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5. Haven Field Sale AgreementAgenda -May 27, 1997 AGENDA ITEM 5 - HAVEN FIELD SALE AGREEMENT ACTION REQUIRED: This is currently "bouncing" between attorneys. We will have this on the agenda for action when they are ready. A RESOLUTION will be required to authorize the final sale of this property. This Agreement made as of , 1997, by and between the City of Kalispell, a municipal corporation, hereinafter CITY, and The Outlaw Inn, a Montana joint venture comprised of Richard A. Dasen; Richard A. Dasen as Trustee for the Dasen Children's Trust; and Southgate Mall Associates LLP, a Montana limited liability partnership, with its principal place of business at 1701 Highway 93 South in Kalispell, Montana, hereinafter DEVELOPER: Whereas, the CITY is a general powers city, existing and organized under the constitution of the State of Montana; and Whereas, the CITY has elected to exercise the powers of an urban renewal agency, pursuant to Title 7, Chapter 15, Parts 42 and 43, Montana Code Annotated as amended (the "Act") and Ordinance No. 1242, as amended adopted by the City Council on , 1997; and Whereas, Ordinance No. 1242 adopted the Kalispell City Airport/Athletic Complex Redevelopment Plan Analysis as the urban renewal plan (the Redevelopment Plan) for the urban renewal area known as the Kalispell City Airport/Athletic Complex Redevelopment Area (the Redevelopment Area); and Whereas, Ordinance No. 1242 states that in order to implement and effectuate the Redevelopment Plan, it will be necessary for the CITY to take certain actions with reference to minimizing hazards to navigation, developing the airport in accordance with an airport layout plan, increasing development opportunities on nearby properties, promoting compatible land use in and around the airport, establishing a funding mechanism for airport properties, and establishing a priority schedule for plan implementation; and Whereas, the Redevelopment Plan, as adopted and implemented, contains a tax increment financing provision coextensive with the Redevelopment Area; and Whereas, Ordinance No. 1242 approved as an urban renewal project the sale of Haven Field, to be located within the Redevelopment Area (the Project), and authorized entering into a development agreement with a developer in order to accomplish the development of the Project, upon terms and conditions consistent with the Act, the Redevelopment Plan, and Ordinance No. 1242; and Whereas, DEVELOPER submitted a proposal to purchase said Haven Field and develop said property in accordance with the Redevelopment Plan, NOW, THEREFORE, in consideration of the foregoing premises and the mutual obligations set forth in this Agreement, the parties hereto agree as follows: IAwp\out1aw1.wpd Page 1 of 15 ARTICLE 1 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. "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 The Outlaw Inn, a Montana joint venture comprised of Richard A. Dasen; Richard A. Dasen as Trustee for the Dasen Children's Trust; and Southgate Mall Associates LLP, a Montana limited liability partnership. "Project" means the Project described in Article 2. "Project Area" means that tract of land bounded by 18`' Street West on the North, 3' Avenue East on the East, Lions Park Street on the South and U.S. Highway 93 on the West. "Project Property" means the real property in the Project Area on which the Project will be constructed, the legal description of which is shown on Exhibit "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. I:\wp\outlaw 1.wpd Page 2 of 15 "Section" means a Section of this Agreement, unless used in reference to Montana Code Annotated. "Site Plans" means the plans 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, dated as of "State" means the State of Montana. "Tax Increment" means that portion of the real estate taxes paid with respect to the Redevelopment Property which is remitted to the CITY as tax increment pursuant to the Tax Increment Financing provisions of the Montana Urban Renewal Law. "Tax Increment Financing Plan" means the Tax Increment Financing Plan for Tax Increment Financing by the City Council and dated "Time Table" means the schedule of performance dates for certain actions by DEVELOPER under this Agreement, attached hereto as Schedule and made a part hereof. "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 (except disputes which could be resolved by using union labor), fire or other casualty, or lack of materials, provided that within 10 days after a parry impaired by the delay has knowledge of the delay it shall give the other party notice of the delay and the estimated length of delay, and shall give the other party notice of the actual delay within 10 days after the cause of the delay has ceased to exist. The parties shall pursue with reasonable diligence the avoidance and removal of any such delay. Unavoidable delay shall not extend performance of any obligation unless the notices required in this definition are given as herein required. ARTICLE 2 Representations and Warranties Section 2.1. By CITY. CITY makes the following representations to DEVELOPER: (a) The CITY, under the Act and Ordinance No. 1242 has the power and authority to enter into this Agreement and carry out the obligations hereunder. (b) The Project is an "urban renewal project" within the meaning of the I:\wp\outlawl.wpd Page 3 of 15 Act and has been approved by the City Council in accordance with the terms of the Act and Ordinance No. 1242. (c) The Urban Renewal Plan, as approved by Ordinance No. 1242, contains a provision for tax increment financing for the Redevelopment Area and the incremental increase in taxes based on the value of ad valorem property within the area after the 1996 base year shall be collected, segregated by the County Treasurer, and transferred to the City for the benefit of the Redevelopment Area. (d) The CITY has determined that sewer and water utilities necessary to serve the Project are available within the public rights -of -way adjacent to the Project Area. The Project Area has adequate access from 18' Street West and 3`d Avenue East and, subject to Montana Department of Transportation approval, from U.S. Highway 93 South. (e) The CITY advises that the Redevelopment Area is subject to building and use restrictions imposed pursuant to the Kalispell Zoning Ordinance, including, but not limited to, prohibitions on the display of billboards and/or off -premises signs. Section 2.2. By DEVELOPER. DEVELOPER represents and warrants that: (a) DEVELOPER, a Montana joint venture comprised of Richard A. Dasen; Richard A. Dasen as Trustee for the Dasen Children's Trust; and Southgate Mall Associates LLP, a Montana limited liability partnership duly organized under the laws of the State of Montana, licensed to conduct business in the State of Montana, has the power to enter into this Agreement, and has duly authorized the execution, delivery and performance of this Agreement. (b) DEVELOPER is ready, willing and able to acquire the Redevelopment Property from the CITY. (c) DEVELOPER will, subject to unavoidable delays, construct, operate and maintain on the Project Property a retail and commercial development described in the Site Plans, together with all related on -site improvements, including, but not limited to, off-street parking, landscaping, on -site utilities and any off -site infrastructure improvements necessary to properly serve the Project Area (the Project). The parties agree that notwithstanding the Site Plans, the Project is in the formative stages and may change in some respects during the development process; however, any and all changes shall be subject to approval by the CITY. I:\wp\outlaw 1.wpd Page 4 of 15 (d) DEVELOPER estimates that the cost of constructing the Project as described in (c) is $6,229,700.00 based on the following estimates: Description of Project Land Acquisition Site Improvements Building Construct; ^n Cost of Fixtures, Furniture, Equipment and Inventory Estimated Cost $ 738,700.00 $ 560,000.00 $4,590,140.00 $ 340,860.00 TOTAL $6,229,700.00 (e) DEVELOPER estimates, based upon information available to it and the projected cost of constructing the Project, that the Assessed Valuation of the improved real property constituting the Project, inclusive of furniture, fixtures, equipment, and other taxable personal property will be at least $6,229,700.00. The parties understand that the actual Assessed Valuation of the DEVELOPER'S portion of the Project as determined by the Montana Department of Revenue may be greater or lesser than the estimate. (f) DEVELOPER has obtained, or has available to it, sufficient funding to complete the construction of the Project. ARTICLE 3 Infrastructure Improvements CITY and DEVELOPER agree that there are no significant modifications or upgrading of off -site improvements necessary for construction of the Project. However, if any modifications or upgrade of off -site improvements are required, DEVELOPER agrees to construct any such improvements as part of the Project. ARTICLE 4 Lion Park Street The CITY shall cause to have re -surveyed the Project Property so as to include the undedicated and undeeded street commonly known as Lion Park Street. DEVELOPER shall IAwp\out1aw1.wpd Page 5 of 15 design appropriate access and parking arrangements to complement and encourage the public use of Lions Park, and shall grant to the CITY an easement of ingress and egress for the purpose of maintaining a sewer service to the Lion Park Visitor's Center. ARTICLE 5 Construction of Project Section 5.1. Site Plans and Construction Plans. DEVELOPER shall submit Site Plans and Construction Plans to the CITY prior to obtaining any building permits. Site Plans shall depict the entire Project Area and shall show the location of the 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. No approval by the CITY of the Construction Plans shall relieve the DEVELOPER of the obligation to comply with the terms of this Agreement, the terms of the Redevelopment Plan, applicable federal, state and local laws, ordinances, rules and regulations, or to properly construct the Project. No approval by the CITY shall constitute a waiver of an Event of Default. Any disapproval of the Site Plans and Construction Plans shall set forth the reasons therefore, and shall be made within 30 days after the date of their receipt by the CITY. If CITY rejects the Site Plans or Construction Plans in whole or in part, DEVELOPER shall submit new or corrected Site Plans and Construction Plans within 30 days after written notification to DEVELOPER of the rejection. The provisions of this Section relating to approval, rejection, and re -submission of corrected Site Plans and Construction Plans shall continue to apply until the Site Plans and Construction Plans have been approved by the CITY. If the CITY rejects the corrected Site Plans or Construction Plans, then the DEVELOPE& shall have the right to withdraw from this contract and to fully terminate all of its duties and obligations under this Agreement. Section 5.2. Construction of the Project. (a) Subject to unavoidable delays, DEVELOPER will construct the Project without encroachment onto any other property all in accordance with the Site Plans, the Construction Plans and the Time Table. DEVELOPER will be responsible for the supervision of and completion of the on -site improvements listed on Schedule . Neither party shall exercise any control over the other IAwplout1aw1.wpd Page 6 of 15 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 approved by the CITY. DEVELOPER shall promptly begin and diligently complete all on -site improvements listed on Schedule . 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 listed on Schedule (c) DEVELOPER shall not interfere with, or construct any improvements over, any public street or utility easement without the prior written consent of the CITY. All connections to public utility lines and facilities shall be subject to approval of the CITY and any private utility company involved. All street and utility installations, relocations, alterations and restorations shall be made at DEVELOPER'S expense. DEVELOPER, at its own expense, shall replace any public facilities or utilities damaged during construction of the Project. Section 5.3. Certificate of Completion. (a) Promptly after completion of the Project, in accordance with this Agreement, DEVELOPER should apply for a Certificate of Completion. It will be incumbent on DEVELOPER to provide the CITY with a certificate of substantial completion from DEVELOPER'S architect, and the CITY shall furnish DEVELOPER with an appropriate Certificate of Completion as conclusive evidence of satisfaction and termination of the agreements and covenants of this Agreement (excepting those covenants and restrictions which expressly survive the filing of the Certificate of Completion, and except those obligations of the DEVELOPER described in Section hereof which pertain to the obligations of DEVELOPER to construct the Project). (b) If the CITY shall refuse or fail to provide a Certificate of Completion, the CITY shall, within 15 days after the DEVELOPER provides the architect's certificate referenced in Section 5.3.(a), provide the DEVELOPER with a written statement specifying in what respect DEVELOPER has failed to complete the Project in accordance with this Agreement, or is otherwise in default, and shall specify what measures or acts will be necessary, in the opinion of the CITY, for DEVELOPER to obtain the Certificate of Completion. Section 5.4. Phasing of Completion. Notwithstanding any other term of this Agreement, the parties specifically agree that the Project can be performed in phases. Thus, I:\wp\outlawl.wpd Page 7 of 15 upon completion of a discreet portion of the Project, DEVELOPER may proceed to obtain a Certificate of Completion for that portion of the Project pursuant to Section 5.3. Thereafter, the provisions and restrictions of Section 8.2 shall no longer apply to the completed portion. Section 5.5. CITY'S Remedy for Failure to Construct. DEVELOPER recognizes that the CITY intends to utilize ad valorem tax revenue generated by the Project to finance public improvements to the Kalispell City Airport and other infrastructure improvements which will be of public benefit. It is contemplated that the Project property will generate annual tax revenue to the City of Kalispell in the amount of $124,000.00 upon completion of the Project, exclusive of city or county special assessments. DEVELOPER, therefore, covenants to pay t,, the CITY any difference between the amount of tax actually generated by the Project Property, including any portion of the Project transferred to another owner, if permitted as hereafter set forth in Section 8, and the amount contemplated by this Agreement for a period of ten years commencing January 1, 1998. Payment under the provisions of this paragraph shall be made directly to the CITY, after certifying the tax generated by The Project through the City Finance Department. ARTICLE 6 Defense of Claims; Insurance; Developer's Risk Section 6.1. Defense of Claims. DEVELOPER shall indemnify and hold harmless the CITY and their respective officers, employees and agents for any loss, damages and expenses (including attorney's fees) in connection with any claim or proceeding arising from damages or injuries received or sustained by any person or property by reason of any actions or omissions of DEVELOPER or its contractors, agents officers or employees under this Agreement, other than claims or proceedings arising from any negligent or unlawful acts or omissions of the CITY or their contractors, agents, officers, or employees. Promptly after receipt by the CITY of notice of the commencement of any action in respect of which indemnity may be sought against the DEVELOPER under this Section 6.1., such person 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 parry pursuant hereto, otherwise than under this section. IAwp\outlawl.wpd Page 8-of 15 Section 6.2. Indemnity Agreement. DEVELOPER shall execute the Indemnity Agreement and shall cause the Indemnity Agreement to be executed by , and shall deliver the Indemnity Agreement to the CITY simultaneously with the execution and delivery of this Agreement by the DEVELOPER. Section 6.3. Insurance. (a) DEVELOPER will provide the following insurance at the time it applies for the necessary building permits for the project and will maintain such insurance at all times during the process of constructing the Project, and at the request of the CITY will furnish the CITY with copies of and proof of payment of premiums on the following insurance: (i) Builder's risk insurance, written on the so-called "Builder's Risk —Completed Value Basis", in an amount equal to 100% of the replacement cost of the Project at the date of completion, naming the CITY as an additional insured, with coverage on the so-called "all risk", non -reporting form of policy; (ii) Comprehensive general public liability insurance, including personal injury liability (with employee exclusion deleted) and automobile insurance, including owned, non -owned and hired automobiles, against liability for injuries to persons and/or property with respect to the Redevelopment Property, in the minimum amount for each person of $750,000 and $1,500,000 for each occurrence, endorsed to show the CITY as an additional insured; and (iii) Worker's Compensation insurance in compliance with all statutory requirements. The policies of insurance required under clauses (i), (ii), and (iii) above shall be in form and content satisfactory to the CITY and shall be placed with financially sound and reputable insurers licensed to transact business in the State of Montana. The policies shall contain an agreement of the insurer to give not less than 30 days advanced written notice to CITY in the event of cancellation of such policy or change affecting the coverage. (b) The provisions herein with respect to insurance of the Project shall terminate at such time as DEVELOPER has received a Certificate of Completion under Section 5.3. I:\wp\outlawl.wpd Page 9 of 15 ARTICLE 7 Payment of Taxes Section 7. L Taxes. DEVELOPER shall pay when due all real estate taxes and installments of special assessments payable on the Project Property and any other property the DEVELOPER owns w'itnin Flathead County. DEVELOPER further agrees not to contest the assessed valuation of the Project Property, inclusive of furniture, fixtures, equipment, and other taxable personal property up to $6,229,700.00 and further not to protest the taxes on such property for the first 5 years after completion. Section 7.2. In Lieu of Payment. DEVELOPER further agrees to make the payment in lieu of taxes contemplated in Section 5.5. ARTICLE 8 Prohibitions Against Assignment and Transfer Section 8.1. Transfer of Ownership. Subject to Section 5.4 and the leasing of space to tenants in completed portions of the Project, the DEVELOPER recognizes that a transfer of a controlling interest in the DEVELOPER or any other act of transaction resulting in a significant change in the ownership are of particular concern to the CITY. Prior to completion of the Project as certified by the CITY, except in the case of the death or incompetency of the share!k'nlders 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 degree thereof, by any other method or means. Section 8.2. Transfer of Property and Assignment. DEVELOPER has not made and will not make, or suffer to be made, any total or partial sale, assignment, conveyance, lease, or other transfer, with respect to this Agreement or the Project or Property or any part thereof or any interest therein, or any contract or agreement to do any of the same, without the prior written approval of the CITY, which approval shall not be unreasonably withheld if DEVELOPER has completed the Project. The CITY shall be entitled to require as conditions to any such approval that: (i) the proposed transferee have the qualifications and financial responsibility, as reasonably determined by the CITY, necessary and adequate to fulfill the obligations undertaken in this Agreement by DEVELOPER, (ii) the proposed transferee, by recordable instrument satisfactory to the CITY shall, for itself and its successors and assigns, assume all of the obligations of DEVELOPER under this Agreement. No transfer of, or change with respect to, ownership in the Project Property or any part thereof, or any interest therein, however consummated or occurring and whether I:\wp\outlawl.wpd Page 10 of 15 voluntary to involuntary, shall operate legally or practically, to deprive or limit the CITY of or with respect to any rights or remedies or controls provided in or resulting from this Agreement with respect to the Project Property and the construction of the Project that the CITY would have had, had there been no such transfer or change. There shall be submitted to the CITY for review of all legal documents relating to the transfer. In the absence of specific written agreement by the CITY to the contrary, no such transfer or approval by the CITY thereof shall be deemed to relieve DEVELOPER, or any other party bound in any way by this Agreement, or otherwise with respect to the construction of the Project, from any of its obligations with respect thereto. Section 8.3. InfOCtlia-Lion as to Ownership of Developer. DEVELOPER will promptly notify the CITY of any changes in the ownership of DEVELOPER, or with respect to the identity of the parties in control of DEVELOPER or the degree thereof, of which it has been notified or otherwise had knowledge. DEVELOPER shall, at such time or times as the CITY may request, furnish the CITY with a complete statement, subscribed and sworn to by an officer of the DEVELOPER, setting forth all of the owners of DEVELOPER and the extent of their respective holdings. Section 8.4. Termination of Limitations on Transfer. All provisions contained in this Article 8 with respect to limitations on the ability of the DEVELOPER to transfer the Project Property or the Project, or any portion thereof shall terminate with respect to the Project at such time as a Certificate of Completion has been issued by the CITY under Section 5.3 of this Agreement with respect to the Project. All provisions contained in this Article 8 with respect to limitations on the DEVELOPER making changes in its ownership structure shall terminate at such time as a Certificate of Completion has been issued pursuant to Section 5.3 with respect to all the Project. ARTICLE 9 Events of Default Section 9.1. Events of Default. The following shall be "Events of Default" under this Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement (unless the context otherwise provides), any one or more of the following events which occurs prior to the issuance of the Certificate of Completion by the CITY under Section 5.3 of this Agreement with respect to the Project and continues for more than 30 days after notice by the CITY to DEVELOPER of such 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 or reconstruct the minimum I:\wp\outlawl.wpd Page 11 of 15 improvements as required hereunder. (b) Failure of DEVELOPER to furnish the Site Plans or Construction Plans as required hereunder. (c) Failure of DEVELOPER to pay real estate taxes or in lieu of as required hereunder. (d) Failure of DEVELOPER to observe and perform any other covenant, condition, obligation or agreement on its part to be observed or performed hereunder. (e) If DEVELOPER shall admit in writing its inability to pay its debts generally as they become due, or shall file a petition in bankruptcy, or shall make an assignment for the benefit of its creditors, or shall consent to the appointment of a receiver of itself or of the whole or any substantial part of the Redevelopment Party. (f) If DFN7FT.OPER shall file a petition or answer seeking reorganization or other arrangement under the federal bankruptcy laws. (g) If DEVELOPER, on a petition in bankruptcy filed against it, be adjudicated a bankrupt, or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of the DEVELOPER, a receiver of all or substantially all of its property, or approve a petition seeking reorganization or arrangement under the federal bankruptcy laws, and such adjudication, order or decree shall not be vacated or set aside or stayed within 60 days from the date of entry thereof. (h) If DEVELOPER is in default under any Mortgage and fails to cure any such default within the time period provided for in the Mortgage. Section 9.2. Remedies on Default. Whenever any Event of Default referred to in Section 9.1 occurs, the CITY may take any one or more of the following actions: (a) Suspend its performance under this Agreement until it receives assurance trom 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. L\wp\outlawl.wpd Page 12 of 15 (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. Section 9.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to the CITY is intPnded to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under the Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver hereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the CITY or DEVELOPER to exercise any remedy reserved to it, it shall not be necessary to give notice, other than such notice as may be required under this Agreement. Section 9.4. Waivers. All waivers by the CITY, shall be in writing. If any provision of this Agreement is breached by either parry and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other concurrent, previous or subsequent breach hereunder. ARTICLE 10 Additional Provisions Section 10.1. Conflict of Interests; the City Representatives Not Individually Liable. No member, official, employee, or consultant or employees of the consultants of the CITY shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official, consultant or the consultant's employees or employee participate in any decision relating to this Agreement which affects his or her personal interests or the interests of any corporation, partnership, or association in which he or she is directly or indirectly interested. No member, official, consultant or the consultant's employees, or employee of the CITY shall be personally liable to DEVELOPER, or any successor in interest, in the event of any default or breach by the CITY or for any amount which may become due to DEVELOPER or successor or on any obligations under the terms of this Agreement. Section 10.2.Equal Employment Opportunity. DEVELOPER, for itself and its successors and assigns, agrees that during the construction of the minimum improvements it will comply with any applicable affirmative action and non-discrimination laws or regulations. I:\wp\out1aw1.wpd Page 13 of 15 Section 10.3. Restrictions on Use. DEVELOPER agrees for itself, and its successors and assigns, and every successor in interest to the Project Property, or any part thereof, that DEVELOPER, and such successors and assigns, shall devote the Project Property to, and only to and in accordance with, the uses specified in the Redevelopment Plan and this Agreement, and shall not discriminate upon the basis of race, color, creed, sex or national origin in the sale, lease, or rental or in the use of occupancy of the Redevelopment Property or any improvements erected or to be erected thereon, or any part thereof. Section 10.4. Titles of Articles and Sections. Any titles of the several parts, Articles, and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 10.5. Notices and Demands. Except as otherwise expressly provided in this Agreement, a notice, demand, or other communication under this Agreement by either party to the other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally; and (a) in the case of the DEVELOPER, addressed to or delivered personally to DEVELOPER, (b) in the case of the CITY, addressed or delivered personally to the City {r -- Manager, City of Kalispell, PO Box 1997, Kalispell, Montana 59903-1997, or at such otiler address with respect to either such party as that party may, from time to time, designate in writing and forward to the other as provided in this Section. Section 10.6. Counterparts. This Agreement is executed in any number of counterparts, each of which shall constitute one and the same instrument. I:\wp\out1aw1.wpd Page 14 of 15 IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as the date first above written. Approved as to form: City Attorney I:\wp\out1aw1.wpd Page 15 of 15 CITY OF KALISPELL By City Manager By Finance Director OUTLAW INN, a Montana Joint Venture, etc. By Richard A. Dasen SOUTHGATE MALL ASSOCIATES