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H1. Immanuel Lutheran MOUPLANNING FOR THE FUTURE MOI ANA REPORT TO: Doug Russell, City Manager°a" FROM: Tom Jentz, Planning Director SUBJECT: Immanuel Lutheran Bike Path MEETING DATE: September 18, 2017 Planning Department 201 1" Avenue East Kalispell, MT 59901 Phone: (406) 758-7940 Fax: (406) 758-7739 www.kalispell.com/planning BACKGROUND: On November 2, 2015 Council approved conditional use permit KCU-15-04, a conditional use permit for five phases of development at the Immanuel Lutheran senior living/care facility. The five phases of development includes approximately 92,370 square feet of new construction, 68,240 square feet of renovations to existing buildings, surface parking lot expansions, relocation of water/sewer lines, new sidewalks, street improvements and landscaping. Condition No. 10 of KCU-15-04 required that Immanuel Lutheran grant an easement to accommodate a bike path along the properties western property boundary. Since that time staff has worked with Immanuel Lutheran and their engineers to come up with a design and location suitable for both parties. Accordingly, an easement for the bike path, memorandum of understanding and exhibit of the trail location have been drafted for Council consideration. RECOMMENDATION: It is recommended that the Kalispell City Council approve the easement and memorandum of understanding with Immanuel Lutheran Communities for the Immanuel Lutheran bike path. FISCAL EFFECTS: No impacts anticipated. ALTERNATIVES: Deny the request. ATTACHMENTS: Bike path easement, Memorandum of Understanding and bike path exhibit Report compiled: September 14, 2017 c: Aimee Brunckhorst, Kalispell City Clerk Memorandum of Understanding between THE CITY OF KALISPELL and IMMANUEL LUTHERAN COMMUNITIES I. The Parties, Purpose and Scope The parties to this agreement are the City of Kalispell (hereinafter referred to as "the City"), a municipal corporation duly incorporated and authorized under the laws of the State of Montana, with its principal office at 201 First Ave E, Kalispell Montana 59901 and Immanuel Lutheran Communities (hereinafter referred to as "ILC") a Montana corporation, duly formed and authorized under the laws of the State of Montana, with its principal office at 185 Crestline Ave, Kalispell, Montana 59901. The purpose of this Memorandum of Understanding (MOU) is set forth the terms of understanding between the parties regarding the establishment of an easement on ILC properties for the construction and maintenance of a bike and pedestrian walking path for use of the general public for non -motorized transportation purposes only. The scope of this agreement is to identify the easement, the consideration for the easement and such other terms that will identify the contingencies and options to which the parties agree. II. Recitals A. The Easement Agreement and map attached hereto sets forth the essential terms of the parties' agreement for the placement and construction of the bike and pedestrian walking path on the property of ILC; and B. However, the Easement Agreement does not adequately meet the requirements of the conditional use permit issued by the City to ILC for its development; and C. For this reason, the parties enter into this MOU to rectify the deficiencies not otherwise addressed in the Easement Agreement. III. MOU Term The term of this MOU Agreement shall run concurrent with the term of the Easement Agreement attached hereto. Page 1 of 3 IV. V. VI. Responsibilities of ILC A. ILC shall grant to the City an easement for the construction and maintenance of a bike/pedestrian trail in the form as attached hereto. The easement shall be recorded pursuant to the requirements of the conditional use permit. B. ILC agrees to pay a mitigation payment to the City for the loss of a buildable pad south of the garbage enclosure as required in the conditional use permit. The mitigation payment shall be payable to the City at such time that the project goes out to bid to build the trail within the ILC easement herein described. The mitigation payment of in the sum of $10,499.50 shall be increased annually by 3% until such time that the sum becomes payable. C. ILC hereby accepts the restriction that the property described within the easement attached hereto shall be made clear and remain clear of any structures or impediments (light poles, fire hydrants, utility boxes, etc.) during the term of this agreement and so long as the easement is in effect. Responsibilities of the City The City agrees that in the event the subject bike and pedestrian walking path is constructed in a different location that does not utilize the ILC easement subject to this agreement, the above described mitigation payment shall not be required of ILC by the City and the easement granted herein shall be reverted to ILC by the City. Effective Date and Signature This MOU shall be effective upon the signature of the authorized officials of the parties. Signatures and dates Doug Russell, City Manager For the City of Kalispell Date Jason Cronk, CEO For Immanuel Lutheran Communities Date Page 2 of 3 STATE OF MONTANA ) ):ss County of Flathead ) On this day of 2017, before me, the undersigned, a Notary Public for the State of Montana, personally appeared Jason Cronk, in his capacity as the Chief Executive Officer of Immanuel Lutheran Communities, that executed the foregoing instrument, and acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year in this certificate first above written. Notary Public, State of Montana Printed Name: Residing at My Commission Expires STATE OF MONTANA ) ):ss County of Flathead ) On this day of 2017, before me, the undersigned, a Notary Public for the State of Montana, personally appeared Doug Russell, in his capacity as City Manager for the City of Kalispell, that executed the foregoing instrument, and acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year in this certificate first above written. Notary Public, State of Montana Printed Name: Residing at My Commission Expires Page 3 of 3 �_. -_ — — — — — — — — — — — — — — 1 � 111 I 1 I I I OF KNa_5Np2 Ir N1GNLppof Noe N,LA°FI r I \ \ — BOUNDARY OF TEMPORARY i �\ CONSTRUCTION EASEMENT10 1 1 1 I \ BURDENED AREA EXISTING AND PLANNING 1 \� \ IMPROVEMENTS I 11 \ POTENTIAL 6 FT \ / TRAIL LOCATION GR \ 10 5 0 10 \ s� SCALE IN: FEET IMMANUMorrison "ESTC CAMPUS IMPROVEMENTS COMMUNITIES PROJECT NO Kahwoothau 59101 oOAwN BV AJM: WEST CAMPUS SITE IMPROVEMENTS Kalispell M- 59�01 OWN 8V A,1M 4668017OS Maierle P,-e4467s2— APPR6Y _,M KALISPELL MONTANA pax 406 752 2391 rng,neers . wrveyors •planners . c;ent;ats DATE 702016 FIGURENUMBER s cuu^n;au..iaw:.ne� :r.� :i ii TEMPORARY PATHWAY CONSTRUCTION EASEMENT ��� U 14666-klt,4MO1703 Retreat Expansion - CmtWCAMShe ISIWest CampuslEasementslBIKE Exmbit ewg Planed by aamn m wnkey 01 OM31QUvt City of Kalispell Planning Department PO Box 1997 Kalispell, MT 59901 CONSTRUCTION EASEMENT AND AGREEMENT TO CONVEY BICYCLE AND PEDESTRIAN PATHWAY EASEMENT THIS AGREEMENT is made and entered into this day of , 2017, by and between Immanuel Lutheran Communities of Kalispell, Montana (herein `Grantor"), and the City of Kalispell, of Kalispell, Montana (herein `City'). Whereas, Grantor owns the following described real property located in Kalispell, Flathead County, Montana, which property is herein referred to as the `Property": Lot 1 of Highland Park No. 5, according to the map or plat thereof on file and of record with the Office of the Clerk & Recorder, Flathead County, Montana. Whereas, the City wishes to obtain a temporary easement over and across the Property for the construction of a bike and pedestrian pathway. Whereas, the parties wish to document their agreement and understanding regarding these matters, all as further herein set forth. Now, Therefore, in consideration of the foregoing recitals, the following terms, conditions and covenants, and other good and valuable consideration, the receipt of which is hereby acknowledged by all parties, the parties mutually covenant and agree as follows: Grant of Temporary Construction Easement and Agreement: Grantor hereby grants to City a right of temporary construction and entry for the purposes of constructing a bike and pedestrian walking path for use of the general public for non -motorized transportation purposes only. All temporary construction activities, and placement of final pathway including appurtenant structures shall be located west of the boundary as illustrated and described in Exhibit 1. The Grantor agrees not to construct or place any future improvements within the burdened area without written approval of City, provided Grantor shall be allowed to place or install include landscape plantings or ground cover within the burdened area without written approval of the City. Page 1 of 3 2. Retirement of Temporary Construction Easement Agreement: Grantor and City agree that the temporary construction easement shall be fully retired and terminated upon completion of constructed pathway. Upon completion of construction the Grantor shall grant to City a permanent easement for the placement, use, maintenance and replacement of a bike and pedestrian pathway within the burdened area as illustrated in Exhibit 1. The dedicated easement shall be centered upon the final placement as constructed within the burdened area, limited to a width of 15 feet as centered upon the constructed alignment. The permanent easement shall not include any portion of the Property outside the burdened area. City acknowledges and agrees that if designs are not completed for construction of a bike and pedestrian pathway or the construction of a construction pathway is not completed within 10 years of the date of this agreement, the temporary construction easement and agreement shall be fully retired and terminated. 3. Construction: Grantor and City agree that construction placement and access shall be limited to burdened area. City agrees any damage to Grantor's property beyond burdened area shall be replace as no expense to the Grantor. City agrees that disturbed areas within burdened area shall be repaired or replaced to equal or better condition following construction. City agrees construction shall be limited to a duration of no more than 90 days. 4. Limits of Agreement: City agrees that temporary construction easement shall only be used for design, ingress/egress for construction activities and construction of bike and pedestrian pathway. City further agrees the pathway will strictly be used for non -motorized activities excluding maintenance activities or snow removal. City agrees that Grantor shall have no responsibilities for construction, maintenance or operation of pathway. City agrees that Grantor shall have no liability or responsibility for any damage, injury or harm as a result of persons utilizing the bike and pedestrian pathway on the Property. Entire Agreement: This Agreement, in conjunction with the parties' MOU attached hereto, represents the parties' entire Agreement as to this matter, and supersedes any and all prior agreements, oral or written, and all negotiations and prior understandings of the parties. This Agreement may not hereafter be modified or amended unless same is in writing signed by both parties hereto. 6. Binding Agreement: This Agreement is binding upon the parties hereto and their respective heirs, successors and assigns. In Witness Whereof the parties have hereunto set their hands and seals the day and year first above written. CITY OF KALISPELL By Doug Russell, City Manager Page 2 of 3 Immanuel Lutheran Communities By Jason Cronk, CEO STATE OF MONTANA ) ):ss County of Flathead ) On this day of 2017, before me, the undersigned, a Notary Public for the State of Montana, personally appeared Jason Cronk, in his capacity as the Chief Executive Officer of Immanuel Lutheran Communities, that executed the foregoing instrument, and acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year in this certificate first above written. Notary Public, State of Montana Printed Name: Residing at My Commission Expires STATE OF MONTANA ) ):ss County of Flathead ) On this day of 2017, before me, the undersigned, a Notary Public for the State of Montana, personally appeared Doug Russell, in his capacity as City Manager for the City of Kalispell, that executed the foregoing instrument, and acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year in this certificate first above written. Notary Public, State of Montana Printed Name: Residing at My Commission Expires Page 3 of 3