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Tidyman's Development AgreementDEVELOPMENT AGREEMENT This Agreement is made as of October 1Ii`' 19 1 n g �, 9 by and between the City of Kalispell, Montana, a municipal corporation and political subdivision of the State of Montana, (the City), and. Tidyman's, Inc., a Washington corporation, a/k/a warehouse Industries, Inc., in Montana with its principal place of business at E. 17515 Appleway, Greenacres, WA 99015, Washington ("Developer")6 WITNESSETH: WHEREAS, the City is a general powers city, existing and - organized under the constitution and the laws of the State of Montana; and WHEREAS, the City has elected to exercise the powers of an urban renewal agency, pursuant to Title 7, Chapter 15, Parts 42 and 43, Montana Code Annotated as amended (the "Act") and Ordinance No. 933 of the City, adopted by the City Council on September 10, 1979, and WHEREAS, ordinance No. 933 adopted the Kalispell Downtown Redevelopment Plan as the urban area renewal plan (referred to hereafter as the Redevelopment Plan) for the urban renewal area known as the Kalispell Downtown Redevelopment Area (referred to hereafter as the Redevelopment Area); and. WHEREAS, ordinance No, 933 states that in order to implement and effectuate the Redevelopment Plan, it will be necessary for the City to take certain actions with reference to "the upgrading and improvement of public and private utilities within the project area, provisions for public parking, the rehabilitation of residential and commercial structures, and acquisition of real and personal property, the relocation of person(s) displaced by acquisition of real property, the demolition and clearance of structures acquired by the City where necessary, the provision of public improvements, providing building or site preparation for disposal for private or public redevelopment, the rehabilitation and moving of structures, the disposition of acquired property for public and private redevelopment and/or rehabilitation"; and WHEREAS, the Redevelopment Plan, as adopted and implemented contains a tax .increment financing prevision coextensive with the Redevelopment Area; and WHEREAS, as the Redevelopment Plan has been amended by Ordinance No. 1065, adopted by the City Council. on November 4, 1985, ordinance No. 1168 adopted by the City Council on September 1 3, 1991, and ordinance No. 1169 adopted by the city Council on September 3, 1991; and WHEREAS, ordinance No. 1168 approved as an urban renewal project the Tidyman's, Inc. project to be located within the Redevelopment Area (referred to hereafter as the Project), authorized the use of tax increment revenues to finance certain Infrastructure Improvements necessary to the Project, and authorized the entering into of a development agreement with Tidyman's, Inc. in order to accomplish the development of the Project, upon terms and consistent with the Act, the Redevelopment Plan, and ordinance No. 1168; and WHEREAS, Tidyman's, Inc., as the Developer and the City desire to encourage the highest and best use of the property within the Redevelopment Area, NOW, THEREFORE, in consideration of the foregoing premises and the mutual obligations set forth in this Agreement, the parties hereto hereby agree as follows; ARTICLE 1 Definitions Section 1.1, Definitions. In this Agreement, unless a different meaning clearly appears from the context. "Act" means Montana Code Annotated Title 7, chapter 15, Pages 42 and 43, as amended. "Agreement" means this Development Agreement, as the same may be from time to time modified, amended or supplemented. "Assessed valuation" means the value of property as determined by the Department of Revenue in accordance with the Montana Code Annotated. "City" means the City of Kalispell, Montana. "Construction Plans" means the plans, specifications, drawings and related documents for the construction work to be performed by the City and Developer on the Project Property, which (a) shall be at least as detailed as the plans, specifications, drawings and related documents which are submitted to the building inspector of the City and (b) shall include at least the following: (1) site plans; (2) foundation plans; (3) elevations on all sides; (4) landscape plan; (5) grading plan; (6) utility plan; and (7) Infrastructure plan. "Developer" means Tidyman"s Inc. 2 "Infrastructure Improvements" means the list of improvements and work requirements to be constructed by the City as set forth in the attached Schedule 1, entitled "Kalispell off -Site Development Cost Estimate". The improvements listed on Schedule 1 include improvements that are located adjacent to (off -site) and within (on -site) the Project Area. "Project" means the Project described in this Agreement, "Project Area" means that tract of land bounded by the Burlington Northern railroad tracks on the South, Montana Street East on the North, Main Street on the west, and Third Avenue East North on the East. "Project Property" means the real property in the Project Area on which the Project will be constructed, the legal description of which is shown on Schedule 3. "Section" means a section of this Agreement, unless used in reference to Montana Code Annotated. "State" means the State of Montana. "Tax Increment" means that portion of the real estate taxes paid with respect to the Redevelopment Property which is remitted to the City as tax increment pursuant to the Tax Increment Act. "Tax Increment Financing Plan" means Tax Increment Financing Plan for Tax Increment Financi g adopted by the City Council dated � R r "Time Table" means the schedule of performance dates for certain actions by the City and Developer under this Agreement to be agreed to pursuant to Paragraph 3.1 below. "Unavoidable Delay's means a failure or delay in a party's performance of its obligations under this Agreement, or during any cure period specified in this Agreement, which does not entail the mere payment of money, not within the party's reasonable control, including but not limited to acts of God, governmental agencies, or the other party, strikes, labor disputes (except disputes which could be resolved by using union labor), fire or other casualty, lack of materials, or delay caused by injunction or other court order, or declaration of invalidity pursuant to Montana law by initiative or referendum provided that within to days after a party impaired by the delay has knowledge of the delay it shall give the other party written notice of the delay and the estimated length of the delay, and shall give the other party written notice of the actual length of the delay within 10 days after the cause of the delay has ceased 3 to exist. The parties shall pursue with reasonable diligence the avoidance and removal of any such delay. Unavoidable Delay shall not extend performance of any obligation under this Agreement unless the notices required in this definition are given as herein required. ARTICLE 2 REPRESENTATIONS AND WARRANTIES Section 2.1. By City. City makes the following representations and warranties to Developer. (a) City, under the Act, ordinance No. 933 and ordinance No. 1158 has the power and authority to enter into this Agreement and carry out its obligations hereunder. (b) The Project is an "urban renewal project" within the meaning of the Act and has been approved by the City Council in accordance with the terms of the act and ordinance No. 933. (c) The Urban Renewal Plan, as approved by ordinance No. 933, contains a provision for tax increment financing for the Redevelopment Area and since 1980 tax increments have been collected, segregated by the County Treasurer and transferred to the City for the benefit of the Redevelopment Area. (d) The City has on hand, in its Tax Increment Fund, at least $500,000.00 and otherwise has sufficient funds to complete its obligations under this Agreement. (e) The City has determined that the infrastructure improvements identified on Schedule 1 hereto (the "Infrastructure Improvements") are necessary to the development of the Project. (f) The cost of designing, engineering, acquiring and constructing the Infrastructure Improvements (including certain engineering, design and planning work already completed by Developer) are costs that can be financed through tax increments pursuant to section 7-15-4888 of the Act, and the City Council has authorized the use of tax increments to finance those improvements, subject to Section 3 hereof. Section 2.2 By Developer. Developer represents and warrants that: (a) Developer is a corporation duly organized under the laws of the state of Washington, is licensed to do business in the state of Montana, has power to enter into this Agreement, and has duly authorized the execution, delivery and performance of this Agreement. 4 (b) Developer is owner in fee simple of the real property constituting the Project Property. (c) Developer desires to construct on the Project Property a grocery store which is approximately 52,000 square feet in size, together with all related on -site improvements, including, but not limited to, off --street parking, landscaping, and on site utilities. (d) Developer estimates that the costs of acquiring the Project Property and, designing, and construct the grocery store as described in subparagraph(c) above may be as much as $5,000,000 based on the following estimates. Description of Activity Architect and Engineering Construction Landscaping, Paving and On -site Utilities Land acquisition Fixtures, furniture, equipment and other personal property TOTAL Estimated cost $ 100,000.00 $2r5OOrOOO,OO $ 400,000.00 $1,200,000.00 $ 800,000.00 $S,0001000000 (e) Developer estimates, based on information available to it that the projected development costs and assessed value of the improved real property, inclusive of furniture, fixtures equipment, and other personal property, will be $5,000,000. The parties understand that the actual assessed valuation of the Developer's portion of the real property as determined by the Montana Department of Revenue may be greater or lesser than the estimates. (f) Developer has obtained or has available to it sufficient funding to perform and complete its obligations under this Agreement. (g) Developer has reviewed the Infrastructure Improvements which are the responsibility of the City described on Schedule 1 and the on site .improvements described in Schedule 2 and represents and acknowledges that the construction of such improvements are necessary to the development of the Project. 5 (h) Developer has requested that the City pay between $500,000 and. $600,000 of the costs of designing,acquiring and installing the Infrastructure Improvements. (i) Developer agrees that it has additional retail space in the Project Area and Developer agrees pursuant to the Redevelopment Plan not to unreasonably withhold property from sale for future development for uses that are not competitive with, and are compatible with, the Developer's use of the property. ARTICLE 3 Infrastructure Improvements Section 3.1. Se uence of Events. The City, after coordinating with the Developer, shall cause construction plans and specifications to be prepared for the Infrastructure Improvements and will enter into construction contracts for such improvements in accordance with the competitive bidding requirements of Montana law, and will supervise the construction and installation of the improvements in the same manner as other public improvements of the City. The City may at its option proceed with the design and/or construction of the Infrastructure Improvements utilizing City personnel. The City will complete design of the Infrastructure Improvements and commence the competitive bidding process including solicitation of bids, public notices and advertising upon execution of the Agreement, provided that the City is not prevented from proceeding by court order or delay occasioned by a referendum petition. After construction bids are opened, a final construction budget and time table for the Infrastructure Improvements will be prepared by the City and then be reviewed by and subject to the approval of the Developer. The construction budget will include line items for each of the items shown on Schedule 1 and shall be based on the actual bids received for each line item. Because of the approaching winter and need to complete as much construction as possible while weather permits, the parties anticipate that the City will accept bid(s) and be prepared to commence construction of the Infrastructure Improvements as soon as possible. The City shall award the Infrastructure Improvement bid(s) as soon as practicable after completion of the bidding procedure and require the successful bidder(s) to complete construction of the Infrastructure Improvements on or before May 15, 1992, when Tidyman's plans on opening its grocery store for business. Developer will commence construction of its on -site improvements listed on schedule 2 in the near future since a building permit has already been obtained from the City. The City will coordinate the design and construction of the Infrastructure Improvements with the Developer and will require its engineers and contractors to coordinate design and construction with the Developer, the engineer and contractors to ensure maximum efficiency to the City and Developer in the construction of the Infrastructure Improvements and the Project. Section 3.2. Limitations on Cit 's Commitment. The City shall use its tax increment revenues in an amount not to exceed $500,000 to pay for the costs of the Infrastructure Improvements. If the Economic Development Administration (EDA) Grant is obtained by the City, then the grant so received shall be applied first to reimburse the City up to $200,000 of the $500,000 in tax increment revenues used to fund the Infrastructure Improvements with the remainder, if any, utilized to pay for costs of Infrastructure Improvements exceeding $500,000 but in no event more than $600,000. The chart which follows gives examples of the extent of the City's commitment depending on the amount of the EDA grant: TOTAL LIABILITY OF CITY FOR INFRA- STRUCTURE IMPROVEMENTS $600,000.00 $550fOOO,OO $5001000s00 $500fOOO,OO $500f000e00 AMOUNT OF EDA GRANT $300,000.00 $250rOOO,OO $200,000.00 $100,000,00 $ .0. AMOUNT OF TAX INCREMENT REVENUES $300,000,00 $300,000.00 $300r000s00 $400,000.00 $500,000.00 Section 3.3. Deyelo, aver' s Commitment. The parties anticipate that the costs of the Infrastructure Improvements may exceed the City's limited financial commitment described in Section 3.2 above. Developer and the City shall agree on the extent of Developer's commitment to be responsible for Infrastructure Improvements at the time that the construction budget and time table are received and finalized. The cost of Infrastructure Improvements exceeding the City's financial commitment described in Section 3.2 above shall be satisfied in one or more of the following manners to be agreed upon by the parties: (a) Low priority improvements which are not absolutely essential listed as line items on schedule 1 shall be eliminated as work requirements to reduce overall costs. (b) Developer agreeing to complete specific line items in Schedule 1 at its own expense with a contractor of its choice. (c) Developer agreeing to deposit sufficient funds with. the City Finance Director to pay a certain amount of any shortfall to 7 cover the east of a specific Infrastructure Improvement listed on Schedule 1. Section 3.4 Developer'sDeveloperfs Right to Withdraw from Pro'e t. Both parties understand and agree that the parties, as a condition precedent to any further obligations of the Developer under this contract and prior to the City accepting any bids, must agree in writing on the following. (a) Detailed construction plans and specifications describing the work to be performed. (b) Construction budget based on actual bids received. (c) Time Table for construction. (d) Developer's obligations under Section 3.3 above. Developer shall have the right to withdraw from this Agreement and to terminate all obligations hereunder unless written agreement is reached on each of the above items not later than October 31, 1991s 3.5 Developer shall also have the right to withdraw from this Agreement and to terminate all obligations hereunder if the City is prohibited from either contributing its share of project costs pursuant to Section 3.2 above or proceeding further with the project because of court order, injunction or by declaration of invalidity or by referendum or initiative, or other lawful excuse. Article 4 Vacation and Exclusion of Public Rights of wa Section 4.1 Va ation of Second Avenue East North. The Developer's prelir site plan for the Project dated '. 11 require the closing, abandoning and vacating of the soot erly portion of Second Avenue North East, from Montana Street through the Project Property. The City acknowledges that Developer has petitioned the City pursuant to Section 7-14-4114, M.C.A., to discontinue the street. The City agrees that it will cause notice to be given as required by law and upon a determination that the closure is in the public interest, will order the street vacated on or before October 7, 1991. Section 4.2. Vacation of ..;Allev. The Developer's preliminary site plan also indicates that it will be necessary to close and vacate the southerly portion of the dedicated public alley in Block 24 of Kalispell original. Developer has submitted a petition for vacation signed by it. Developer shall conduct or perform its work so that it will not materially impede current ingress and egress to First Interstate Bankfs drive--thru facility. The City agrees that it will cause notice to be given as required by law and upon a determination that the closure is in the public interest, will order the alley vacated on or before October 7, 1991. Section 4.3. Dedication of Right -of -Way for First Avenue East. The City has determined that is in the public interest that First Avenue East North be extended to Center Street. The City will require the dedication, by the Developer, of a right- of-way through the Project Property of sufficient dimensions to construct street improvements to city standards for such urban streets. The First Avenue street improvements will consist of construction of the street, curb, gutter, sidewalk, landscape and boulevard improvements and are included in the schedule of Infrastructure Improvements in Schedule 1 and will be financed in accordance with Article 3 above. Should the City be unable for any reason to perform its obligations under this Agreement or should Developer exercise its right to terminate the contract under Section 3.4, then Developer shall be under no obligation to construct the street improvements necessary to extend the dedicated right of way to Center Street, Section 4.4 Ingress and_ _ Egress . for„ Pizza Hut. Pizza Hut is the owner of real property within the Project .area west of the Project Property. The Site Plans shall .include this property and shall depict ingress and egress to the Pizza Hut off of Main Street. Main to First Avenue East North access is an Infrastructure Improvement to be constructed by the City under Schedule 1. The access shall be constructed on a forty (40) foot in width easement given by the Developer in favor of the City. Pavement width on the access shall be at least twenty-six (26) feet. In the event Burlington Northern Railroad abandons the railroads tracks on property adjacent to the site, Developer agrees to grant an easement or to dedicate an additional twenty-- six (26) feet of right-of-way on the Southerly boundary of the easement herein referenced. ARTICLE 5 Construction of the Project Section 5.1 Site Plans and Construction Plans, Developer shall submit Site Plans to the City prior to obtaining any building permits. (A preliminary building permit has already been issued.) The Site Plans shall depict the entire Project Area and shall show the location of the Project, the Infrastructure Improvements and other items required by this Agreement to be shown therein. The Developer shall also prepare 9 detailed Construction Plans and specifications which shall provide for construction of the on site improvements listed on Schedule 2 and for construction of its grocery store in conformity with the Redevelopment Plan, the Site Plan, this Agreement, and all applicable state and local laws and regulations. City agrees to reimburse Developer for those engineering expenses and the cost of preparation of site plans and construction plans to the extent that these relate to the Infrastructure Improvements and to the extent of the City's financial commitment described at Section 3.2, The City shall approve the Construction Plans in writing if, in the reasonable discretion of the City the Construction Plans. (a) substantially conform to the previous plans and subsequent amendments approved by the City and conform to the terms and condition of this Agreement; (b) conform to the terms and conditions of the Redevelopment Plan; (c) conform to all applicable federal, state and local laws, ordinances, rules and regulations; (d) are adequate to provide for construction of the Project; (e) no Event of Default has occurred. No approval by the City of the Construction Plans shall relieve Developer of the obligation to comply with the terms of this Agreement, the terms of the Redevelopment Plan, applicable federal, state and local laws, ordinances■ rules and regulations, or to properly demolish the existing buildings or to construct the Project as provided in this Agreement subject to the Developer's right to withdraw. No approval by the City shall constitute a waiver of an Event of Default. Any disapproval of the Site Plans and Construction Plans shall set forth the reasons therefore, and shall be made within to days after the date of their receipt by the City. If the City rejects the Site Plans and Construction Plans, in whole or in part, Developer shall submit new or revised Site Plans or Construction Plans not later than 30 days after written notification to Developer of the rejection. The provisions of this Section relating to approval, rejection and resubmission of revised Site Plans and Construction Plans shall continue to apply until the Site Plans and Construction Plans have been approved by the City. If the City rejects the revised Site Plans or Construction Plans, then Developer shall have the right to withdraw from this agreement and to fully terminate all of its duties and obligations under this agreement. Section 5.2 Construction of the Project. (a) Subject to Unavoidable Delays, Developer and the City will construct the Project without encroachment onto any other property all in accordance with the Site Plan, the Construction Plans and the Time Table. The City will be responsible for the proper supervision of and completion of construction of the Infrastructure Improvements on Schedule 1 and the Developer will 10 be responsible for the supervision of and completion of the on - site improvements listed on Schedule 2. Neither party shall exercise any control over the other regarding their respective areas of work and division of responsibilities although the parties agree to coordinate their activities to assure maximum efficiency of the construction process, (b) All work with respect to the Project shall be in substantial conformity with the Construction Plans approved by the City. Developer shall promptly begin and diligently prosecute to completion all on -site improvements listed on Schedule 2. Developer shall make reports, in such detail and at such times as may reasonably be requested by the City, as to the actual progress of Developer with respect to construction of the on -site improvements listed on Schedule 2. (c) Neither the City's contractors nor the Developer will interfere with, or construct any improvements over, any public street or utility easement without the prior written approval of the City. The City acknowledges that it has already issued a building permit and given permission to the Developer to construct its grocery store over an existing storm sewer and water main which the City eventually intends to abandon. Should the Developer withdraw from this Agreement pursuant to section 3.4, or should the City be unable to perform its obligations under this Agreement, City agrees that the future cost of relocating and installing the existing storm sewer, sanitary sewer, and water line now located under the planned store site will be borne solely by the City and at no cost to Developer. All connections to public utility lines and facilities shall be subject to approval of the City and any private utility company involved. Developer at its own expense shall replace any public facilities or utilities damaged during the construction of the Project within the scope of the Developer's work, Any work by the City or its contractors that causes damage to public facilities or utilities will be repaired by the City at its own expense. Section 5.3 Certificate of Completion. (a) Promptly after completion of the on site improvements listed on Schedule 2 in accordance with this Agreement, Developer will provide the City with a certificate of substantial completion from Developer's architect, and the City will then furnish Developer with an appropriate Certificate of Completion as conclusive evidence of satisfaction and termination of the Developer's obligations under this Agreement. ( b ) If the City shall refuse or fail to provide a Certificate of Completion, the City shall, within to days after the Developer provides the architect's certificate referenced in 11 Section 5.3(a), provide Developer with a written statement specifying in what respects Developer has failed to complete the on -site improvements in accordance with this Agreement, or is otherwise in default, and what measures or acts will be necessary, in the opinion of the City, for Developer to obtain the Certificate of Completion. ARTICLE 6 Defense of claims,• Insurance- Develo er's Risk Section 6.1. Defense of Claims. Developer shall indemnify and hold harmless the City and its respective officers, employees and agents for any loss, damages and expenses (including attorneys' fees) in connection with any claims or proceedings arising from damages or injuries received or sustained by any person or property by reasons of any actions or omissions of Developer or its contractors, agents, officers of employees under this Agreement, other than claims or proceedings arising from any negligent or unlawful acts or omissions of the City or its contractors, agents, officers or employees. Promptly after receipt by the City of notice of the commencement of any action in respect of which indemnity may be sought against the Developer under this Section 6.1., the City will notify the Developer in writing within to days of the commencement thereof, and, subject to the provisions hereinafter stated, the Developer shall assume the defense of such action (including the employment of counsel, who shall be counsel satisfactory to the City and the payment of expenses) insofar as such action shall relate to any alleged liability in respect of which indemnity may be sought against the Developer. The City shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Developer unless the employment of such counsel has been specifically authorized in writing by the Developer. The Developer shall not be liable to indemnify any person for any settlement of any such action effected without its written consent. Section 6.2 Insurance. (a) Developer will provide the following insurance for the ]Project and will maintain such insurance at all times during the process of constructing the Project, and at the request of the City will furnish the City with copies of policies and proof of payment of premiums on the following insurance: (i) Builder's risk insurance, written on the so-called "Builder's Risk --Completed Value Basis," in an amount equal to 100% of the replacement costs of the Project 12 at the date of completion, with coverage on the so- called "all -risk," nonreport ing form of policy; Comprehensive general public liability insurance, including personal injury liability (with employee exclusion deleted) and automobile insurance, including owned, non -owned and hired automobiles, against liability for injuries to persons and/or property caused by the Developer or the Developers agents or contractors in the minimum amount for each occurrence and for each year of the policy in the amount of $1,000,000; and (iii) worker's compensation insurance in compliance with all statutory requirements. The policies of insurance required under clauses (i), (ii) and (iv) above shall be in a form and a content satisfactory to the City and shall be placed with financially sound and reputable insurers licensed to transact business in the State of Montana. The policies shall contain an agreement of the insurer to give not less than 30 days' advance written notice to the City in the event of cancellation of such policy or change affecting the coverage. (b) The provisions herein with respect to Developer's maintaining insurance of the Project shall terminate at such time as the Developer has received a Certificate of Completion under Section 5.3. (c) The City shall maintain corresponding insurance coverage for its portion of the project and will provide written proof of such .insurance to the Developer. Section 6.3 Developer understands and accepts certain risks associated with proceeding with the Project. The City shall act in good faith and shall use its best efforts to assure completion of the Infrastructure Improvements in accordance with this Agreement and ordinance No. 1168. In the event the City is unable to complete the Infrastructure Improvements in a timely manner as a result of legal challenge resulting in a court order preventing City participation in the Project or declaration of invalidity pursuant to Montana law by initiative or referendum, Developer shall have the right to withdraw from this Agreement pursuant to Section 3.5. 13 ARTICLE 7 Payment of Tars Developer shall pay when due all real estate taxes and installments of special assessments payable on the Project Property and any other property the Developer owns within Flathead County. Developer and the City recognize that the state of Fontana, Department of Revenue shall utilize calculator or segregated cost methods to determine the Assessed Valuation of the improved real property and the Developer shall not utilize an income approach to value to protest the Assessed Valuation of said property for a period of five (5) years from the date of this agreement. ARTICLE 8 Prohibitions Against Assicinment and Transfer Section 8.1. Transfer of Prol2erty and Assignment,, Except for purchase agreements Covering the Pizza Hut parcel, Developer has not made and will not make, or suffer to be made, any total or partial sale, assignment, Conveyance, lease, or other transfer of any interest in the Project or Project Property or any part thereof or any Contract or agreement to accomplish any transfer without the prior written approval of the City, which approval shall not be unreasonably withheld. The City shall be entitled to require as conditions to any such approval of a transfer of a substantial portion of the property occurring before Completion of the Project as follows: (i) the proposed transferee have the qualifications and financial responsibility, as reasonably determined by the City, necessary and adequate to fulfill the obligations undertaken in this Agreement by Developer, (ii) the proposed transferee, by recordable instrument satisfactory to the City shall, for itself and its successors and assigns, assume all of the obligations of Developer under this Agreement. No transfer of, or change with respect to, ownership in the Project Property or any part thereof, or any interest therein, however consummated or occurring and whether voluntary or involuntary, shall operate legally or practically, to deprive or limit the C.ity's rights or remedies or controls provided in or resulting from this Agreement that the City would have had had there been no such transfer or change. There shall be submitted to the City for review all legal documents relating to any transfer. In the absence of specific written agreement by the City to the contrary, no such transfer or approval by the City thereof shall be deemed to relieve Developer, or any other additional party bound in any way by this Agreement or otherwise with 14 respect to the construction of the Project, from any of its obligations with respect thereto. Section 8.2. Termination of Limitations on Transfer. All provisions contained in this Article 8 with respect to limitations on the ability of the Developer to transfer the Project Property or the Project, or any portion thereof, shall terminate at such time as a Certificate of completion has been issued by the City under Section 5.3 of this Agreement with respect to the Project. ARTICLE 9 Events of Def ault Section 9.1 Events of Default. The following shall be "Events of Default" under this Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement (unless the context otherwise provides), any one or more of the following events which occurs prior to the issuance of the Certificate of Completion by the City under Section 5.3 of this Agreement with respect to the Project and continues for more than 30 days after notice by the city to Developer or from Developer to the city, as the case may be, of such default (and the term "default" shall mean any event which would with the passage of time or giving of notice, or both, be an "Event of Default" hereunder): (a) Failure by either Developer or the city to properly and timely construct or reconstruct the Improvements as required under this Agreement. (b) Failure of Developer to furnish the site Plans or Construction Plans as required hereunder. (c) Failure by either party to comply with Section 3.4. (d) Failure by Developer to pay real estate taxes as required hereunder. (e) Failure by Developer or the City to observe or perform any other duty, covenant, condition, or obligation required by this Agreement. (f) If Developer or the City shall admit in writing its inability to pay its debts generally as they become due, or shall file a petition in bankruptcy, or shall make an assignment for the benefit of its creditors, or shall consent to the appointment of a receiver of itself or of the whole or any substantial part of the Redevelopment Party. 15 (g) If Developer or the City shall file a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws. (h) If Developer, on a petition in bankruptcy filed against it, be adjudicated a bankrupt, or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of the Developer, a receiver of all or substantially all of its property, or approve a petition seeking reorganization or arrangement under the federal bankruptcy laws, and such adjudication, order or decree shall not be vacated or set aside or stayed within 60 days from the date of entry thereof. (i) If Developer is in default under any Mortgage recorded against the Project Property and fails to cure any such default within the time period provided for in the Mortgage. Section 9.2. Remedies on Default. whenever any Event of Default referred to in section 9.1 occurs, the party not in default may take one or more of the following actions: (a) Suspend its performance under this Agreement until it receives satisfactory assurance from the other party that the defaulting party will cure its default and continue its performance under this Agreement. (b) withhold the Certificate of Completion. (c) Take whatever action at law or in equity which may appear necessary or desirable to the non -breaching party to enforce performance and observance of any obligation, agreement, or covenant of the party in default under this Agreement. Section 9.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to either party is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the City or Developer to exercise any remedy reserved to it, it shall not be necessary to give notice, other than such notice as may be required under this Agreement. Section 9.4. Waivers. All waivers by either party must be in writing to be enforceable. If any provision of this Agreement is breached by either party and thereafter waived by the other party, such waiver shall be limited to the particular breach so 16 waived and shall not be deemed to waive any other concurrent, previous or subsequent breach hereunder. Section 9.5. Arbitration. In the event that a dispute should arise under this Agreement, as a condition precedent to suit, the dispute shall be submitted to arbitration in the following manner: The party seeking arbitration shall submit to the other party a statement of the issue(s) to be arbitrated and shall designate such party's nominated arbitrator. The responding party shall respond with any additional or counter statement of the issue(s), to be arbitrated and shall designate the responding party's arbitrator, all within fourteen (14) days after receipt of the initial notice. The two arbitrators thus nominated shall proceed promptly to select a third arbitrator. The arbitrators shall, as promptly as the circumstances allow and within a time established by a majority vote of the arbitrators, conduct a hearing on the issues submitted to them, and shall render their decision in writing. Any decision as to procedure or substance made by a majority of the arbitration panel shall be binding. A decision by the majority of the arbitrators on any issue submitted shall be the decision of the arbitration panel as to that issue. The arbitrators have authority to award costs and attorney fees pursuant to Paragraph 9.6. In lieu of appointing three arbitrators in the manner set forth above, the parties may, by agreement, designate a single arbitrator. Except as provided herein, the arbitration proceedings shall be conducted in accordance with the rules of the American Arbitration Association and the statutes of the State of Montana pertaining to binding arbitration. Section 9.6 Attorney Fees. If by reason of any default on the part of either party it becomes necessary for the other party to employ an attorney to pursue or enforce its rights under this Agreement, the nonprevailing party shall pay to the prevailing party a reasonable attorneys fees and all costs and expenses incurred in enforcing its rights under this Agreement. ARTICLE 10 Additional Provisions Section 10.1. Conflict ofInterests. & the City Representatives Not Individually Liable. No member, official, employee, or consultant or employees or the consultants of the City shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official, consultant or the consultant's employees or employee participate in any decision relating to this Agreement which affects his or her personal interests or the interests of any corporation, partnership, or association in which he or she is directly or indirectly interested. No member, official, consultant or the 17 consultant's employees, or employee of the City shall be personally liable to Developer, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to Developer or successor or on any obligations under the terms of this Agreement. Section 10.2. Equal EmploymentQp,portunity. Developer, for itself and its successors and assigns, agrees that during the construction of the Infrastructure Improvements it will comply with any applicable affirmative action and non-discrimination laws or regulations. Section 10.3. Restrictions on Use. Developer agrees that it shall not discriminate upon the basis of race, color, creed, sex or national origin in the sale, lease or rental or in the use or occupancy of the Project Property or any improvements erected or to be erected thereon, or any party thereof. Section 10.4. Environmental Conditions and Remedia.tion of Contamination. Developer has disclosed to the City certain contamination of the soil of the Project Property by petroleum products released on the property in the past. Developer has also disclosed to the City the existence of a $300,000 escrowed remediation or "cleanup" fund maintained and controlled by the previous owner of the property, the Glacier Park Company, and the Developer. The City is also aware that the Montana Petroleum Tank Release Compensation Board recently ruled that the three former bulk oil storage sites located on the Project Property are eligible on a limited basis for reimbursement of remediation and cleanup costs. The parties agree to coordinate closely with the Glacier Park Company and the Montana Department of Health and Environmental services during the construction process and especially during excavation to insure full compliance with any federal or state laws regarding the remediation, cleanup and reporting of pollution, contamination of soil or hazardous substances. Section 10.5 . Titles of Articles and Sections . Any titles of the several parts, Articles, and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 10.6. Notices and Demands. Except as otherwise expressly provided in this Agreement, a notice, demand, or other communication under this Agreement by either party to the other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally; and m (a) in the case of the Developer, addressed to or delivered personally to Developer at East 17515 Appleway, Greenacres, Washington, 99016, Attention: Mike Davis. (b) in the case of the City, addressed or delivered personally to the City Manger, City of Kalispell, P.G. Box 1997, Kalispell, Montana 59903-1991, or at such other address with respect to either such party as that party may, from time to time, designate in writing and forward to the other as provided in this Section. Section 10.7. counterparts. This Agreement is executed in any number of counterparts, each of which shall constitute one and the same instrument. 10.8 Entire Agreement. All understandings and agreements previously existing between the parties, if any, are merged into this Agreement including all schedules and exhibits, which alone fully and completely expresses their agreement, and the same is entered into after full investigations, neither party relying upon any statement or representations made by the other not embodied herein. This Agreement may not be changed or terminated orally. This Agreement shall inure to the benefit of and be binding upon all successors, heirs or assigns. 10.9 Governing Law. This Agreement shall be deemed to have been made in, and construed in accordance with, the laws of the State of Montana. 10.10 TIME IS of THE ESSENCE of this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as the date first above written. "DEVELOPER" TIDYMAN'S, INC. By r "CITY" CITY of KALISPELL � r B -� Y city Manager By• ina ce Director Approved ap to form. 19 t �orney SCHEDULE 1 KALISPELL OFF -SITE DEVELOPMENT COST ESTIMATE Item Description Quan/Unit Price Amount SANITARY SEWER 1, Pipe--8" PVC SDR 35 20 LF 19 380 1.1. V at Pizza Hut 100 LF 19 11900 2, Manhole 1 EA 1,500 11500 2,1, Clean Out @ Pizza Hut 1 EA 800 800 3, Extra Depth of Manhole 2 VF 80 160 3.1, Connect to Existing @ Pizza Hut 1 EA 500 500 4, Excavation 10 CY 7 70 SUBTOTAL $ 51310 WATER SERVICE 1. Cut, Cap or Plug 6" Main 2 EA 500 11000 2, Pipe Bedding 50 CY 12 600 3. Pipe--12" PVC DR 18 425 LF 30 12, 75.0 4, Pipe-8" PVC DR 18 405 LF 26 10,530 5, Extended 8" Main @ 2nd Ave Pipe 8" PVC DR 18 325 LF 26 81450 6. 16.0 Extended 8" Main @ 1 s t to 2 nd-- --DELETED (Doubled in EDA Grant) 7. Pipe--6" Service 80 LF 24 11920 8. Pipe-2" Stub from 1st 40 LF 24 960 9. Pressure & Leak Testing Lump Sum 11900 10, Cleaning of Mains Lump sum 1,900 11. Disinfect & Bacteriological Test Lump Sum 11900 Item Description Quan/Unit Price Amount 12, Cleanup Lump Sum 750 13. Gate valve & Box-- 8" Hub x Hub 3 EA 650 11950 14, Gate Valve & Box- 12 " Hub x Hub 2 EA 11050 21100 15. Connect to Exist Main--8" 2 EA 400 800 16. Connect to Exist fain--12" 1 EA 500 500 16.1. Connect to 6" @ Pizza Hut 1 EA 400 400 17. New water Service-2" 1 EA 160 160 18. curb Stop & Box-2" 1 EA 250 250 19, New Fire Hydrants 2 EA 11750 31500 1911. 6" Hydrant Pipe 95 LF 24 2,280 SUBTOTAL $54,600 STORM SEWER 1. Pipe Bedding 50 CY 12 600 2. Pipe-18" RCP 195 LF 40 71800 3. Pipe-30" RCP 550 LF 50 271500 4, Pipe--36" RCP 750 LF 60 451000 5. Railroad crossing 40 LF 200 81000 6. Connect to Existing Storm Sewer 3 EA 450 11350 7, Excavation/Backfill 3.80o CY 7 26,600 8. Pavement Replacement 11250 SY 9 11,250 9. water Crossing--12" Lump Sum 41000 10. Cleanup Lump Sum 300 10.1, Storm Sewer Manholes 6 EA 21500 15,000 SUBTOTAL $147,400 Item Description STORM SEWER EXTENSIONS 1. Pipe Bedding 2,, Pipe 15" RCP 3,, Pipe 12' RCP 4. Connect to Existing 5,, Excavation/Backfill 6, Storm Drain Inlet 7, Storm Drain Manhole SUBTOTAL uan/Unit Price 50 CY 12 600 255 + 155 - 410 36 14,760 Deleted 30 - 0 - 1 EA 450 450 500 CY 9 41500 4 EA 11500 61000 2 EA 2, 500 5 t000 $31,310 Item. Description 1ST AVENUE EXTENSION 1. Excavating & Grading 2, Subbase-'"24" 3, Base Course--6" 4, Asphaltic Cement Surface-6" 5, Sidewalks-6' 6. Remove Parking Lot off Center Street 7. Curb & Gutter 8, Railroad Crossing 9. Signs, Lights & Signals 10. Landscape/Irr. at Boulevard SUBTOTAL PHASE I ACCESS ---MAIN TO 1ST 11 Excavating & Grading 2. Subbase-24 3, Base Course-6" 4. Asphaltic Cement Surface-6" 5, Sidewalks--6' 6, Curb & Gutter 6.1. Landscape/Irr. at Boulevard SUBTOTAL MONTANA 1ST AVENUE TO 3RD AVENUE 1. Sidewalk--6' uan/Unit Price Amount 31200 CY 4 12,800 31200 SY 3.40 10,800 21900 SY 1.70 41930 21900 SY 13 37,700 11610 LF 15 24,150 Lump Sum 51000 11100 LF 7.50 8,250 Lump Sum 50,000 Lump Sum 25,000 Lump Sum 10,925 -10._925 $189,635 11400 CY 4 51600 11400 SY 3.40 4,760 11200 SY 1.70 21040 11200 SY 13 15,600 600 LF 15 9,000 600 LF 7.5 41500 Lump Sum 21500 2 500 $44,000 525 LF 15 71875 2. Landscape/Irr. at Boulevard Lump Sum 31700 _31700 SUBTOTAL $11,575 SCHEDULE 2 TIDYMAN' S SITE DEVELOPMENT COST ESTIMATE Item Description QuanZUnit SANITARY SEWER EXTENSION 1, Pipe Bending 15 CY 2. Excavation/Backfill 735 CY 3, Pipe-8" PVC SDR 35 650 LF 4. Pipe--4" PVC SDR 35 50 LF 5 . Test for Deflection & Leaks Lump Sum 6, Cleanup Lump Sum 7, Manhole 2 EA 8. Extra Depth of Manhole 4 VF 9. Connect to Existing Sewer 1 EA 10, Service Connection 1 EA SUBTOTAL wATERMAIN EXTENSION 1. Pipe--8" PVC SDR 18 2, Pipe-2" Service 3. Pressure & Leak Testing 4. Cleaning of Mains 5, Disinfection 6. Connect to Existing Main 8" SUBTOTAL Price 12 7 19 17 11500 80 Amount $ 180 51145 12,350 850 400 400 31000 320 75 75 30 30 $22,750 185 LF 26 40 LF + 60 = 100 24 Lump Sum Lump Sum Lump Sum 1 EA 400 41810 21400 200 200 200 400 $ 81210 Schedule 3 LEGAL DESCRIPTION FOR TIDYMAN'S, KALISPELL MARKET PLACE A tract of landf situated, lying and being in the East half of the Southeast quarter of Section 7 and in the Southwest quarter of the Southwest quarter of Section 8, Township 28 North, Range 21 west, P.M.M., Flathead. county, Montana, and more particularly described as follows to wit: commencing at the Southwest corner of Black 25 of Kalispell origina1 (records of Flathead county, Montana), thence S 13 4 9 ' 57 "E along the Easterly Right -of -Way of Main Street (U.S, Highway 93), a distance of 52.50 feet to a true paint of beginning of the tract of land herein described: Thence N7 6 ° 10 ' 16 "E , a distance of 299,95 f eet ; thence N13049'38"W, a distance of 52.50 feet to the Southeast corner of Black 25; thence N76010'16"E, a distance of 80.00 feet; t N13hence o49'38"w, a distance of 100.03 feet along the Easterly Right - of -Way of First Avenue East North; thence N76o10'22"E, a distance of 160.01 feet; thence N13049' 35"w, a distance of 200.03 feet along the Easterly Right -of --way of First Alley East to a point on the Southerly Right--of-way of Montana Street East; thence along said Right--of-way N76010' 33"E, a distance of 506.03 feet to the Northeast corner of Block 23; thence S13049'27"E, a distance of 600.02 feet along the westerly Right--of-way of Third Avenue East North to a point on the centerline of a 25 foot wide Burlington Northern Railroad easement; thence along said centerline S76 10'16"w, a distance of 198.30 feet to the P.C. of a 1,860,00 foot radius curve, concave Northwesterly, having a central angle of 14 33'50"; thence along an arc length of 472.79 feet; thence leaving said centerline iS13o4� '38"E, a distance of 69,76 feet to a found iron pin; thence S76 10' 16 "w, a distance of 379.93 feet to a found iron pin on the East Right -of -Way of U.S. Highway No. 93; thence along said Right -of --way N13049"57"w, a distance of 257.50 feet to the true point of beginning. Subject to and together with all appurtenant easements of record.