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
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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,
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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.
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