVELOPER may be the first to construct off -site infrastructure improvements described herein, which might thereafter be shared by other developers of sites within Daley Field, or other developers may be the first to construct such improvements. DEVELOPER agrees to negotiate and enter into a Late Comer's Agreement with CITY, binding upon other developer(s) of sites within Daley Field, providing that which ever developer first constructs such improvements shall, to the extent such improvements are used by other developer(s), including the DEVELOPER, be reimbursed, on an equitable basis, by other developers using such improvements. (e) The CITY shall have the option to design and construct the Sanitary Sewer Main referenced in Section 3.2.(b), provided that the design and construction is commenced prior to the time design and construction of said Sanitary Sewer Main is commenced by the Developer. In the event, CITY designs and constructs the Sanitary Sewer Main, in accordance with this paragraph, 3.2. (d) shall have no effect, as to the Sanitary Sewer Main, and DEVELOPER agrees to pay to the Page 7 of 21 City an aliquot part of the construction based upon the square footage of Lot 2, Daley Field Subdivision. ARTICLE 4 Section 4.1. Storm Drain. CITY shall grant an easement for a storm water retention pond, adjacent to the Project Property, on Kalispell City Airport property, together with an easement for access to and egress therefrom. Size of the easement shall be determined by calculating all of the drainage from the Project based on a 10 year-6 hour storm per Montana Department of Transportation Hydraulic Manual. Retention pond shall be a minimum of 30 feet from the sanitary sewer line easement established along the east property line of the City Airport. The Westerly edge of the easement shall be no closer than 150 feet to the center line of existing runway, with no land configuration higher than the elevation of the runway. Section 4.2. Sanil= Sewer. Natural Gas and Electrical. CITY shall grant an easement 30 feet in width, along the Easterly boundary of Kalispell City Airport, for the entire length of Daley Field, for the purpose of installing a sanitary sewer main, natural gas and electrical. Section 4.3. Crossover Easement. CITY and DEVELOPER recognize and agree that the Daley Field Redevelopment will prove most successful if the purchaser of the portion of Daley Filed to the south of the Project Property undertakes or develops one or more uses of such property which are compatible with DEVELOPER'S use. They further recognize however, that such uses could be incompatible and antagonistic to DEVELOPER'S use. DEVELOPER therefore agrees that at such time as the CITY sells the southern portion of the Daley Feld property, the CITY installs (or causes to be installed) a signal at Kelly Road, and the purchaser of such southern portion identifies its intended use(s) of the property, DEVELOPER will negotiate in good faith with the purchaser of such southern portion with respect to a crossover easement, granting to DEVELOPER access to the Kelly Road signal across the southern portion of the Daley Feld property and granting to the purchaser of such southern portion access to the 31 Avenue East signal across the Project Property. Bk ,97,Z Pg 17Z ib d Book 507 Page 117 t3t6.08' \ I N Lu N o.. v Lot 1 2.980 Acres01 NW fComer rnerSE1/4 N/�oy� ( Soetion 20 5£fWl/<�i / \ SN CS 12729 i 0�06 / 97.41' � � / /. &N Op K'pp jib— '?'� 1317.27' °o. ` o� 23.27' o^ .. Z P.O.S. Lot 2 5.257 Acres 4P \ n • of sa �Z o EXHIBIT H DALEY BALLFIELD PHASE I SITE ASSESSMENT FOR THE CITY OF KALISPELL, PLANNING, ECONOMIC, AND COMMUNITY DEVELOPMENT DEPARTMENT BY TETRA TECH INC. October 1996 EXHIBIT I 1.0 Introduction 2.0 Methods 3.0 Site History and Description 4.0 Results 4.1 Record's Search 4.2 Site Reconnaissance 5.0 Conclusions 6.0 Recommendations 7.0 Disclaimer TABLE OF CONTENTS LIST OF FIGURES Figure 1 - Site Location Map Figure 2 - State CERCLIS Sites Location Map 1 1 2 P 2 7 7 7 8 3 5 7. Flathead County Disaster and Emergency Services. Results of the Record's Search are discussed in Section 4.1. The site reconnaissance consisted of a walk over of Parcel y in which observations were made as to evidence or sources of hazardous wastes or petroleum products on site. Results of the site reconnaissance are discussed in Section 4.2. Parcel 6 has always been an undeveloped parcel of land. It was originally sold to the City of Kalispell in 1928. The site is located on the west side of Highway 93 South, south of the Montana National Guard Station, east of the Kalispell airport in Kalispell, Montana (Figure 1). The property, covering 17 acres, consists of five ballfields, a restroom, and a parking lot. A 1937 Soil Conservation Service aerial photograph indicated this area was a hayfield. To the east, the property is bounded by Highway 93 South. To the east of Highway 93 South is a commercial building and a city park. To the south, the property is bounded by a state government building. To the west, the property is bounded by the Kalispell airport and to the west of airport is the Kalispell sewage treatment plant. To the north, the property is bounded by the Montana National Guard Station. North of the National Guard Station is the Kalispell Elks Club. 4.0 RESULTS 4.1 RECORD'S SEARCH As previously stated, a variety of federal, state and local records were reviewed, and individuals interviewed in relation to the site. Results of the record's search are: Federal NPL sites are generally known as Superfund Sites. There are no Federal NPL sites in Kalispell. State CERCLIS sites are similar to NPL sites. They have been defined as sites which contain hazardous wastes or materials and have either not been ranked for the NPL status 2 Tetra Tech Inc. Helena, MT Project: Parcel 4 Date:10/96 Scale: Unknown Drawing: Location Map Figure Number: I File #: Kalis I ■ Site of Figure Page 3 Investigation or their ranking does not qualify for NPL status. There are ten State CERCLIS sites in Kalispell. Of the ten, only two sites are within one mile of the site (Figure 2). The two state sites are: 1. Kalispell Landfill- Willow Glen Road 2. Kalispell Landfill- Cemetery Road Investigations at these sites have indicated that contamination of ground water is low and does not pose significant threat to public health. The ground -water flow direction at the Cemetery Road Landfill is to the south southeast. Potential impacts to the subject property from the CERCLIS sites are therefore minimal. TSD Facilities are transport and disposal facilities which handle RCRA defined wastes. There are no RCRA TSD Facilities in Kalispell. While Kalispell has numerous RCRA waste generators, no RCRA waste generators adjoin or are located at the property. The ERNS List is the Emergency Response Notification List which is recorded by the EPA. The list contains all reported spills and leaks in the United States since 1975. The list was reviewed for all reported incidents in Kalispell. Since 1982 ten spills or releases have been reported in the Kalispell area. None of the reports were for the property. The closest reported spills or releases were at the State CERCLIS sites which as previously mentioned, do not appear to pose a threat to the property. No licensed landfills exist within one half -mile of the site. Review of the Hazardous 4 _ a� WILLOW GLEN LANDFILL •.. • ` --•tip' or J +�.Katiil , � l SITE • r -. Chi Alr\o� l CEMETERY LANDFILL BM Pk 1. raw) ty \ rtt , w %4 (•• Bins 1aO i4g, t 1 \ j I i � � l� •,.. .., ,web LEGEND 7hTetra Tech Inc. Helena, MT I_, -Kalispell `�-emetery Landfill WillowGIen Landfill Project: Parcel- Date:10/96 Sc ale I .'-1000 Drawing: CERCLI.S - SITE ; I nt-Alltitl I IA . Figure Number: 1 File # Kolisp2 - ---- _._.FIquir c pars, 5 Waste Complaint Program file did show that an unlicensed dump site existed within one mile of the site. 7. Leaking UST's List __Two sites with leaking UST's were identified from the state leaking UST list within one half mile of the property. The two sites are: 1. City Service - 1645 Highway 93 South - Facility M# 15-02014. On June 17, 1992 a Phase I Site Assessment was conducted at this site to determine the source of gasoline discovered in the storm sewer system. The source appeared to be from a surface spill. Ground -water at this site is contaminated, although it does not pose a threat to Parcel q The site owner/operator is currently required to analyze the ground -water two times a year. No remedial activity has taken place at the site. 2. Main Stop - 1319 South Main - Facility ID# 15-09820. The gasoline leak associated with this site was discovered on April 29, 1995. Approximately 4,000 gallons of unleaded plus gasoline leaked from an aboveground storage tank. The site is currently under going a Remedial Investigation. The leaking UST list which was reviewed has not been updated since May 1996. There may be additional leak sites that have been discovered in the mean time. Most tanks in the area would be located to the north of Parcel 4 along Highway 93 South and the business district. The investigation at City Service suggests that contamination north of the site flows crossgradient to Parcel q in a southwestern direction indicating that contamination from this area would not present a threat to the property. The only registered UST adjoining the property is north at the Department of Military Affairs. One tank is presently registered at the site. One 1000 gallon gasoline tank. This tank was removed on November 16, 1991. R In addition to the above referenced lists, Tetra Tech also contacted the following: 1. Flathead County Disaster and Emergency Services: No incident reports are on file with the county regarding Parcel 2. Joe Russell - Flathead County Health Department: The gasoline spill located near the City Service gasoline station in 1992 was the only incident that Mr. Russell had on record near Parcel q 4.2 SITE RECONNAISSANCE Tetra Tech personnel performed a site reconnaissance of the Property on October 8, 1996. The reconnaissance determined that the property is a recreational facility (Figure 1). The site has five ballfields and a restroom building. A road exists on the north edge of the property. This road accesses Highway 93 South and is an easement to the airport. The site reconnaissance did not reveal any items of concern. The site is an undeveloped property which consists of recreational ballfields. The site is located adjacent to mostly service oriented commercial businesses. A site reconnaissance found no items of concern. The record's review revealed a variety of State CERCLIS sites, RCRA generators, Leaking UST's and Registered UST's within a half mile radius of the Property. Of these sites, only Montana National Guard adjoins the Property. No environmental concerns have been detected at the site. As for the other sources of contamination, not adjoining the property, it appears that ground- water contamination at UST and CERCLIS sites is generally flowing cross gradient or away from the Parcel reducing any threat of impacts. In summary, it appears that: 1. Potential impacts to the site from off -site contaminant sources is minimal. 2. No on site contamination was identified. . maxo) ARI , Based on the results of the Phase I Site Assessment, the following recommendation is proposed. The City of Kalispell may have their own recommendations based on internal policy. 1. Sell the property with a stipulation that the buyer will accept environmental liabilities relating to the site if they become apparent at a later date. 7 This report was compiled based partially on information supplied to Tetra Tech Inc. from outside sources and other information that is in the public domain. The conclusions and recommendations herein are based solely on the information Tetra Tech obtained in compiling the report. Documentation for the statements made in the report is on file at Tetra Tech's Helena, Montana office. Tetra Tech makes no warranty as to the accuracy of statements made by others that may be contained in the report, nor are any other warranties or guarantees, expressed or implied, included or intended by the report except that it has been prepared in accordance with the current generally accepted practices and standards consistent with the level of care and skill exercised under similar circumstances by other professional consultants or firms performing the same or similar services. Since the facts forming the basis for the report are subject to professional interpretation, differing conclusions could be reached. Tetra Tech does not assume responsibility for the discovery and elimination of hazards which could possibly cause accidents, injuries or damage. Compliance with submitted recommendations or suggestions does not assure elimination of hazards or the fulfillment of clients' obligations under local, state or federal laws or any modifications or changes to such laws. None of the work performed hereunder shall constitute or be represented as a legal opinion of any kind or nature, but shall be a representation of findings of fact from records examined. Prepared by: !s Reviewed by: ii 0 1C-1W 8