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11. Kidsports AgreementAgenda -December 1, 1997 AGENDA ITEM 11 - KIDSPORTS AGREEMENT PROPOSAL BACKGROUND/CONSIDERATION: I have enclosed a proposed contract from Kidsports for consideration. This was compiled by Dan Johns after discussions with Mike Baker and myself. This has had no review or input by the City Attorney (this was his choice). I have also enclosed the cover letter from Mr. Johns relating the reasons that the agreement does not meet two of the major concerns that Mike Baker and I have discussed for this agreement. I have two concerns with this agreement. (A.) As proposed at this time, the City would not be permitted to assess a surcharge/fee separate from the fees charged by Kidsports. This is unacceptable to the City Staff. It is not our intent to add fees or surcharges that make the cost oppressive for the users. However, I strongly believe that it would be prudent to protect our ability to generate revenue to maintain our assets. Although we currently will have a small cost for maintenance costs, as the use and costs increase a maintenance surcharge may be a necessity. We should not lock ourselves out of this potential. I do not recommend approval of a contract that will eliminate that option. The second problem with this proposal is that it requires replacement fields to be in place prior to the discontinuance of Daley Fields. This has been the intent and the Council has continued to state this. However, I believe we have a potential problem that needs discussion. As you know, you have instructed/authorized me to close the deal with Rosauer's as soon as possible. That will be complete by mid December. This will eliminate the field in the 1999 season. The Rosauer's improvements will not start until after the ball season in 1998. It is anticipated that the ballfield complex contract will Agenda -December 1, 1997 be authorized in late winter or spring of 1998 with construction through the summer and fall of 1998. However, again to err on the cautious side since we cannot control the weather, I find it extremely difficult to promise that the Daley Field will not be discontinued when in fact 5 1/4 acres of the fields will not be our property to control at that time. A commitment/restatement from the Council that the ballfield complex will be built as anticipated may relieve some of this problem. This contract is for your review and input at this meeting. I would hope with your input on December 15, we could present you with an agreement for your approval. RECOMMENDATION: I cannot offer a recommendation to approve this agreement as presented. ACTION REQUIRED: Please review and give staff direction for this item. CROWLEY, HAUGHEY, HANSON, TOOLE &. DIETRICH, P.L.L.P. Attomeys at Law DATE: November 25, 1997 TO: Clarence Krepps and Mike Baker FROM: Dan Johns RE: Kidsports / Kalispell Enclosed is a revised agreement proposal. It incorporates changes we discussed, but does not permit the City to assess user or their participants fees separate from Kidsports and still requires replacement fields before the Daley fields can be discontinued. I have met with representatives of the groups and the maintenance fee option was not acceptable. The groups were quite firm on knowing costs in advance in order to communicate them to their parents, and not wanting a third party (City) able to also assess for use of the complex. We are already surcharging our families for the lease payment, and we concerned about their continued ability to pay increased fees. All groups are presently receiving more requests for "scholarships" for fund low income participants than ever before. On replacing -the Daley fields,, the Council has consistently stated that field use will -not be_, discontinued until replacement fields are available. Pee Wee and Babe Ruth consented to 'abandoningµ the Haven fields for one season in order to generate seed money for the complex. I assume, a portion of that money is being used to pay for the 'construction documents, but another portion was spent to purchase real property (Timmlick) unrelated to the youth complex. We requested that the City authorize construction documents last February, and it declined. Consequently, an entire construction season was lost through no fault of the youth organizations. The fact there may be a pending sale on a portion of the Daley fields should not jeopardize the youth activities. The best solution is to get after it, and right now in order that softball fields will be available for the 1999 season. Please call if you have questions or wish further discussion. I'll plan on seeing you next Monday. AGREEMENT AGREEMENT entered into this day of , 1997, between the City of Kalispell, Montana, and Kidsports, a Montana not -for -profit corporation. Recitals 1. Kalispell is party to a lease agreement with the Montana Department of State Lands, Lease No. 3053189, dated July 17, 1997 (hereafter "Lease"). A copy of said lease is attached to this Agreement as Exhibit A. 2. Pursuant to said lease, Kalispell has leased approximately 138 acres located immediately north of its city limits for a period of 40 years. The property will be developed as a youth athletic complex, and may include additional recreational improvements. 3. Kidsports was formed to represent the combined interests of user groups of the athletic field complex in the planning, development, financing, operation and maintenance of the improvements. NOW THEREFORE, the parties agree as follows: 1. Purpose. The purpose of this Agreement is to define the public -private partnership between Kalispell and Kidsports regarding the planning, development, financing, operation and maintenance of the real property described in Exhibit A as a youth athletic complex. Both parties are committed to the development.of youth athletic facilities that _will -provide: opportunities. for youth to develop through wholesome, physical activity. In an,effort .to accomplish these objectives, the parties agree to work toward this common goal in a manner that permits quality development while recognizing the financial responsibilities of each. 2. Term. This Agreement shall be effective the day and year first above written, and shall continue through the duration of the Lease attached as Exhibit A, unless sooner terminated. 3. Initial Funding. Kalispell will provide at least One Million Dollars ($1,000,000.00) toward the planning and development of the athletic complex. These funds will come from the sale proceeds of property commonly known as the Haven baseball fields and Daley softball and baseball fields. The Haven fields are sold and the transaction closed on July 15, 1997, and a portion of the Daley fields are proposed to be sold for a Rosauers grocery. The parties agree it is their intention that proceeds from sale of the Haven and Daley fields will fast be committed toward the complex, rather than an alternative use(s), until the City's total commitment has been acquired, and that funds will first be spent on the development described in the Summary Design Review, dated January, 1997. Kalispell and Kidsports may agree in writing to alter this planning and development requirement. Funds spent by Kalispell on Four Mile Drive or its intersection with U. S. Highway 93 North will not come from the funds dedicated by it towards the complex, but shall be in addition to the $1 million commitment (the Summary Design Review states that upon annexation of the leased property use of gas tax revenues are intended to finance these road improvements). 4. Lease Payments. While the Lease pertains to a total of 138 acres, annual lease payments are based upon the actual number of acres dedicated for complex use. Presently, approximately 80 acres are committed to development and the lease payment is calculated based on those acres. Through February 28, 2017, Kidsports will pay to Kalispell the annual lease payment for the acreage presently set aside for complex development, and Kidsports will also pay lease payments during said term for additional property that is developed for use by a group(s) under contract with it for user fees, etc. Each annual lease payment shall be paid by Kidsports to Kalispell on or before the first day of March, with the first payment due by 199. Kidsports' obligation to make lease payments is contingent on Kalispell (1) using its best efforts to accomplish sale of the fields as described in paragraph 3, (2) completing construction and other documents related to development of the athletic field complex pursuant to the agreement entered into between Kalispell and the design/engineering team headed by Carver Engineering, (3) not discontinuing availability of any Daley softball, baseball, and/or soccer fields for youth athletic activities prior to completing replacement fields at the complex, (4) not delaying development of any portion of the youth athletic field complex, either through action or inaction, and (5) not breaching this Agreement. Notwithstanding the foregoing, in the event the entire $1 million is not available for development of the complex or, if available, has not been spent or contracted to be spent, by December 31, 1998, Kidsports annual lease payment obligation shall be reduced to the same percentage of the total annual lease payment as spent and contracted funds are to the $1 million. Beginning with the annual payment due on March 1, 2017, Kidsports' contribution toward the annual lease payment shall be adjusted. -as follows: Kidsports will pay that percentage -of Kalispell's annual lease payment that is the same as the:percentage.of real property dedicated to the user groups under agreement with Kidsports is to the total acreage under lease. For example, if the Kidsports' groups use 70 acres, Kidsports annual payment will be 70/138 of the total annual obligation. The area considered dedicated to the user groups will include those areas developed for their exclusive use (e.g. playing fields, concession, parking areas, etc.). Initially, those users under agreement with Kidsports include the Greater Kalispell Youth Soccer Association, Kalispell Babe Ruth League, Kalispell Pee Wee Baseball League, and Kalispell Youth Softball Association. 5. User fees. Kidsports may establish fees to be paid to it by users (e.g. associations, tournament participants, individuals, etc.), visitors (e.g. admission fees to events, etc.), advertisers (sponsors, fence ads, etc.), or others using or frequenting the complex. Funds raised by Kidsports pursuant to this paragraph may be used toward lease payments and other purposes as Kidsports. may determine. The parties recognize that Kidsports and the user groups may engage in fund raising activities (e.g. those just mentioned, plus concession stand sales, etc.), and neither the fund raising activities and the subsequent use of those funds are subject to this Agreement. Kalispell may charge fees to persons or groups not charged fees by Kidsports, but it will not charge or assess persons or groups who are charged fees related to the complex by Kidsports. If a user, or prospective user disagrees with fees established by Kidsports, representatives of Kalispell and Kidsports will confer and agree upon an appropriate fee. Refusal or nonpayment of a user fee by a group under Agreement with Kidsports may be grounds for denial of use of the complex. 6. Development Responsibilities The parties recognize that the initial funding furnished by Kalispell will not be sufficient to complete development of the youth athletic complex, and that Kidsports will be responsible for portions of the development. Throughout the term of this Agreement, Kalispell and Kidsports will meet for the purpose of deciding each party's development responsibilities. Kidsports agrees that its development activities will be consistent with the construction documents and it, or the user groups under agreement with Kidsports, will maintain liability insurance (naming Kalispell as a covered party) covering construction and athletic activities. Businesses performing development activities at the complex at the request of Kidsports must also maintain general liability insurance coverage consistent with Kalispell's normal requirements, as well as workers compensation coverage on its employees consistent with State law. At a minimum, representatives of Kalispell and Kidsports will meet at least once annually for the purpose of conferring about the complex and this Agreement. 7. Maintenance and Repair Responsibilities. Improvements at the complex are to be maintained in new condition, less reasonable wear and tear. It is the intent of the parties that the improvements not deteriorate through misuse or lack of attention, maintenance, or repair. The following maintenance and repair activities are the responsibility of Kidsports, or third parties to whom they may be assigned: a. electric and telephone utilities (including usage charges) b. concessions stands andrestrooms (including nieteredwater fees_ irrigation water will not be metered) c. game preparation of playing fields d. fan seating e. temporary fencing f. maintaining clean grounds Other responsibilities may be undertaken by Kidsports as it and Kalispell may agree. Kalispell is responsible for the following maintenance and repair activities: a. athletic fields, including turf b. roads and parking areas c. sewer, potable and irrigation water distribution systems, well (including casing, pump and panel) d. ground cover (non -turf) e. permanent fencing f. trash collection g. winterizing water systems Other responsibilities may be undertaken by Kalispell as it and Kidsports may agree. 8. Modification. This Agreement may be modified by the parties by a written document signed by authorized representatives of both Kalispell and Kidsports. 9. Mediation; Termination. In the event either party fails to perform its obligations under this Agreement, the other party may give written notification of the default in writing. The parties shall meet and confer with the intent of resolving the default, but in the event the default is not cured, or reasonable efforts are not underway to correct the default (in the opinion of either party), the dispute shall be submitted to mediation. In the event the parties are not able to agree upon a mediator, a mediator shall be appointed pursuant to the rules and regulations of the American Arbitration Association. The expenses of the mediator shall be shared equally by the parties. The parties may mutually agree to terminate this Agreement in writing at any time. 10. Lease Termination. Upon termination of the Lease (Exhibit A or its successor), any compensation paid by the Lessor will be pro rated between Kalispell and Kidsports based on the value of each party's construction improvements at the complex. During the term of this Agreement, Kalispell and Kidsports will maintain, and provide a copy to the other party, its list of construction improvements which includes the actual cost or fair market value thereof at time of construction. The Lessor's payment will be prorated based on the aforementioned lists. 11. Miscellaneous. a. The policies and activities of users under Agreement with Kidsports are the responsibility of the various individual user groups, and not Kalispell or Kidsports. b. The scheduling of activities at the complex will be the responsibility of the individual user groups. Kalispell may schedule activities at the complex which do not conflict with the affected user group's scheduled activity, provided that Kalispell will first check with the user group before scheduling its activity. Kalispell will not schedule any activity which is not compatible with the improvements or which may damage or degrade the the complex. c. Kidsports, and the user groups, may place informational and advertising signs at the complex, provided that all signs must be maintained in good physical condition and approved by the Kalispell's Parks Director as to appearance and location prior to installation. The parties recognize that advertising signs at athletic facilities are sources of revenue for the user groups, and that it is their intent to permit tasteful advertising signs throughout the term of this agreement. d. Improvements affixed to the real property may not be removed without Kalispell's approval. e. Greater Kalispell Youth Soccer Association, Kalispell Babe Ruth League, Kalispell Pee Wee Baseball and Kalispell Youth Softball Association, including their successors and assigns, are recognized by the parties as third party beneficiaries to the terms and provisions of this Agreement, including any amendments thereto. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written. City of Kalispell, Montana Clarence Krepps, City Manager Attest: City Clerk Kidsports, Inc. Daniel D. Johns, President Attest: Secretary to 4 . MM11 Incorporated 1892 Office of the City Attorney Glen Neier, City Attorney Richard Hickel, Asst. City Attorney Theresa White, Legal Secretary November 26, 1997 Honorable Mayor and City Council City ofKalispell P.O Box 1997 Re: Repair of Flood Damage at Golf Course Dear Mayor and City Council: Telephone (406)758-7708 P.O. Box 1997 Kalispell MT 59903-1997 Fax (406)758-7758 I have been asked to issue an opinion as to title regarding the above proposed project. The Natural Resources Conservation Service, (hereinafter NRCS) needs a completed real property acquisition form from the City. fTo be included with the form is an attorney opinion letter verifying that the City has acquired the jiecesslary-re# groperty interests to Rrq eed with t efp oJect y, _ r 3 - r The City of Kalispell acquired title to the property, upon which work will be conducted, by Grant Deed, dated July 31, 1974, from the Conrad National Bank. Said Grant Deed is recorded at Book 574, Page 250, records of the Flathead County, Cleric and Recorder. I have attached a machine copy of said Grant Deed evidencing City ownership. Based upon the forgoing it is my opinion that the City of Kalispell has the requisite legal title to the real property enabling the project to proceed. Sincere , Glen Nei er City Attorney PC City Manager 1Awp\grantwpd 4 TMT em" 01 tr I ?w 574 PaSe AMC DATE GRANT DEED #42 MR A VALUABLE CONSMMTION, jeecipt of wbith is hereby aelmawkfted. TIM COMM NATIONAL BANX OF XALISPELL: as Trustee under that trust agreement dated December 31, 1973, bw*by_GkANT.(3) to the CITY OF KAL : ISpzLL, HOW'TAKA, a municipal corporation, 'rV.w Mowing deseribed nd property gw ec"ty 1� of Flathead state of Monumac PARTICULARLY DESCRIBED ON THE EXHIBIT A ATTACIM HERETO AND INCORPORATED IMREIN BY TNIS,jWE!M0CZ. This conveyance is sub to the emat that the XW go.-M—A ject -IMMM hereby shall be used by -Grantee for puro6se's'' oftly_�' 'if a golf.course d land is used.for other than golf cour purposes or construction of a golf course is not begun on said, mare-4-T-M -hereof-, said -pre sea shall revert to the Grantor, and Grantor shall accept them pursuant to the terms of that certain trust agreement executed between the Grantor and ' Duane A. Bitnoy and Betty A. Bitney, husband and wife, an December 31, 1973. • TO HAVEODT011OLD the said prinvises. with their appurtihhanm unto the said U*m • Grantee, and to its successors and assigns -forever, except As prov 0. Dated: T11E I N BW 97 XALISP=0 Trust ozzlcrw-'� tP '77 Ka" dw Tine in=" By tw FIRer Two cmmpmy of SaNiapsNt MONTANA XTATE Or MUNTA&A. couirry or flathaa& on Ibb 6-Y lfW a 74 sTATi or uommk counn or I 1...W towy a& boiu� Im Not :sr-em at ir In and for suft.-P"Jeft"y the Of W known to as to be the Trust Officer of Tm4mm" UhTZONAL BANK Or xWona, the that the.der at corpozation 0 Is MYSAM S" k 11144k tp;*W the. within Instratsent-, and a Deeds se vale 4A" Jr % Xalispen wk"Wwr" to SoAd an "On. I - *=W7,; AttannY StAAW 240 1st Aw vent, KAUSM111 Xt. P 9 M *11 ILI Z_-ti V3.1 A parcelof land in the Boat one Balf of Ssation $, p 28 North, Range 21 Meat, Principal Meridian, Mointans, deacrLbad as foLlova: IN North 38. 59''2T" Vast 287.65 test to a 3A,, I.D. x 21" Qaly. Ilan pipe with Pap; Manes North rr 05' 30' -least 2M 78 Peet to a 3AW S.D. z all 041'. Iraa vith_ 283.92 feet to a.3f" LD. x 2Z' GaIY x t5.68 'r"t '' s North2W 33' West 129.27 feet; North 310 o6t West 192.42 feet; tbance Worth 13 38f 14West. 128.54 feet; tbanog - North 00' 20' 02" West 297.99 feet; thence South W 55' 280 zest 279.86 feet;. South 770 18' 22" East 81.02 feet; themm South 4r 57' 40' Eaat 557.58 feet; thmm South 72" 55' 20" Best 253. feet; North.W 50' 15" � a53b. . to Wbnt be►tiiuis17 ad' aL 603 oot declared Oouaty Roe$ of FlatheadOomt3, Montane; thence aloog the•aforesaid West boundary north 00'-05' 10 st 278.00 feet; than leaving aforaventioned West boundaz7 of the comty in and alang the tollowlag couraea: Rort!h W 54' 51' West 30.00 feet; tbmm North 7r 311 13' West 415.49 feet; tbm North 18' 241 32" Beat 330.13 feet; tbmce. Korth.16' 14, -32" Beat-175.34 test; thence South W 54' 45" Best 70.00 f ; + agate• to the West bmadary of -the County Road; theme a1mg-said m sT:- North 00' 05' I2" East 250.00 feet; tbeqco leavlmg &fcrmmtiowd tfest bowdery ct the County Road slat,; the = s. - 364th 84* 34' 5r Vast M-00 feet;, -.,- north � 061 28" Went--123. test; North 351 OS' 85.44 rest; tbmw South Ss• 20' W WOU 7ii.45 - feet; South 56' 38' 36' Wau UO.40 feet; - South 32� 191 Wait 91 .27 Punt; 22' 410. 33" Weft 144.30,feetid - South 4tF jig' go Vast 159.g0 feet; *North 19' 35" hest 250.33 Pest; tbegice North W 43' W West 296.57 feet; jforth W 00' 24" West 5W 00 feet; tbg=m 'Sm3th W-.09' 24" Wash r4e.02 feat; to the Best parcel in r7 so • ' Flathead ty,, on ; —W .05f • Ir Nest 100.00 feet to the Boutbonst corner of aforementioned porcel; thiiem along the south boundary of said parocel North W.,491 54" Nest a s taly A60 •feet to the thread of the StInvater River, t a1 the tb d of the StMwator River the fOUOWIM s tocourses: South 729 feet; tbmw.. south S5' Nest 122 feet; ce South 86° Nest 213 feet; tbance. south 330 want.459 feet; south OT Beat 247 feet; tbance south 58s Bast 207 feet; ' south W Bast 547 fmatk-tbence South 19a Nest 179 feet n" south 72a Most 224 fdot; • thence -- sOuh 29' Bast 272 tenet; tbmm South 7 e Best 768 feet; thonoe�a North W Feet 220 feet; i Oe ] 03e Neet tart•'' Ba feet; South 66 Rest 137` feet, . . t*L tba,East-West WiMct dti "af said section 6; thence North tW 1112" '- seat along s62d midsection line approximately 190 feet to the paint of begIming, 'the above description subject to the to as placed and the Certificate of Survey.subsequently to be recorded. Parcel omtaina r • 5.1 oozes more or less. SrATt Or 7MONlIiMAJ i! Cogan of Fiat , � Rii®d for record. at the reQvoat of Z,,•�i�� /his /day of t ?, at �!,/d o•ctoch M and roeorded•tq VOL. ..A.ZJ - PA®E Roto►d• of F he d Co t_y� slats, of Monts"O. Rea ......... �cu+ rs..vt 1�DEXEG `` PLATNaAO Co Tr CL644" o Rleomon tt�eet:pTtok No. Cl24i f CNP.4kED _ MaTURN To De, auty