06. KDC Site - Approval of SaleAgenda -October 6, 1997
AGENDA ITEM 6 - KDC SITE -APPROVAL OF SALE -AUTHORIZATION FOR CITY
MANAGER TO SIGN FINAL DEVELOPMENT AGREEMENT
BACKGROUND/CONSIDERATION: Since the September 15 Council Meeting, the staff has
met with and discussed the various factors for the sale of this property to Irwin Davis Company. We
have been able to agree to terms that should be satisfactory for us. As a summary the m,or deal
points are outlined below:
1. The brokerage fee that was discussed at our prior meetings will be paid by the buyer. The
City will not be responsible for any of these costs.
2. The project will be built in phases. The first phase of the project shall be no less than 18,000
square feet to be constructed on the southeast corner of the property. Construction shall
begin no later than August 1, f998.
3. The second phase of the project shall be no less than 12,000 square feet constructed on the
northern portion of the property fronting Center Street. This phase shall commence
construction December 31, 1999. If the buyer has not begun construction by that date, the
City shall have the right to repurchase the northern portion of the property at the same price
($6.65 psi) within 60 days (commencing on January 1, 2000). If the City does not desire to
repurchase the property, the buyer shall have no further development obligation and may sell
the property. This parcel of property will be approximately 140 feet by 185 feet or 25,900
square feet.
4. With the exception of the terms outlined above, the buyer shall not transfer or sell any portion
Agenda -October 6, 1997
of the property until the completion of the planned Phase I improvements.
5. The buyer shall not rely on the income approach of valuing property when contesting any
property taxes or assessments. The National Flood property is not a part of this agreement.
However, Irwin Davis Company may bid for this property to improve their holdings.
RECOMMENDATION: At this time, I believe all of the concerns voiced by the Council and staff
concerning this deal have been addressed in favor of the City. To enable us to fulfill a very long
standing goal of the sale and development of the old college property, I highly recommend the
approval of the sale and the authorization for the City Manager to sign the development agreement
with the deal points outlined above and within the letter of September 11, 1997 from Woods and
Water Realty.
We have enclosed a "draft" copy of the development/purchase agreement that outlines all of the
commitments of the buyer and/or seller (City). This is 90% complete but some language questions
remain. There will be no major changes to this agreement or draft. If a major change should come
up, we will return to you for discussion of the changes prior to signing the document.
ACTION REQUIRED: A MOTION to direct the City Manager and the City Attorney to compile
a development agreement for this property with Irwin Davis Company and to authorize the City
Manager to sign the agreement when completed to their satisfaction.
ADDITIONAL INFORMATION: I have enclosed cost estimates and a memo from Larry Gallagher
summarizing the CBD/KDC site improvements that we have anticipated to be done in conjunction
Agenda -October 6,1997
with the Irwin Davis project. We budgeted a total of $1,786,000 of infrastructure improvements to
this area. The Irwin Davis project does not add any costs with the exception of two concrete
driveway approaches at $1,500 estimated costs. The Irwin Davis proposal does increase the need
to install the signals at First Avenue and Center Street prior to the project completion since there will
be parking lot entrances causing more traffic movements that will require a "platooning" effective for
traffic control. By "platooning" the traffic, the vehicles existing or turning into the parking lot will
be able to do so under controlled conditions, increasing the safety of the entire block's traffic.
Upon signing of the purchase and development agreement, I will be requesting from the Council
authorization to proceed with the design of the improvements as outlined in Mr. Gallagher's
spreadsheet and as approved within this year's budget. I would anticipate this authorization request
to be at the October 20' Council Meeting.
1
1 cll 0
Incorporated 1892
Planning, Economic & 248 Third Avenue East
Community Development Department (406) 758-7740
P.O. Box 1997 (406) 758-7739 (office fax)
Kalispell, MT 59903-1997 (406) 758-7758 (City Hall fax)
To: Clarence Krepps, City Manager
From: Larry Gallagher, PECDD Director
Subject: Cost Estimates for CBD Public Infrastructure Improvements and
Recommendation to Proceed with Design and Engineering and
Preparation of Bid Specifications.
Date: October 2, 1997
The attached summary spread sheet provides preliminary cost estimates for
implementing public infrastructure improvements identified and approved in the
City's FY98 Budget.
The estimates are preliminary and based on estimates provided to Ross Plambeck by
Pacific Power, PTI, TCI, Quantum Electric, and Public Works. They represent the best
estimate available at this time and cannot become more accurate until the City enters
into a contract for design and engineering, including preparation of cost estimates, and
the bid documents are completed. I recommend that you request City Council approval
to move forward with this next phase of the work as soon as possible. The estimate
includes the cost of engineering and design and a 20% contingency.
The 20% contingency has been added to provide a high side estimate because of the
complexity of undergrounding utilities. The project is for the entire length of 1It Alley
East from Center Street to 4th Street East and there may be additional items to consider
including: storm drainage improvements (especially to handle roof drainage and
disconnecting them from sanitary sewer), decorative street lights, sidewalk replacement
adjacent to the alley driveway approaches; and additional security lighting for the alleys
and abutting parking lots.
These public infrastructure improvements have been contemplated in the last four City
budgets and moving forward with the work now will allow the City a great opportunity,
perhaps fleeting, to participate with Pacific Power and PTI in a 50-50 cost sharing of
undergrounding their utilities. Utilities (Montana Power) normally do not contribute hard
dollars to projects such as this one, but under current PSC rules, Pacific Power must
contribute 50% of the eligible cost. The PSC may be asked to modify or eliminate the
shared cost requirement in the future.
EOUP[ r.OLIV-47
OPPORTUNITY
Clarence Krepps, City Manager
Page 2
October 2, 1997
Several years ago the City relocated and placed underground the utilities located in
1 st Alley West as part of an overall plan to improve the appearance and parking
adjacent to the alley. It succeeded in that objective and improved the function and
capacity and overall safety of utilities as well. The City received many compliments for
its tax increment participation in the project.
This refined, yet still preliminary, total cost estimate is less than the amount budgeted
for these activities based on the best guess estimate developed over the years for City
budget consideration and approval. The work should be done now to take advantage
of utility company participation and cost sharing, to enhance the public investment in its
infrastructure, to improve utility company (including the City) capacity to serve its
customers with modern equipment capable of handling the loads put on utilities today,
to upgrade all utilities to the extent feasible and assuring availability for the continued
growth and expansion of the CBD. The reasons are many and have been discussed by
planners and policy makers for many years. If the work is going to get done it should
get underway as soon as possible.
Please review the estimates and provide your suggestions on how to move forward with
this work. Please contact Ross Plambeck with any questions you may have regarding
the preliminary estimates.
Cost Estimates for
Urban Renewal/CBD Off -Site Public Infrastructure Improvements
Estimates are preliminary and will be refined when
design and engineering are completed.
Infrastructure
Undergrounding
FY98
Improvements:
Utilities for
Budget
Center St.
Remaining
Utilities &
to Liberty
21/2 blocks
Traffic Signal
Theater
(City Share)
Undergrounding of Utilities
Center Street to SW comer of Liberty Theater (1 112 blocks)
Electrical/City's 50% share (per Pacific Power estimate)
(PP will pay the other 50% of eligible costs)
Conduit Material (City's Responsibility)
Installation of Conduit/Labor (City's Responsibility)
Electrical Service Change over to adjoining buildings
(guestimate made by Quantum Electric per Pacific Power Request)
Telephone/City's 50% share (perPTI estimate)
(PTI will pay the other 50% of eligible costs)
Cable TV (per TCI estimate)
Concrete Alley Replacement (450 LF x 20' width)
(south 1/2 of alley is badly broken -up and trenching is difficult
because alley is 8" thick concrete with rebar)
Street AsphalttRemove & Replace (90SY x $18.50)
Undergrounding Utilities Total
Standard Concrete Sidewalk Replacement (600 LF)
excavation of old basement walls will cause extensive damage
to the sidewalks. Large sections of existing sidewalks are broken -up,
and installation of street trees, antique lights and conduit will
require removal of many sections)
Concrete Curb & Gutter Replacement
(the old driveways were left in place awaiting new development)
Concrete Driveway Approaches (KDC site Specific)
Street Trees (4)
(will continue the theme started in the CBD)
Decorative Antique Street Lights (8)
(will continue the theme started in the CBD)
Traffic Signal - First Ave. East & Center Street
Slipline 10" Sewer
Total
20% Contingency
15% Engineering
Total Project Estimate
Combined Project Total - Center St. to 4th St. East.
Difference - Incr(Decr) from Budgeted Amount
$70,000 $140,000
$31,470
$61,600
$14,820
$36,510
$18,000
$102,000
$36,330 $217,965
$2,040 $3,240
$52,650 $87,750
$1,665 $3,330
$226,976 $652,395
$16,500
$2,000
$1,500
$2,000
$40,000
$1,676,000
$120,000
$110,000
$68,000
$107,730
$476,975
$760,125
$95,395
$152,025
$85,856
$136,823
$658,226
$1,048,973
$1,786,000
$1,707,198
($78,802)
02-Oct-97
4i 044"ti41v 4,1a
THIS AGREEMENT is made and entered into as of , 1997,
by and between the City of Kalispell, a municipal corporation,
organized and existing under the laws of the State of Montana,
hereinafter CITY, and Irwin Davis & Company, a Washington limited
liability company, with its principal place of business at 13522 NE
93 Street, Redmond, WA 98052, hereinafter IRWIN.
WHEREAS, CITY is the owner of certain real property, described
as Lots 1 though 14, Block 36 and Lots 1 through 4 and the North 7"
of Lot 5, Block 45, Kalispell, Montana, and
WHEREAS, CITY is authorized to dispose of the said property
under the Montana Urban Renewal Law for purposes consistent with
the Downtown Urban Renewal Plan for the City of Kalispell, and
WHEREAS, IRWIN desires to purchase from the CITY said property
for the construction of retail/office complex in accordance with
Development Agreement, attached hereto and thereby made a part
hereof.
NOW, THEREFORE, the parties agree as follows:
1. IRWIN agrees to purchase from CITY and CITY agrees to
sell to IRWIN certain real estate located in Kalispell,
Flathead County, Montana,- described as follows: -
Lots 1 through 14, Block 36 and Lots
1 through 4 and the North 7" Block
45, Kalispell, Flathead County,
Montana.
2. PURCHASE PRICE. The purchase price to be paid by IRWIN to
CITY shall be in the sum of Four Hundred and Nineteen
Thousand, Four Hundred and Ninety Three Dollars
($419, 493.00) .
3. PAYMENT OF PURCHASE PRICE. The purchase price shall be
paid by IRWIN to CITY in the following manner:
A. The sum of Twenty One Thousand Dollars ($21,000.00)
as an earnest money down payment, put in escrow
upon acceptance of this Purchase Agreement.
B. The balance of the purchase price in the amount
Three Hundred and Ninety Eight Thousand, Four
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October 3, 1997 1
Hundred and Ninety Three Dollars ($398,493.00)
shall be due and payable to the Sellers at closing.
4. CONTINGENCIES. IRWIN shall have until March 16, 1998 to
satisfy itself concerning the following contingencies
relating to the purchase of said property:
A. Review and approval of all environmental, soils and
engineering reports associated with the property;
B. Completion of IRWIN'S feasibility analysis in a
form acceptable to IRWIN,
C. Receipt of financing commitment.
IRWIN shall have the right to extend the Contingency
Period for an additional ninety (90) days for additional
consideration of $10,000.00, non-refundable, presented to
the CITY on or before March 16, 1998
In the event the contingencies cannot be satisfied to
IRWIN'S satisfaction IRWIN shall have the right to
withdraw from this Agreement and CITY shall return the
earnest money deposited under 3.A.
5. CLOSING DATE. IRWIN and CITY mutually agree to close said
sale within 30 days of the -end of _the Contingency Period,
but not later than 5:00 P.M. Mountain Standard Time,
April 15, 1998, unless extended a provided under
paragraph 4 in which case the closing shall be not later
5:00 P.M. Mountain Daylight Time on June 15, 1998.
6. POSSESSION. Possession of the said property shall be
given to IRWIN by CITY at closing.
7. TITLE INSURANCE. CITY agrees to provide to IRWIN, at
CITY'S expense, an owner's commitment for title insurance
(on ALTA Form 1990-B) insuring said property purchased
hereunder for the sum of Four Hundred and Nineteen
Thousand, Four Hundred and Ninety Three Dollars
($419,493.00), insuring good and marketable title to be
in the CITY'S name; subject, however, to easements and
right-of-way for utilities, highways and storm sewers of
record.
8. CITY'S REPRESENTATIONS AND WARRANTIES. As a further
inducement to IRWIN to enter into this Purchase Agreement
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October 3, 1997 2
and to consummate the transaction contemplated by this
Purchase Agreement, CITY warrants to IRWIN as agree as
follows:
A. CITY has good and insurable title to the premises
and the personal property and all other property to
be transferred hereunder. The title to be granted
and conveyed shall be merchantable, fee simple
title free and clear of all matters except those
exceptions described in the Title commitment, if
approved, or otherwise waived by IRWIN or provided
for herein;
B. City has full right, power and authority and have
take all requisite actions to enter into this
Purchase Agreement and to grant, sell, and convey
said property to IRWIN as provided in this Purchase
Agreement and to carry out its obligation as set
forth in this Purchase Agreement.
C. CITY has not received notice from any governmental
authority of any violation affecting the premises
and the personal property and all other property to
be transferred hereunder except as disclosed in
writing to IRWIN prior to the execution of this
Purchase Agreement, if any;
D. There are not pending improvement liens or special
assessments to be against the premises by any
governmental authority or third party, except as
otherwise disclosed in writing to IRWIN prior to
the execution of this Purchase Agreement.
E. No work has been performed or is in progress by
CITY or at the direction of CITY, and no materials
have been furnished to the premises or any portion
thereof, which might give rise to a mechanic's,
materialman's construction or other liens against
said property.
F. No consent or approval of any person, entity or
governmental agency or authority is required with
respect to the execution and delivery of this
Purchase Agreement by CITY and, as of the closing
date no unobtained consent or approval will be
required with respect to the consummation by CITY
of the transactions contemplated hereby or the
performance by CITY of its obligations hereunder.
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October 3, 1997 3
G. CITY shall not grant, sell, convey, or encumber
said property prior to closing date.
H. Said property is not subject to any leasehold
interest and CITY further agrees that CITY will not
enter into any lease of said property.
I. There are not disputes concerning the lines and
corners of said property, which lines and corners
are clearly marked and there are no encroachments
upon said property.
J. There is not indebtedness outstanding and no
outstanding or unpaid bills incurred for labor and
material in connection with said property, or for
service of architects, surveyors, or engineers in
connection with said property.
K. Said property is served by dedicated public streets
and any alley and there are no right of way
adjustments pending that will materially affect
said property.
L. There are no, taxes, assessments or liens against
said property for any present or past due taxes or
for paving, sidewalk, curbing, sewer, or other
improvements of any=kind.
M. As of the closing date, there will be no
outstanding, pending, or threatened suits,
judgments, executions, bankruptcies, condemnation
proceedings, zoning changes, or any other
proceedings pending or on record in any court of
any nature or before or by any governmental or
administrative agency which could in any manner now
affect IRWIN'S title to, possession of, or use of
said property, or which could now or hereafter
constitute a lien upon said property or materially
or adversely affect or change said property.
N. CITY is not surety on any bond or indebtedness
wherein through the default thereof, a lien against
said property would be created without further
legal action.
0. As of the closing date, there will be no recorded
or unrecorded liens, security interest, security
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October 3, 1997 4
agreements, or UCC financing statements against
said property.
P. Said property is not subject to any federal, state
or local "Superfund" lien proceedings, claim,
liability or action, or the treat or likelihood
thereof, for the cleanup, removal or re -mediation
of any "hazardous substance" from said property,
and CITY has not cause and will not cause, and to
the best of the CITY'S knowledge there never has
occurred a release, leak, discharge, spill,
disposal, or emission of any "hazardous substance"
as of the date hereof. As used in this Purchase
Agreement, "hazardous substance" means any
substance that is toxic, ignitable, reactive, or
corrosive and that is regulated by any local
government, State of Montana, or the United States.
"Hazardous substance" includes any and all material
or substances that are defined that are defined as
"hazardous wastes", extremely hazardous waste" or
Hazardous Substance" pursuant to state, federal or
local governmental law including without limitation
CERCL, SARA, RCRA, the Clean Water Act, the OSHA
Act, or the Toxic Substance Control Act. "Hazardous
Substance" includes but is not restricted to
asbestos, petroleum products, nuclear fuel or
materials, known carcinogens, urea formaldehyde,
foamed -in -place insulation, and polychlorinated -
biphenyl (PCB' s) .
In the event that any of the representations and
warranties set forth in this Paragraph are not true
in any material respect as of the closing date or
if CITY otherwise defaults hereunder, IRWIN may
terminate this Purchase Agreement on or at any time
prior to the closing date and the Earnest Money
shall be immediately returned to IRWIN.
9. IRWIN'S REPRESENTATIONS AND WARRANTIES. IRWIN represents
and warrants as follows:
A. That IRWIN has the right, power and authority to
purchase said property subject to the terms and
conditions as provided under this Agreement, and
execute, deliver and perform its obligation under
this Agreement.
B. To IRWIN'S actual knowledge, there exists no
a:\purcagree.wpd.
October 3, 1997 5
action, suit, litigation or proceeding which would
limit IRWIN'S ability to purchase said property and
to perform the terms and conditions of this
Agreement.
10. CLOSING DOCUMENTATION. At the closing, the CITY shall
deliver to IRWIN, a standard form of Montana Grant Deed
conveying title to said property.
11. OPERATING EXPENSES, COST, CHARGES AND PROPERTY TAXES.
CITY shall be responsible and shall pay for all operating
expenses which have accrued or shall become due prior to
the closing date. All operating expenses shall be read
and finalized, if reasonably possible, as of the closing
date.
12. RISK OF LASS. N/A
13. ZONING. The CITY represents that the property is properly
zoned for all uses outlined in the proposal of which the
Purchase Agreement is part for the City of Kalispell,
Montana.
14. CITY OF KALISPELL. Purchase is subject to satisfactory
review by IRWIN of any changes made by review of City of
Kalispell or other governing agency.
15. SOIL TESTS. PURCHASE is subject to satisfactory review
by IRWIN of soil tests.
16. BROKERAGE FEE. Brokerage fees, if any, shall be the
responsibility of IRWIN.
17. SPECIAL PROVISION ON REPURCHASE. Commensurate with the
execution of this Agreement IRWIN and the CITY have
entered into a Development Agreement for the
redevelopment of the said property. With regard to
performance under the Development Agreement the parties
agree that IRWIN has until December 31, 1999 to commence
performance under the Phase II improvements described in
said Development Agreement. If the Developer has not
commenced construction on or before December 31, 1999,
the City may, at City's option, re -purchase the northerly
portion of the Project Property designated for Phase 2
(approximately 140' by 1851) for the price of $6.65 per
square foot. In the event the City does not re -purchase
said property within 60 days, commencing January 1,
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October 3, 1997 6
2000, then the Developer shall have no further
obligations with regard to the Improvements in Phase II,
nor will the Developer have any obligation offer the
property to the City.
18. NOTICES. Notices shall be given under this Agreement
upon delivery to the address set forth below either by
certified mail or by delivery from nationally -recognized,
overnight delivery service. Notices shall be delivered
to the following addresses:
To CITY: City Manager
City of Kalispell
P.O. Box 1997
Kalispell, MT 59901
To IRWIN: Irwin Davis & Company
13522 NE 93rd Street
Redmond, WA 98052
19. BINDING EFFECT: This Agreement shall be binding upon the
parties hereto, their heirs, successors and assigns.
Dated this day of October, 1997.
IRWIN DAVIS & COMPANY CITY OF KALISPELL
BY:
Its:
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October 3, 1997 i
BY:
Its:
DEVELOPMENT AGREEMENT
This Agreement is made as of , 1997, by and
between the City of Kalispell, Montana, a municipal corporation and
political subdivision of the State of Montana, (the City), and
Irwin Davis & Company, a Washington limited liability company
(LLC), with its principal place of business at 13522 NE 93 Street,
Redmond, WA 98052,( the "Developer").
WITNESSETH:
WHEREAS, the City is a general powers city, existing and
organized under the constitution and the laws 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. 933 of the City, adopted by the City Council on
September 10, 1979, and
WHEREAS, Ordinance No. 933 adopted the Kalispell Downtown
Redevelopment Plan as the urban renewal plan (referred to hereafter
as the Redevelopment Plan) for the urban renewal area known as the
Kalispell Downtown Redevelopment Area (referred to hereafter as the
Redevelopment Area); and
WHEREAS, Ordinance No.-933 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
"the upgrading and improvement of public and private utilities
within the project area, provisions for public parking, the
rehabilitation of residential and commercial structures, and
acquisition of real and personal property, the relocation of
person(s) displaced by acquisition of real property, the demolition
and clearance of structures acquired by the City where necessary,
the provision of public improvements, providing building or site
preparation for disposal for private or public redevelopment, the
rehabilitation and moving of structures, the disposition of
acquired property for public and private redevelopment and/or
rehabilitation;" and
WHEREAS, the Redevelopment Plan, as adopted and implemented
contains a tax increment financing provision coextensive with the
Redevelopment Area; and
WHEREAS, the Redevelopment Plan has been amended by Ordinance
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October 3, 1997 -1-
No. 1243, adopted by the City Council on July 15, 1996; and
WHEREAS, Ordinance No. 1243 approved as an urban renewal
project the Kalispell Downtown Center (KDC) Development to be
located within the Redevelopment Area (referred to hereafter as the
Project), authorized the use of tax increment revenues to finance
certain infrastructure improvements necessary to the Project, and
WHEREAS, Irwin Davis & Company, as the Developer, and the City
desire to encourage the highest and best use of the property within
the Redevelopment Area, and
NOW, THEREFORE, in consideration of the foregoing
premises and the mutual obligations set forth in this Agreement,
the parties hereto hereby agree as follows:
ARTICLE I
Definitions
Section 1.1. 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 Development Agreement, - as the same may be
from time to time modified, amended or supplemented.
"Assessed Valuation" means the value of property as determined by
the Department of Revenue in accordance with the Montana Code
Annotated.
"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
City and 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) elevations on all sides; (4)
landscape plan; (5) grading plan; (6) utility plan; and (7)
Infrastructure plan.
"Developer" means Irwin Davis & Company or a new entity to be
called Kalispell Center Partners to be formed for the express
purpose of development under this agreement.
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October 3, 1997 -2-
"Infrastructure Improvements" means the list of improvements and
work requirements to be constructed by the City under 2.2.(h). The
improvements listed in 2.2 (h) include improvements that are
located adjacent to (off -site) the Project Area.
"Project" means the Project described in this Agreement.
"Project Area" means that tract of land comprising Lots 1 through
14, Block 36, and Lots 1 through 4 and the North 7" of Lot 5, Block
45, Kalispell, Flathead County, Montana, together with the alley
adjacent to said property and the right-of-way along Center Street,
1't Avenue East and Vt Street East and Main Street.
"Project Property" means the real property in the Project Area on
which the Project will be constructed.
"Section" means a section of this Agreement, unless used in
reference to Montana Code Annotated.
"State" means the State of Montana.
"Tax Increment" means the collections realized from extending the
tax levies, expressed in mills, of all taxing bodies in which the
urban renewal area is located against the incremental taxable
_ value.
"Tax Increment Financing Plan" means Tax Increment Financing Plan
for Tax Increment Financing adopted by the City Council dated
September 10, 1979 and July 15, 1996.
"Time Table" means the schedule of performance dates for certain
actions by the City and Developer under this Agreement.
"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, or
the other party, strikes, labor disputes, fire or other casualty,
lack of materials, or delay caused by injunction or other court
order, or declaration of invalidity pursuant to Montana law by
initiative or referendum provided that within 10 days after a party
impaired by the delay has knowledge of the delay it shall give the
other party written notice of the delay and the estimated length of
the delay, and shall give the other party written notice of the
actual length of the 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.
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October 3, 1997 -3-
Unavoidable Delay shall not extend performance of any obligation
under this Agreement unless the notices required in this definition
are given as herein required.
ARTICLE II
Representations and Warranties
Section 2.1. By City. City makes the following
representations and warranties to Developer:
(a) City, under the Act, Ordinance No. 933 and Ordinance No.
1243 has the power and authority to enter into this Agreement and
carry out its obligations hereunder.
(b) The Project is an "urban renewal project" within the
meaning of the Act and has been approved by the City Council in
accordance with the terms of the Act, Ordinance No. 933 and
Ordinance No. 1243.
(c) The Urban Renewal Plan, as approved by Ordinance No. 933,
contains a provision for tax increment financing for the
Redevelopment Area and since 1980 tax increments have been
collected, segregated by the County Treasurer and transferred to
the City for the benefit of the Redevelopment Area.
(d) The City has on hand, in its Tax. Increment Fund,.or has
the authority to borrow, at least sufficient funds to -complete its
obligations under this Agreement.
(e) The City has determined that the infrastructure
improvements described in 2.2 (h) hereto (the "Infrastructure
Improvements") are necessary to the development of the Project.
(f) The cost of designing, engineering, acquiring and
constructing the Infrastructure Improvements are costs that can be
financed through tax increments pursuant to Section 7-15-4288 of
the Act, and the City Council has authorized the use of tax
increments to finance those improvements, subject to Article III.
Section 2.2 By Developer. Developer represents and warrants
that:
a Developer ( ) per is a duly organized
under the laws of the State of Washington, is.
to do business in the State of Montana, has power to enter into
this Agreement, and has duly authorized the execution, delivery and
performance of this Agreement.
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October 3, 1997 -4-
(b) Developer will purchase from the City Lots 1 through 14,
Block 36, and Lots 1 through 4 and the North 7", Block 45, for the
sum of Four Hundred and Nineteen Thousand, Four Hundred and Ninety
Three Dollars ($419, 493.00) s
(c) Developer will, subject to the provisions of this
Agreement, construct on the Project Property:
i) In Phase I, a retail/office complex of at least
18,000 square feet on the Southeast corner of Block 36,
together with all related on -site improvements including,
but not limited to, off-street parking, landscaping, and
on site utilities, with construction to commence on or
before August 1, 1998.
ii) In Phase II, a retail/office complex of at least
12,000 square feet on the Northerly portion of the
property fronting on Center Street, together with all
related on -site improvements including, but not limited
to, off-street parking, landscaping, and on site
utilities, with construction to commence on or before
December 31, 1999.
(d) Developer estimates that the costs of acquiring the
Project Property, designing, -and constructing the retail/office-
complexes, as described in subparagraph (c)(i) above will be
approximately $1,300,000.00. The parties understand that the actual
assessed valuation of the Developer's portion of the real property
as determined by the Montana Department of Revenue may be greater
or lesser than the estimates.
(e) Developer has obtained or has available to it sufficient
ig to perform and complete its obligations under-`€+
h t i A r m n
(f) Developer is aware of the Infrastructure Improvements
which are the responsibility of the City described in 2.2 (h) and
the on site improvements associated with this Agreement and
represents and acknowledges that the construction of such
improvements are necessary to the development of the Project.
(g) Developer has requested that the City pay the costs of
designing, acquiring and installing the following infrastructure
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October 3, 1997 -5-
improvements: under -grounding of all above ground utilities
(electrical, telephone and cable TV) in the alley adjacent to
Blocks 36 and 45; curbs, gutters, landscaping and decorative lights
and street improvements, all within city rights -of -way.
ARTICLE III
Infrastructure Improvements
Section 3.1. Sequence
coordinating with the Developer,
specifications to be prepared fc
and will enter into construction
accordance with the competitive
law, and will supervise the con
improvements in the same manner
City. The City may at its opti
construction of the Infrastruc
personnel. The City will comp:
Improvements and commence the con
solicitation of bids, public noti
of the Agreement, provided that
proceeding by court order or c
petition. After construction bic
budget and time table for the Ir.
prepared by the City and then t
approval of the Developer. The
line items for each of -the itemz
based on the actual bids recei.vec
anticipate that the City will ,
commence construction of the Infx
than ,1998. The C
Improvement bid(s) as soon as pi
bidding procedure and require the
construction of the Infrastru(
of Events. The City, after
shall cause construction plans and
r the Infrastructure Improvements
contracts for such improvements in
bidding requirements of Montana
struction and installation of the
s other public improvements of the
)n proceed with the design and/or
.ure Improvements utilizing City
ete design of the Infrastructure
petitive bidding process including
ces and advertising upon execution
the City is not prevented from
.elay occasioned by a referendum
s are opened, a final construction
frastructure Improvements will be
e reviewed by and subject to the
construction budget will include
shown in 2.2. Ah) and shall .be
for each line item. The parties
Lccept bid(s) and be prepared to
astructure Improvements not later
ity shall award the Infrastructure
acticable after completion of the
successful bidder(s) to complete
Lure Improvements on or before
, 1998, when Developer plans on opening its
retail/office complex for business. Developer will commence
construction of its on -site improvements
on or before The City will coordinate the
design and construction of the Infrastructure Improvements with the
Developer and will require its engineers and contractors to
coordinate design and construction with the Developer, the engineer
and contractors to ensure maximum efficiency to the City and
Developer in the construction of the Infrastructure Improvements
and the Project.
Section 3.2. Limitations on City's Commitment. The City
shall use its tax increment revenues to pay for the costs of only
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October 3, 1997 -6-
these infrastructure improvements listed in Section 2.2(h).
Section 3.3. Developer's Commitment. In the event public
infrastructure improvements other than those listed in Section
2.2(h) are required, the Developer and the City shall agree on the
extent of Developer's commitment to be responsible for
Infrastructure Improvements at the time that the construction
budget and time table are received and finalized. The cost of the
additional infrastructure improvements exceeding the City's
financial commitment described in Section 2.2(h) above shall be
satisfied in one or more of the following manners to be agreed upon
by the parties:
(a) Low priority improvements which are not absolutely
essential shall be eliminated as work requirements to reduce
overall costs.
(b) Developer agreeing to complete specific line items at its
own expense with a contractor of its choice.
(c) Developer agreeing to deposit sufficient funds with the
City Finance Director to pay a certain amount of any shortfall to
cover the cost of a specific Infrastructure Improvement.
Section 3.4. Developer's Right to Withdraw from Project.
Both parties understand and agree that the parties, as a condition
precedent to any 'further -obligations of the Developer under this
contract and prior to the City accepting any bids, must agree in -
writing on the following:
(a) Detailed construction plans and specifications describing
the work to be performed.
(b) Construction budget based on actual bids received.
(c) Time Table for construction.
(d) Developer's obligations under Section 3.3 above.
Developer shall have the right to withdraw from this Agreement and
to terminate all obligations hereunder unless written agreement is
reached on each of the above items not later than March 16, 1998.
Delivery of proceeds of sale and transfer of deed to the property
described in Section 2.2(b) shall be no later than 5:00 p.m. MST on
April 15, 1998.
Section 3.5. Developer shall also have the right to withdraw
from this Agreement and to terminate all obligations hereunder if
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October 3, 1997 -7-
the City is prohibited from either contributing its share of
project costs pursuant to Section 3.2 above or proceeding further
with the project because of court order, injunction or by
declaration of invalidity or by referendum or initiative, or other
lawful excuse.
ARTICLE IV
Construction of the Project
Section 4.1. Site Plans and Construction Plans. Developer
shall submit Site Plans to the City prior to obtaining any building
Permits. The Site Plans:;:;<r=» shall depict
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 Developer shall also prepare
detailed Construction Plans and specifications which shall provide
for construction of the on site improvements and for construction
of its re:stait/offi
ce complex,
$
in conformity with the Redevelopment Plan,
the Site Plan, this Agreement, and all applicable 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 previous
plans and subsequent amendments approved by the City and conformed
to, the terms and condition of this Agreements (b) conforL to the
terms and conditions of the Redevelopment Plan; (c) conform to all -
applicable federal, state and local laws, ordinances, rules and
regulations; (d) are adequate to provide for construction of the
Project; and (e) no Event of Default has occurred.
No approval by the City of the Construction Plans shall
relieve 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 construct the Project as provided in this Agreement subject
to the Developer's right to withdraw. 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 10 days after the date
of their receipt by the City. if the eity rejects the Site P±a
new or revised S±te Plans or eonstruction Plans not ±ater than. 3&
days 6fter wr±tten not±ficativn to Developer of the rejection. Th
k'- sions of this Section relating to approval, rejection and
cont±nte to apply unti± the Site Pians and eonstruction Plana ha
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October 3, 1997 -8-
Section 4.2. Construction of the Project.
(a) Subject to Unavoidable Delays, Developer and the City
will construct the Project without encroachment onto any other
property all in accordance with the Site Plan, the Construction
Plans and the Time Table. The City will be responsible for the
proper supervision of and completion of construction of the
Infrastructure Improvements in 2.2.(h) and the Developer will be
responsible for the supervision of and completion of the on -site
improvements listed on Schedule 2. Neither party shall exercise
any control over the other regarding their respective areas of work
and division of responsibilities although the parties agree to
coordinate their activities to assure maximum efficiency of the
construction process.
(b) All work with respect to the Project shall be in
substantial conformity with the Construction Plans approved by the
City. Developer shall promptly begin and diligently complete all
on -site improvements. Developer shail make reports, in such det
and at such times as may reasonably be requestA eity, as to
the actuai progress of Developer with respect to construction o-f,
the on site listed on Schedule 4'.
(c) Neither the City's contractors nor the Developer will
interfere with, or construct any improvements over, any public
street or utility easement without the prior written approval 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. Developer at its own expense shall replace any
public facilities or utilities damaged during the construction of
the Project within the scope of the Developer's work. Any work by
the City or its contractors that causes damage to public facilities
or utilities .._:.�r::::.t€�:::::Iv�l:� �r>:<:>�ta:�::le:->:=:-a�:�:�:t<�:�»:::��°>:::-. .'>��> =�'�: -�<•.::
will be repaired by the City at its own expense.
Section 4.3. Certificate of Completion.
(a) Promptly after completion of the on site improvements
� }� in accordance with this
3't::::��::.:'?*.:. :•.r:'�Pyasp::%`:�!�...:....:....,.:............`.!:t.,..:.::.:. ..::...:...:::. _,.f �'3±;i�:�
Agreement, Developer will provide the City with a certificate of
substantial completion from Developer's architect, and the City
will then furnish Developer with an appropriate Certificate of
Completion as conclusive evidence of completion of the Developer's
obligations under this Agreement.
(b) If the City shall refuse or fail to provide a Certificate
of Completion, the City shall, within 10 days after the Developer
provides the architect's certificate referenced in Section 4.3(a),
provide Developer with a written statement specifying in what
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October 3, 1997 -9-
respects Developer has failed to complete the on -site improvements
in accordance with this Agreement, or is otherwise in default, and
what measures or acts will be necessary, in the opinion of the
City, for Developer to obtain the Certificate of completion.
Defense of Claims: Insurance: Developer's Risk
Section 5.1. Defense of Claims. Developer shall indemnify
and hold harmless the City and its respective officers, employees
and agents for any loss, damages and expenses (including attorneys'
fees) in connection with any claims or proceedings arising from
damages or injuries received or sustained by any person or property
by reasons of any actions or omissions of Developer or its
contractors, agents, officers of employees under this Agreement,
other than claims or proceedings arising from any negligent or
unlawful acts or omissions of the City or its 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
5.1., the City will notify the Developer in writing within 10 days
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 in writing by the Developer.
City shall indemnify and hold harmless the Developer and its
respective officers, employees and agents for any loss, damages and
expenses (including attorneys' fees) in connection with any claims
or proceedings arising from damages or injuries received or
sustained by any person or property by reasons of any actions or
omissions of City or its contractors, agents, officers of employees
under this Agreement, other than claims or proceedings arising from
any negligent or unlawful acts or omissions of the Developer or its
contractors, agents, officers or employees. Promptly after receipt
by the Developer of notice of the commencement of any action in
respect of which indemnity may be sought against the City under
this Section 5.1., the Developer will notify the City in writing
within 10 days 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
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October 3, 1997 -10-
counsel satisfactory to the Developer 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. The
Developer 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 in writing by the City.
Section 5.2. Insurance.
(a) Developer will provide the following insurance 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 policies 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 costs of the Project at the date of completion,
with coverage on the so-called "all-risk," nonreporting 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 caused by the Developer or the Developer's agents or
contractors in the minimum amount for each occurrence in the amount
of $1, 500, 000; 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 a form and a 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' advance written notice to the City in the event of
cancellation of such policy or change affecting the coverage.
(b) The provisions herein with respect to Developer's
maintaining insurance of the Project shall terminate at such time
as the Developer has received a Certificate of Completion under
Section 4.3.
(c) The City shall maintain corresponding insurance coverage
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October 3,1997 -11-
for its portion of the project and will provide written proof of
such insurance to the Developer.
Section 5.3. Developer understands and accepts certain risks
associated with proceeding with the Project. The City shall act in
good faith and shall use its best efforts to assure completion of
the Infrastructure Improvements in accordance with this Agreement
and Ordinance No. 1243. In the event the City is unable to
complete the Infrastructure Improvements in a timely manner as a
result of legal challenge resulting in a court order preventing
City participation in the Project or declaration of invalidity
pursuant to Montana law by initiative or referendum, Developer
shall have the right to withdraw from this Agreement pursuant to
Section 3.5.
ARTICLE VI
Payment of Taxes
Developer shall pay when due all real estate taxes and
ti installments of special assessments payable on the Project
Property. Developer and the City recognize that the State of
Montana, Department of Revenue shall utilize calculator or
segregated cost methods to determine the Assessed valuation of the
improved real property and the Developer shall not utilize an
income approach to value to protest the Assessed Valuation of said
property for a period of five (5) years from the date of this
agreement.
ARTICLE VII
Prohibitions Against Assignment and Transfer
Section 7.1. Transfer of Propertv and Assignment. Developer
has not made and will not make, or suffer to be made, any total or
partial sale, assignment, conveyance, or other transfer of any
interest in the Project or. Project Property or any part thereof or
any contract or agreement to accomplish any transfer, prior to the
completion of the Improvements contemplated in Section 2.2. (c)
(i), (except any transfer or assignment to any related entity in
which the Developer is a part) without the prior written approval
of the Citv, which approval shall not be unreasonablv withheld.
The City shall be
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October 3, 1997 -12-
entitled to require as conditions to any such approval of a
transfer of a substantial portion of the property occurring before
completion of the Project as follows: (a) 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, (b) 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
conveyance or change of ownership of the Project Property or any
part thereof, or any interest therein, however consummated or
occurring and whether voluntary or involuntary, shall operate
legally or practically, to deprive or limit the City's rights or
remedies or controls provided in or resulting from this Agreement
that the City would have had, had there been no such transfer or
change. There shall be submitted to the City for review all legal
documents relating to any transfer. The obligations imposed by this
Agreement are covenants which run with the land so long a
performance remains executory.
In the absence of specific written agreement by the City to
the contrary, no conveyance 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 7.2. Termination of Limitations on Transfer. All
provisions contained in this Article:7 with respect to limitations
on the ability of the Developer to transfer the Project Property or
the Project, or any portion thereof, shall terminate at such time
as a Certificate of Completion has been issued by the City under
Section 4.3 of this Agreement with respect to the Project.
ARTICLE VIII
Events of Default
Section 8.1. 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 occur prior to the issuance of the Certificate of
Completion by the City under Section 4.3 of this Agreement with
respect to the Project and continues for more than 30 days after
notice by the City to Developer or from Developer to the City, as
the case may be, 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):
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October 3, 1997 -13-
(a) Failure by the Developer or the City to properly and
timely construct or reconstruct the Improvements as required under
this Agreement.
(b) Failure of Developer to furnish the Site Plans or
Construction Plans as required hereunder.
(c) Failure by either party to comply with Section 3.1.
(d) Failure by Developer to pay real estate taxes as required
hereunder.
(e) Failure by Developer or the City to observe or perform
any other duty, covenant, condition, or obligation required by this
Agreement.
(f) If Developer or the City 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 creditors, or shall consent to the appointment of a
receiver of itself or of the whole or any substantial part of the
Redevelopment party.
(g) If Developer or the City shall file a petition or answer
seeking reorganization or arrangement under the federal bankruptcy
laws.
(h) 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.
(i) If Developer is in default under any Mortgage recorded
against the Project Property and fails to cure any such default
within the time period provided for in the Mortgage.
Section 8.2. Remedies on Default. Whenever any Event of
Default referred to in Section 8.1 occurs the party not in default
may take one or more of the following actions:
(a) Suspend its performance under this Agreement until it
receives satisfactory assurance from the other party that the
defaulting party will cure its default and continue its performance
under this Agreement.
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October 3, 1997 -14-
(b) Rescind this Agreement, refund moneys paid less deposit
and return property to City.
(c) Withhold the Certificate of Completion.
(d) Take whatever action at law or in equity which may appear
necessary or desirable to the non -breaching party to enforce
performance and observance of any obligation, agreement, or
covenant of the party in default under this Agreement.
Section 8.3. No Remedy Exclusive. No remedy herein conferred
upon or reserved to either party is intended to be exclusive of any
other available remedy or remedies, but each and every such remedy
shall be cumulative and shall be in addition to every other remedy
given under this 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 thereof, 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 8.4. Waivers. All waivers by either party must be in
writing to be enforceable. If any provision of this Agreement is
breached by either party and thereafter waived by the -other party,
such waiver shall be limited to the particular breach so waived and
shall not be deemed to waive any other concurrent, previous or
subsequent breach hereunder.
Section 8.5. Attorney Fees. If by reason of any default on
the part of either party it becomes necessary for the other party
to employ an attorney to pursue or enforce its rights under this
Agreement, the non prevailing party shall pay to the prevailing
party reasonable attorneys fees and all costs and expenses incurred
in enforcing its rights under this Agreement.
ARTICLE IX
Additional Provisions
Section 9.1. Conflict of Interests: the City Representatives
Not Individually Liable. No member, official, employee, or
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October 3, 1997 -25-
consultant or employees or 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 9.2. Restrictions on Use. Developer agrees that it
shall not discriminate upon the basis of race, color, creed, sex or
national origin in the sale, lease or rental or in the use or
occupancy of the Project Property or any improvements erected or to
be erected thereon, or any party thereof.
Section 9.3. 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 9.4. 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 at 13522 NE 93 Street, Redmond, Washington,
98052, Attention: David Irwin.
(b) In the case of the City, addressed or delivered
personally to the City Manger, City of Kalispell, P.O. Box 1997,
Kalispell, Montana 59903-1997, or at such other 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 9.5. Counterparts. This Agreement is executed in any
number of counterparts, each of which shall constitute one and the
same instrument.
Section 9.7. Entire Agreement. All understandings and
agreements previously existing between the parties, if any, are
a:ldevagr1.wpd
October 3, 1997 -16-
merged into this Agreement including all schedules and exhibits,
which alone fully and completely expresses their agreement, and the
same is entered into after full investigations, neither party
relying upon any statement or representations made by the other not
embodied herein. This Agreement may not be changed or terminated
orally.
This Agreement shall inure to the benefit of and be binding
upon all successors, heirs or assigns.
The executory terms of this Agreement shall not be
extinguished by or merged upon sale of the property described
h e r e in
Section 9.8. Governing Law. This Agreement shall be deemed
to have been made in, and construed in accordance with, the laws of
the State of Montana.
Section 9.9. TIME IS OF THE ESSENCE of this Acreement.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed as the date first above written.
"DEVELOPER" "CITY"
IRWIN-DAVIS & COMPANY CITY OF KALISPELL
By: By:
City Manager
By:
Finance Director
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October 3, 1997 -17-
S`,D
eS12ecta&ts_qn <-REciza&onaf & _Pjej" E)- w/V%&z!j •
PROFESSIONAL HOMES
HANDLINGWoo& (24id 'Wateto
ACREAGE
OF YOUR v� LOTS
RANCHES
REAL ESTATE
NEEDS REALTY BUSINESS
BOX 460 - LAKESIDE, MT 59922 PROPERTIES
(406) 844-3395 FAX (406) 844-2031
September 11, 1997
Mr. Lawrence Gallagher
Director
Planning, Economic & Community Deve►opment Dept.
City of Kalispell
248 3rd Avenue East
Kalispell, MT 59903-1997
Re: Kalispell Downtown Center
Kalispell, Montana
Dear Mr. Gallagher:
The following letter will serve to outline the terms and conditions under which Kalispell Center
Partners would purchase the above -referenced property:
Buyer: Kalispell Center Partners
Seller: The City of Kalispell
Property: Parcel 1 consisting of 7000 s.f., all of lots 13 & 14 of Block 36
Parcel 2 consisting of 42,000 s.£, all of lots 1 thru 12 of Block 36
Parcel 3 consisting of 14,081.66 s.£, described as 140' x 100.5833',
consisting of lots 1,2,3, -4 and the northerly 7" of lot 5.
Purchase Price: $419,493.04 cash payable at closing (less earnest money deposit).
Earnest Money: $21,000.00 refundable up until Bayer's removal of all contingencies.
Contingency Period: Buyer will have until March 1,1998 to satisfy itself of certain conditions of its
purchase, including, but not limited to the following:
1. Review and approval of all environmental, soils, and engineering reports
associated with the property;
2. Completion of Buyer's feasibility analysis in a form acceptable to Buyer;
3. Receipt of all necessary zoning and planting approvals, building permits,
and any other municipal approvals necessary to commence construction of
improvements;
4. Receipt of any financing commitments, if necessary;
5. Completion, or in lieu of completion, an agroement setting forth an
acceptable completion schedule, for the Project Requirements outlined
below as numbers 1 through 4.
Buyer shall have the right to extend the Contingency Period for an
additional sixty (60) days by forwarding a $ 10,000.00 non-refimdable
deposit to the Seller.
Project Requirements: The following Project Requirements will be provided by the Seller:
1. Delivery of all environmental assessments for the subject property;
2. Relocation of all existing above -gm and utilities (electrical and phone);
3. Completion of necessary curb, gutter, sidewalk, landscape, and street
improvements` within City right-of-ways.
Closing: Closing shall occur within 30 days of end of Contingency Period.
Documentation: Seller shall prepare a Purchase and Sale Agreement within 15 days of
acceptance of this Letter of Intent. Buyer and Seller shall negotiate in good
faith towards a mutually acceptable agreement.
Brokerage Fees: Buyer and Seller acknowledge that Woods and Water Realty (Broker) has
been the only agent/broker involved in this transaction and as such, the
Broker shall be paid a fee of six percent (61/6) of the Purchase Price at time
of closing from proceeds placed in escrow by the Buyer for the proposed
purchase of the property. The Broker's fees will be subtracted from the
total Purchase Price.
Acceptance: The acceptance of the above term and conditions is not intended to bind
either the Seller or Buyer. Only a fiilly-exocuted Purchase and Sale
Agreement will bind the parties.
If the Seller is in agreement with the above business terms, please acknowledge below and return one
copy of this letter to Buyer by September 30, 1997. We look forward to working with the City of Kalispell
toward a successful completion to this project.
Z
y yours,
David C. Thomquist
Broker Associate
AGREED TO AND ACCEPTED:
M
Its:
Date:
AGREED TO AND ACCEPTED:
By: David B. Irwin
Its: Principal
Date: September 11, 1997