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1. Memorandum of Understanding - KidsportsCity of Kalispell Post Office Box 1997 -Kalispell, Montana 59903 Telephone: (406) 758-7701 Fax: (406) 758-7758 MEMORANDUM To: Mayor Johnson and City Council From: Doug Russell, City Manager Re: MOU with Kidsports Meeting Date: November 17, 2014 BACKGROUND: In December of 2012, the city council authorized the acquisition of a permanent easement for the Kidsports property from the State of Montana. Part of the discussion leading up to that decision was the understanding that the City of Kalispell and Kidsports would enter into a new Memorandum of Understanding for the use and maintenance of the facility. In July of this year, we held a work session to review a draft MOU. At that time, council provided direction to add additional reporting requirements and to clarify Miracle Field responsibilities. The Kidsports Board has agreed to those additions and has approved and signed the attached agreement. The attached MOU identifies the responsibilities for each party and incorporates an annual maintenance fee equal to 50% of the user fees received by Kidsports. This fee can be reduced with a capital investment by Kidsports on an annual basis, as outlined in Exhibit C of the agreement. FISCAL IMPACT: The attached MOU with Kidsports is estimated to generate $23,000 to be used for maintenance of the athletic complex. Additionally, the MOU identifies the goal of Kidsports to perform an additional $2.26 million in improvements to the facility, which is equal to the cost of the permanent easement. RECOMMENDATION: It is recommended the city council pass a motion authorizing the city manager to enter into the MOU with Kidsports. Memorandum of Understanding 11''I I, AN NOW A Montana Municipal Corporation KIDSPORTS A Montana Charitable Corporation without Members 1. Purpose and c® The purpose of this Memorandum of Understanding [MOU] is 1) to describe the relationship between the City of Kalispell [the City] and Kidsports subsequent to the City acquiring a permanent easement from the State of Montana Department of Natural Resources and Conservation [DNRC] for a major portion of the real property leased by the City and developed by Kidsports as a youth sports complex [Complex]; 2) address future development of facilities at the Complex, including sports fields, parking, transportation and other accessory uses and amenities; 3) address financial responsibilities of the parties with respect to the development and maintenance of the Complex; and 4) maintain the positive, constructive working relationship between the City and Kidsports. 2. Recital of Facts A. The City entered into a special lease of state lands under MT State Agreement No. 3053189 on May 9, 1997 for the term of 40 years. The lease included approximately 138 acres located in the City of Kalispell in the SEI/4 of Section 36; an area bounded by Four Mile Drive (south), Highway 93 (east), and Reserve Loop (north). The sole purpose of the lease was to develop a youth athletic complex on the property. B. The City and Kidsports entered into an Agreement on December 19, 1997 for the same term as the above described lease that defined "the public -private partnership between Kalispell and Kidsports regarding the planning, development, financing, operation and maintenance" of the above -described property. C. The City and Kidsports successfully negotiated with DNRC for the City to exchange a portion of the leasehold interest in the above -described property for a permanent easement that preserves existence of the Complex in perpetuity. The City and DNRC will execute a Second Supplemental Lease Agreement addressing that portion of the leased premises not converted to a permanent easement. The Grant of Easement No. D-14505, dated March 18, 2013, was received by the City and is attached hereto as Exhibit "A." Among other things, it delineates the revised footprint for the Complex. The Second Supplemental Lease Agreement, when signed, will be attached to this 1\4OU as • The Initial Term of this MOU is 20 years commencing upon the execution by both parties. The parties agree to meet and discuss additions, corrections and modifications to this MOU at the request of either party. In addition, on each fifth anniversary date from the effective date of the MOU, Section 10 shall be reviewed and the parties may agree to change the contribution paid by Kidsports to the City to assist with maintenance costs at the Complex. This agreement may be extended for additional periods of five years each upon such terms as the parties agree. Should either party desire not to extend the agreement written notice shall be provided to the other party not fewer than ONE HUNDRED TWENTY (120) days prior to expiration of this MOU, detailing the reasons behind the decision not to extend the agreement. The other party shall have the opportunity to respond and the parties agree to engage in good faith discussions regarding the concerns of the non - renewing party and agreeing on a successor agreement. Should the City elect not to extend this agreement or the permanent easement extinguish as the result of action or inaction by the City, the City shall pay Kidsports and each member of the User Group the appraised value of permanent improvements it or they made to the Complex, so long as the User Group(s) no longer has access to these improvements upon terms substantially similar to those set forth in the MOU due to action by the City. The City and Kidsports or the User Group shall each hire, at their own expense, an appraiser to determine the fair market value of the improvements. If the two (2) appraisals do not differ by more than three (3%), the fair market value of the improvements at the then existing usage shall be the average of the two (2) appraisals. If there is a difference of more than three percent (3%) between the two (2) appraisals, the first two (2) appraisers shall select a third appraiser, who shall appraise the fair market value of the improvements at the then existing usage. The parties shall equally share the expense of the third appraiser. The average of the three (3) appraisals shall determine the fair market value of the improvements at the then existing usage. The City shall pay the fair market value of the improvements at the then existing usage to Kidsports or the User Group within sixty (60) days of the date of determination of the fair market value as set forth above. The City may deduct from the appraised value of any improvement it is reimbursing Kidsports for the amount of money it paid or contributed directly toward construction or installation of the improvement (i.e. does not include money spent by the City maintaining the improvement). 4. Master Plan of Complex The parties agree that master plans of the Complex have evolved since 1997, and they will continue to evolve. The parties agree that the current master plan will be amended to reflect the revised footprint of the Complex, and that it will be further amended as additional phases are planned and developed. After development at the Complex is completed, a final master plan will be prepared that will include all athletic fields and associated infrastructure (e.g. fencing, irrigation, storm water conveyance, sanitary sewer, electric, telephone and gas utilities, concession and storage facilities, restrooms and seating, etc.), roadways, both inside the Complex and in the immediate vicinity and leading to the Complex, and parking. Representatives of the parties shall meet periodically to discuss and agree upon future modifications to the master plan, which shall be subject to the review and approval by the governing bodies of the parties. The parties acknowledge that past master plans have been prepared by a third party and they further agree that a third party planner approved by both parties may be used to assist with future master planning. The City shall be responsible for the following: a) Maintaining and repairing: i. All athletic fields, including turf ii. Alllandscaping iii. All access roads, internal roads and parking areas iv. Sewer, -potable and irrigation water distribution systems V. All non -turf ground cover vi. All permanent fencing vii. Trash collection viii. Winterizing all water systems ix. Game preparation of all fields b) The parties agree that the improvements at the Complex are presently in optimal condition, and it is the intent of the parties that the present quality of the Complex be maintained and not deteriorate as the result of misuse, or the lack of attention, maintenance or repair. Both parties agree that the responsibilities outlined in this agreement are intended to prevent the deterioration of the facility through normal wear and to maintain the facility and its improvements as a top-quality complex that provides recreational opportunities for the community's youth and also serves as an attraction and destination for regional and state competitions. In performing its responsibilities as described above, the City has and will continue in the future to: (1) mow grass areas as needed, usually I or 2 times per week during the grass growing seasons; (2) string trim grass areas that are not mowed on the same schedule as mowing: (3) fertilize grass as needed, usually 2 or 3 times annually: (4) aerate grass areas as needed, usually I or 2 times annually; (5) thatch grass areas as needed, usually once a year; (6) apply pesticides to grass areas as needed, usually once every three years; (7) maintain (e.g. water, feed, mulch, prune, etc.) tress and perennial plantings; (8) maintain and repair access and internal roads, and parking areas; (9) garbage pick- up; (10) summarize and winterize the irrigation systems and pumps, concession stands and bathrooms; and (11) paint field boundary lines on grass playing surfaces. c) The City shall comply with the terms of the permanent easement appended hereto as Exhibit A, and Second Supplemental Lease appended as Exhibit B. a) Kidsports shall be the developer of the Complex and shall be responsible for the placement and construction of the improvements in accordance with the master plan. b) Kidsports will maintain liability insurance coverage during construction activities, which shall name the City as an additional insured party. c) Kidsports shall advise each User Group that the City requires that they maintain liability insurance for their athletic activities which also names the City as an additional named insured. d) Coverage amounts for the liability insurance policies obtained by Kidsports and each User pursuant to this paragraph 6 will not be less than $750,000 per occurrence or less than $1.5 million aggregate and shall be written on a "primary noncontributory basis." Subject to availability, each coverage shall be obtained from an insurance company that is duly licensed and authorized to transact insurance business and write insurance within the state of Montana, with a minimum of "A.M. Best Rating" of A- , VI. The purpose of this coverage is to protect the City, its officers, employees, agents, and representatives from claims for bodily injury and/or property damage which may arise from construction activities or conduct of program activities by the Users. Proof of insurance coverage shall be submitted annually to the City's Parks and Recreation Director. e) Kidsports shall have primary responsibility for: i. Development of improvements at Complex consistent with master plan, as amended, ii. Purchase of all playground equipment iii. Cost of delivering all electric and telephone utilities inside Complex iv. Maintaining all concession stands and restrooms (not including winterizing or summarizing) V. All metered water charges (not including irrigation) for concession stands/restrooms vi. All temporary fencing vii. Maintaining clean ground viii. Replace netting (e.g backstops, goals, etc.), benches and grandstands ix. Replacing the artificial surface at the Miracle Field f) It is the intent of the parties that the improvements not deteriorate through misuse, or lack of attention, maintenance, or repair. The parties agree that the improvements at the Complex are presently in optimal condition, and it is the intent of the parties that the present quality of the Complex be maintained and not deteriorate as the result of misuse, or the lack of attention, maintenance or repair. Both parties agree that the responsibilities outlined in this agreement are intended to prevent the deterioration of the facility and its improvements through normal wear and to maintain the facility as a top-quality complex that provides recreational opportunities for the community's youth and also serves as an attraction and destination for regional and state competitions. g) Kidsports may assign or contract one or more of the above responsibilities in subparagraph 6(e) above to third parties (e.g. User Group, etc.). h) Kidsports shall comply with the terms of the permanent easement appended hereto as Exhibit A, and Second Supplemental Lease appended as Exhibit B. i) Kidsports shall submit to the City the Public Copy of the 990 annual financial report. 7. Funding The City paid to acquire the permanent easement described in paragraph 2 above. Following execution of this MOU, Kidsports agrees to maintain and/or undertake capital campaigns to raise an amount of money that will be equal to or greater than the amount paid by the City to DNRC for the permanent easement. Funds received by Kidsports in consideration for releasing acreage from the lease, described in paragraph 2(c), shall be used for improvements to the Complex consistent with the master plan, as amended, and will be applied towards its capital campaign requirements as described in the preceding paragraph. It is further agreed that Kidsports will undertake additional fund-raising activities for the purpose of developing the Complex consistent with future master plans. ® User Fees. Kidsports has agreements with providers of youth athletic programs at the Complex. Those providers are referred to throughout this MOU as User Group and User(s). When User Groups begin using the complex more than three times in a one month period, , additional agreements will be generated between the providers and Kidsports. The agreements between Kidsports and the User Group define their relationship and, among other things, describe fees to be paid to Kidsports by the User Group. Kidsports, will advise the City of its success or failure to obtain agreement with new or existing User(s), which may result in denying use of the Complex to the User(s) with whom agreement has not been reached. Kidsports and/or the User Group may charge fees to visitors to the Complex (e.g. admission fees to events, etc.), advertisers (sponsors, fence ads, etc.), and others using or frequenting the Complex (e.g. associations, tournament participants, individuals etc.). Funds raised by Kidsports and/or the User Group may be used to further their purposes. The parties recognize that Kidsports and the User Group engage in fund raising activities (e.g. those just mentioned, plus registration fees, concession stand sales, tournament entry fees, etc.) to conduct their activities, and neither the fund raising activities of Kidsports or the User Group, nor the subsequent use of those funds, are subject to this MOU. The City may charge fees to persons or groups not charged fees by Kidsports or the User Groups. The City will only charge fees to persons or groups charged fees by Kidsports or the User Group if mutually agreed to in advance by the City and Kidsports. It is anticipated that fees charged by the City will be utilized for maintenance or improvements at the Complex, and will not be eligible for recreation programs or any other facilities under -the jurisdiction of the City, including its Parks and Recreation Department. If a user or prospective user disagrees with fees established by the City or Kidsports, representatives of the City and Kidsports will confer and agree upon an appropriate fee. Nonpayment of a user fee that is assessed consistent with this paragraph may be grounds for denying use of the Complex. Activities Kidsports and the User Group have priority for scheduling activities at the Complex. The City may schedule activities at the Complex that do not conflict with activities scheduled by Kidsports or the User Group, and the City shall ensure that no conflict exists before scheduling activities at the Complex. No party shall schedule activities that threaten to damage or compromise the Complex. Kidsports and the User Group shall solely be responsible for establishing and maintaining rules and regulations concerning the activities they conduct at the Complex, provided those activities shall comply with applicable park rules and regulations, laws and ordinances. 10. Maintenance Fees Kidsports shall submit an annual amount, as identified in Exhibit C of this agreement to the City of Kalispell by June 3 01h each year to offset a portion of the maintenance costs identified in Section 5. Kidsports and the City agree to meet during the annual budgeting process of the City to assess maintenance activities for the upcoming year and to identify potential activities %_1 W that may require attention. During the term of this agreement, Kidsports shall not reduce the rates charged to User Groups without receiving the prior written consent of the City. Kidsports may, however, during this term, increase the rates charged to User Groups without receiving consent of the City. If, pursuant to section 3 above, the City elects not to extend this MOU, it shall not increase rates charged to user groups more than 5% annually unless by agreement with the user groups. 11. Lease Payment Kidsports shall reimburse the City in the event the City becomes obligated to pay any lease payment for property not currently part of the permanent easement, but is part of the property under use of Kidsports. Reimbursement to the City by Kidsports for a lease payment shall be credited against the maintenance fee set forth in paragraph 10 above. 12. Independent Contractor The parties agree and acknowledge that the City and Kidsports are independent entities. In the performance of this MOU and the completion of its development responsibilities hereunder, Kidsports shall render services as an independent contractor and not as the agent, representative, subcontractor, or employee of the City. The parties further agree that all individuals and companies retained by Kidsports will not be the agents, representatives, subcontractors, or employees of the City. In turn, the City shall solely be responsible for meeting legal obligations with respect to its employees, contractors, agents and representatives. 13. Third -Party Beneficiarie.Q. In IN The parties acknowledge that Kidsports, in addition to primarily being responsible for development of the Complex, may conduct limited athletic activities (e.g. Miracle League, etc.). The youth sports programs presently occurring at the Complex are conducted by Kalispell Pee Wee Baseball League, Inc., Kalispell Babe Ruth League, Inc., Kalispell Youth Softball Association, Flathead Soccer Club, Flathead Little Guy Football, and Kalispell School District 5, or their successors (individually and collectively called the "User(s)" and "User Group"). Kidsports also functions as a liaison between the User Group and City. Kidsports will give written notification to the City of changes or additions to the User Group. The parties agree that the Users are third -party beneficiaries of this MOU, and they may rely upon and enforce this MOU. Modification and Termination a) In the event either party fails to perform its obligations under this MOU, the non -defaulting party may give written notification of the default to the other party. 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 of the American Arbitration Association. The expenses of the mediator shall be shared equally by the parties. b) Any and all amendments must be made in writing and must be agreed to and executed by the parties before becoming effective. c) This MOU may be terminated in writing by the parties at any time. This MOU shall be effective upon the signature of the City and Kidsports authorized officials, and shall remain in effect until terminated as provided herein. The City and Kidsports indicate agreement with this MOU by their signatures. Signatures and dates Authorized Signature of the City Doug Russell, City Manager Authorized Signature of Kidsports I tz-:Ip v Date WTEMM, IWIXMWROV� Formula for Calculating Annual Maintenance Payments due June 30 of each year. 1. In determining Kidsports annual contribution to maintaining the Complex, the base amount shall be considered to be 50% of gross receipts that Kidsports receives from user fees during each calendar year. This remittance, however, will be reduced based upon the capital investment of Kidsports and Users into the Complex during the prior calendar year: Amount of Capital Investment by Kidsports Maintenance fee remittance for the following year $0 to $9%999 50% of gross receipts from user fees $100,000 to $299,999 35% of gross receipts from user fees $300,000 and above 20% of gross receipts from user fees The annual maintenance fee payment set forth above will be reduced by the amount of any lease payment paid by Kidsports to the City as reimbursement for payments made to the State of Montana by the City. )Zr--taka 7-0! KAU6P6U 0-17,,t 201300008872 IIII IN Page: I Of 4 p,u5ma'l RT Paula -Robinson, Flathead County MT by NC Fees, $28.00 411212()13 3:25 PM Application No. 16204 Affecting a tract of land in E2SW4, SE4,Sec. 36, Twp. 29N, Rge. 22W Flathead County, Montana EASEMENT NO. D-14505 GIUNT OF EASEMENT IN THE NAME AND BY THE AUTHORITY OF THE STATE OF MONTANA TO ALL TO WHOM THESE PRESENTS SHALL COME: Know ye that the State of Montana (hereinafter referred to as "Grantor"), in consideration of the sum of Two Million Two Hundred Sixty Thousand, Four Hundred Ninety Six and 40/100 Dollars ($2,260,367.00), now paid, grants to City of Kalispell (hereinafter referred to as "Grantee") an easement for a non-profit Youth Athletic Complex and public park, including but not limited to fields and areas for minor and major Pee -Wee Baseball, Softball, T-Ball, Babe Ruth League, Football, Soccer, cross country running, ice rink and ancillary uses upon and across State lands, as follows: A tract of land within E2SW4, SE4, Section 36, Township 29 North, Range 22 West, P.M'.M., Flathead County, Montana, containing 122.09 acres, more or less, as shown and described on Certificate of Survey No. 19467, recorded March 114. 2013, a copy of which is attached hereto and made a part hereof. The grant of this easement is subject to the following conditions-. The Grantee shall comply with the Montana Antiquities Act, Title 22, Chapter 3, Part 4, MCA and the Human Skeletal Remains and Burial Site Protect -ion, Title 22, Chapter 3, Part 8, MCA. It is also agreed that the Grantee shall comply with such rules or regulations as may be hereafter imposed by the State Board of Land Commissioners to insure that the environment will be adequately protected and the public health and safety not be endangered. The Grantee shall be responsible for controlling any noxious weeds within the easement borders. The Grantee's methods of control must be reviewed by the Grantor's Area Field Office that has jurisdiction for that locale. The Grantee shall comply with the ' Montana County Noxious Weed Manaaement Act, Section 7-22-2101 MCA et. seq., as follows: The Grantee shall notify the local weed board that is responsible for that geographical. area that the project is located in. If the Grantee disturbs vegetation for any reason, Grantee shall be required to revegetate the disturbed area. The Grantee shall submit to the local weed board a written plan specifying the methods to be used to accomplish revegetation. The plan must describe the time and method of seeding; fertilization, recommended plant species, use of weed -free seed, and the weed management procedures to be used. This plan is subject to approval by the local weed board, and therefore must be 1 110111111nIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII�IIIIIINBIII11IoNllll11li�!UIIIV ,�sees. $28.00 4/12/2013 3:25 PM signed by the chairman of the board. Upon termination of this easement, Grantee shall reclaim the entire area in accordance with this paragraph. Provided, further, that the easement granted herein shall be assignable by Grantee only with the written approval of the Director, Department of Natural Resources and. Conservation. The Department's approval. of an, assignment of this easement shall not be withheld so long as the Grantee is in compliance with the terms and conditions of this easement. Provided, further, that the easement granted herein is not exclusive and does not interfere with the Grantors right to issue additional. easements so long as they do not interfere with Grantees rights hereunder. Provided, further, Grantee is responsible to ensure any use of surface and ground water is in compliance with Montana Code Annotated Title 85, Chapter 2, Part 3, MCA. Provided, further, Grantee will comply with all local, state and federal laws and regulations that apply to the granted use. Provided, further, Grantee will comply with all applicable local zoning, subdivision, design review, and construction standards required by the City of Kalispell. Provided, ftirther, Grantor has the right to review or approve matters relating to the development, placement, replacement or modification of the Premises by Grantee or the installation, construction, change or alteration of, addition to or removal or demolition of, any Improvements, or the use or enjoyment of the easement, for any of which a Major Amendment is required to effectuate the change. "*Major Amendment.If means an amendment of Kalispell land use regulations that requires (by applicable Laws in effect as of the grant Date) an official vote by the Kalispell City Council or, if the Kalispell City Council delegates or is required to delegate by Laws its authority to a commission or other governmental or quasi - governmental authority, an amendment that would have required an official vote by the Kalispell City Council as of the grant Date. Any approval . of Grantor hereunder will not be unreasonably withheld, conditioned or delayed. Grantee shall maintain the protective barrier and interpretive signage for the landmark tree known as Spring Prairie Tree as long as the tree is healthy and sound. Grantee shall make reasonable effort at arboreal care to support the health and safety of the tree. Any future construction. or re -grading activity that takes place within 100 feet of the base of the tree will require review and approval. in writing by Grantor. Provided, further, Grantee shall be solely responsible for the expense of maintenance and operation of the use and all current and future improvements made and constructed in support of the purpose. Grantee will pay all costs and. expenses arising out of the installation, construction, change or alteration of, addition to or removal or demolition of all improvements. Provided, further, Grantee shall pay all taxes, special assessments, levies, fees, and other governmental charges of every kind or nature that may be levied by any and all federal, state,, county, municipality and any other taxes or assessing authority upon the land, the use of the land, and, improvements and property owned by the Grantee on or about the easement. Payments shall be made not later than ten (10) days prior to delinquency of taxes, special. assessments, levies, fees, and other governmental charges. Grantee shall cause all taxes imposed upon all improvements situated in, on or about the Premises, to be levied or assessed separately from fee ownership and not as a lien there under. Grantee shall indemnify, defend, reimburse and hold the Grantor harmless for any liability arising from its future use of the above - described premises under any environmental, pollution, and health -laws, rules, or regulations, including liability for release of hazardous wastes or hazardous or toxic substances or other pollution or environmental damage or condition under any state or federal. law, rule, or amendment thereto. This duty shall extend to all. claims, judgments, losses, penalties, liabilities (including strict liabili- ty), encuIr-Lbrances, liens, costs, and expenses of investigation and 300008872 age, P 11111 WE 311 $1111111 Fees: $2S.00 4112/2013 3,25 PM defense (including attorney fees) of any claim, whether or not such claim is ultimately defeated, and any good faith settlement-, including reasonable attorney fees and disbursements and consultant fees. It shall. include the costs of preparation of remedial investigations and feasibility studies and reports, the Cost of any cleanup, remediation, removal, response, abatement, containment, closure, restoration, or monitoring required by federal or state agency, and liability to any third person or governmental agency to indemnify it for those costs. Provided, further, Grantee shall indemnify and hold harmless Grantor against all claims or liabilities asserted by third persons resulting directly or indirectly from Grantee's acts or omissions hereunder regarding past, present and future use of easement area defined herein whether negligent or otherwise. Provided, however, Grantor has made no representation as to the present or future condition of the property and the Grantee assumes all risk or damage to property or an injury to Grantee or persons or property, in connection with the exercise of or rights granted hereunder. Provided, that Grantor may terminate this easement for a material breach of any of the conditions or provisions of this deed. Before termination, the Board shall give Grantee written notice of intent to terminate and a reasonable period to cure the breach. It is further provided that whenever said lands herein granted as an easement shall cease to be used for such purpose, the easement shall terminate upon notice to that effect being given to the said Grantee named herein. IN TESTIMONY WHEREOF, the State of Montana has caused these presents to be executed by the Governor, and to be attested by the Secretary of State, and countersigned by the Director, Department of Natural Resources and Conservation, and the Great Seal of the State, and the Seal of t .Xe State Board of Land Commissioners to be hereunto affixed this L& day of A.D. 2013. r Q-4 W os� IT y L 1 N�4 M 4W 7 -e 40 , PTtNk ...... .............................. Governor of the State of Montana ATTEST: U f. ........... I ....... .. ...... Secretary of State Countersigned by: r... .................... Director, Department of Natural Resources and Conservation Accepted and Approved: ............................... Applicant ......... ............. Printed Name and Title 11 11111 Illil Hill 111111111111111111111111111111111111 IN ga1300008872 lo �J J � ti n o �i �'•� X � �''�•,, ��� c n•.+nc:a vyw �Q oTW.•-ow � .•� o'� � W .�. � � � � �`, � i11 �j .�. ��•. "' y a .a. � iC 4` � zt rC � '.k Q q� � � •� .� y6j �1 � ay, G '� V rj' •:S fi! CY G i � � ttf 6 •..s.-,....- .1'..""-"`^_---'.i_ 4 k 'u` �{ h R ¢ R q `r �= G `�` '" � i � � •y�ea. bpi :::�' ��.3 L� 5,,,,� � t X \ � � G •j`�, S�3 s m C1 Nj p '$ Y tl � lD � .Q T"` G y... �p G2.f � 1,� � < a p � � ZS J C U G C M Cl p � � [Yi � P.G '+i ` » gg�� $$11 g! ns ' LJ m �• N ra m .» ' aa ,r - c N U P ik tl N C y p U.f ii,�� iti i \ 5. 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STATE LANDS' NO, 3-05­318''91 This Second SupplemO` ntal Lease Agreement (SLA) is made and 'e' enter d into this day. of J)P'dcm. b6,,e,, 201.2 by and between the- State'- of Monta'' a, Dep*art n Ment of'Ndtur"al Resources and Cons ek'Vation,, Land ManagpmentDivision whose address' . ts P. 0; B 6'x th 201601 -1625 11 Avenue, Help-na Mont' A 596204601 er n an (h ei' after referre.d to as * the "Department") and'THE' CITY 0 F* whose address is P..O. Box 1.997, -lispe 11 KALISPELL Ka MT 5 9903 (bereinaftetr're* ferred to- as. "the City"). WHEREAS, the City and the Department are parties. •to Special. Lease •of State Land 4305-3199 0ornpr"Ising ap'p*roximately 134.45 acres lo h 3.1 cated within' the 8 1/2. of ,on Secti3• Tow'n'ship'29 North..'Range 22 West. -MPM an,d'su'h lease i.s currently 'utzed as • bli C M•il -P recreational facility.for youth spo'rt8i WHEREAS, the Department is -interested in commer.c . iallly developing. ap "ately proxim 13.5 acres of these lease promi.ses directly adjacent to the former DNRC ag'enoy office 'site, and is willing to authorize use 6fapproximat.. ely 3 acr s of additional I an ds to the City -(see Ekhibit I attached for a net -keduction of. a ' ately 10. 5 acres pptoxiTn WHEREAS, the Department proposes the issuance of, if necessary, a minimum of three Requests* for Proposals-Leasin P) g includinthe July, 2.012 R FP effort, through.Febr' �(RF g uary, 201*8. The-go*atof these RFT effort, will -be. to obtain'a commercial gro d-lesseo .(hereinaft-er s un.. referre 4 to as. the developer') who will dev6lo' is approximately 1.3-5 a­c'r`e co b ed, Q th m• parc with the. for 'er. DNR n M C ago' cy offic-e.site -and the -devi oer- will, 6`nter- i'' neg tiations wi hAhe -e:--R- T's- w 11 be i's, d City. of Kali§pell* for qn-y'lq'ip -• em, etit 'i�pp n .-the 'e h• e8. Y �o v S am. Eac, bf-ih':.'. I ue consist Ont, w itb t' and con'ditions "'f the July 30, .2012. 1RFP_U.-,.a­ s*ing.. 0 W -1 AS5. the city.. is willing to relinq'u"ish. the. approximately 13.5. ade.-part .. from the 4ERE 4pproxim. leasehold .6.s'.to -allow the-0epartmofit t'0 - ente-finto a coiniiiercia 1--ledse. agreement f We W.fth.,a,4)kb8p,0ct' A A developer.: t' th bi esin WHE'XtAS ..the -City is ,willing to wii*­0 ..:right;: titlb or nt i property . I 'epAing i igenbe' Phase an&en efifik -into'- thebpthent 5U ce - o mib Pha*s0:of-a.c'mJ.­,n- ar -ia1'le­a8e*. the 'Departm *s 116' to"' 0 0 with t City 0f.'ka',lisp­.�1.-1 on any Department I wi i , 'at- wi g c, Q.per y future Sqpiedmentd.1 Lease A regiment as.. nec.essarb v t0 amend the­ bo�w r o f thelease area .to ft hid the ,previous v:released "rox AeY..-l3.5 acre area back into ­this 1ease -i any commercial `& Js ter nated:pr or. o.aeve. opment.- - WI­REA ee ''lt. t -b'Dpparmen,as -:noM --d co. . id dg oper:*ior`h .6 -byF6b ea.. convenehalf task"V.or C.'d t 1Ufo ae the CZt:.::of:alls e11::and:Klds ores fA.dk t .Nb. and reassess the project. At i s sole discretion the Department will determine. if the Special it Lease of State .-Lands' #3 053189' 'ill.r fore- e on the approxim 'ly 13.5 act :s -of Ian w emain in ate e NOW, THEREFORE the City and the D ep.artment hereby a' State Lease No. agree to amend 3053189 as follows: 1. Effective upon execution of a. new com 'W ground.leas'e betw­ en -the Department and the mercia, e. developer as ar the actual le'' ed Qa will b- Approximately 122-.09. acres and generally depicted as KIDSPORTS. PROPOSED EASEMENT PARCEL on ached att Exhibit I titled: CITY,OF KALISPELL/KID SPORTS PROPOSED EA SEMENT. following -language. is inserted i tni nt o* paragraph 3 of the Lease, concerningreo at. Should the Lessee submit a co P atlete applic' Mion to purchase Public Park Easement on St any.portion of.tho. -Lease-pre m"ises described hereinabove, on or before December any year during the term of this Lease, ann th' r e ual' entalpayable on the suce'e.'edin. g March I't -and each ye ar thereafter. shall. be proportionately reduced by aftaction representing the acreage purchased divided by't he total acreage original�y committed to m thi's Lease. 3. The Fee Schedule. in Paragraph 3, "Rental Rate" -of the Original Lease, and as modified by Supplemental Leas e' e e ment d . ated February 5, 2003, is hereby further modified to includ Age the following statement.. Notwithstanding anything contained in the Or iginal Lease or as modified by the Supplemental Leas' e Agreement dated'Februa Y 5, 2003 to the'contrary, the leasefee will be'xecalculate'd.as qpmear pr ior )priate e�ch --to the -end of the billing per I*od.: to.account y fi.r.'an- ch to. -le ndments. Partialyears may bepro'!, y ...qngos in acreqgq- due qsa.areaamo rated,. howe, ver, -no lease payments made wilt. be -refunded 4. The s of this Stipple' enial. .Lease Agreement'de and control over any provision.. m. -supers e' conflicting provisions of -the above:-doe'r" ibed- lea's'. How, ever.* the roffiaindor* of the terms of 0 the abo've�de'S:C'ribedl ea8 e, As previously amended, shal 1'. r6indi n'uneha n ed. g 5. This.' shall 'bffid the- - D d. the. Lessee, S. pl'e*.m.e"iii-a"1,.:L.�o,."a�.e..Ag�.:e" -on­8ha- -'be i4-g p _epaft-m­ei.i.t--aii em t upon eX`ecutors,r andth'ir,hpirs successors, and assigns. 6.- The validity, ',construction, interpretation, and ..administration- of this agreement shall be governed by the substantive laws fState-o o the - of M ntana, d f DATED this ayo 20 1 Z. 9 Doug sse , . ity Manager STATE OF MONT'ANA ) ss County of Flathead ) This instrument was acknowledged before one ori`�:�.:` `���a ���:���:.� `��?�2012 by . DougRussell, as City Manager of the City of Kalispell, on behalf of whom this instrument was executed. JUDI A. FUNK NOTARY PUBLIC for the nY) State. of Montana Idin at Kalispell, Montana y at E ires February 25, 2� 6 MONTANA DNRC Mary Sexton, Director Montana: Department Of Natural Resources and- Conservation By: Steve Frye, Area anager Northwestern Land Office (Si gnature of notary public) (Name - typed, stamped, or printed) esiding at. - My commission expires: S 89058'06" E D=83°50'46" 226.50' R=420.00' L=614.62' COMMERCIAL C, o Cl REMAINDER � w (3 LOTS) 36'13$0 SgFt okn8.296 Acres z N 89°54'46" W N F 601.33' EXHIBIT 1 l�TT\/ !lT T/ A T Tt�TTT T /iiiTl�i�rli�ml� Lll Y Vt' N iiL1JYr-.LL/ 1t11Jn1'Vl[l� PROPOSED EASEMENT N. Section 36, T29N., R.22W., P.M.,M. Flathead County, Montana 500 `. 0 250' 501 S 89058,06" E - e RESERVE LOOP � � _ h 1067.6$' S 89°58'06" E D=21 °00'55" 1249.19' S-000913" W R=935.04' z 47.74' L=342.96' o 0o S 14002'47" E o 61.86' N 89°58'06" W 400.00' VICTORY COMMONS COMMERCIAL LOT 1146"w o rn 14' z z 1229857 SgFt 04 o �- N O 07 o 28.234 Acres S 89°48'52" E S 2.4,85' Z) S 90000'0011. W S 14016'50" W 2 363.66" 9° 41.18' KIDSPORTS -PROPOSED , 3 �'� °�- a Cq EASEMENT PARCEL m 538 SgFt LU m 0 �, U) N 122.083 Acres `r N N 89°50-21" W. Cl04 80,07' S 0°427" W z 99;99' N 89°49'53'• W a 225.04' ~ cn a rn S 89°4823-T 3Q5.04'. S 0,11'01" W 135:00' S 4°00'45".W 150.33' N N 89°4443" W S 89°55'39" W 2338:37' 0 S 0°04'33".E.... . S 0°04'33" E 36.86 S .88"04'28" W °. FO'U R M-I L�E DRIVE 0., '8 9°55'2T' S 100.60' F � H:L�nd Surveying; lnc: 144 Second S#reet East