Resolution 5396 - Use of Old School TIF Funds for Private Development - City & DCP Kalispell, LLCReturn to:
Kalispell City Clerk
PO Box 1997
Kalispell, MT 59903
RESOLUTION NO.5396
A RESOLUTION APPROVING THE USE OF TAX INCREMENT FINANCING FUNDS
FROM THE OLD SCHOOL STATION TECHNOLOGY TAX INCREMENT FINANCING
DISTRICT PURSUANT TO THE TERMS OF A SPECIFIC CONTRACT FOR PRIVATE
DEVELOPMENT BETWEEN THE CITY OF KALISPELL AND DCP KALISPELL, LLC.
WHEREAS, the City of Kalispell passed Ordinance No. 1558 on the 21" day of November 2005 and
thereby created the Old School Station Technology Tax Increment Financing District
pursuant to MCA Sections 7-15-4282 through 7-15-4299, including MCA Section 7-15-
4295, as amended; and
WHEREAS, by creating the Old School Station Technology Tax Increment Financing District the
City Council wished to encourage the location and retention of technology development
projects in the State of Montana and the City; and
WHEREAS, DCP Kalispell, LLC has negotiated the purchase of Lot 2 of Old School Station for the
purpose of constructing a facility for a long term lease to FedEx, which Lot 2 is in the
Old School Station Technology TIF District and the planned use of the facility to be
built there complies with the statutorily acceptable uses in a technology TIF district; and
WHEREAS, an integral component of the financial package for DCP Kalispell, LLC that makes this
project possible is the contract for private development being proposed between the
City of Kalispell and DCP Kalispell, LLC in which available tax increment created by
Lot 2 of Old School Station will be used to pay the Special Improvement District
assessments that DCP Kalispell, LLC, as owner of Lot 2, is obligated to pay; and
WHEREAS, the proposed project meets the goals of the Old School Station Technology Tax
Increment Financing District in that the investment being made into the district property
will substantially increase the taxable value of the property and retain jobs.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF KALISPELL
AS FOLLOWS:
SECTION I. That the Kalispell City Manager is hereby authorized to execute the Contract for
Private Development between the City of Kalispell and DCP Kalispell, LLC,
attached hereto and incorporated herein fully by this reference.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF THE
CITY OF KALISPELL THIS 5TH DAY OF OCTOBER, 2009.
ATTEST:
Theresa White
City Clerk
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Return To: City of Kalispell
201 1 st Ave. East
Kalispell, MT 59901
CONTRACT FOR PRIVATE DEVELOPMENT
between
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CITY OF KALISPELL, MONTANA
1
and
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DCP KALISPELL, LLC
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PARTIES AND RECITALS .....
TABLE OF CONTENTS
.........................................................
ARTICLE I
Definitions; Exhibits; Interpretation
Page
.............. I
Section1.1.
Definitions...........................................................................................................................2
Section1.2.
Exhibits...............................................................................................................................4
ARTICLE II
Representations And Warranties
Section 2.1.
Representations by the City.................................................................................................5
Section 2.2.
Representations and Warranties by the Developer..............................................................5
ARTICLE III
Financing of Minimum Improvements
Section 3.1.
Status of the Development Property ....................................................................................
6
Section 3.2.
Environmental Conditions...................................................................................................6
Section 3.3.
Calculation and Application of Increment..........................................................................6
Section3.4.
TIF Note..............................................................................................................................8
Section 3.5.
Payment of Administrative Costs........................................................................................9
Section3.6.
Records................................................................................................................................9
ARTICLE IV
Construction of Minimum Improvements
Section 4.1.
Construction of Minimum Improvements...........................................................................9
Section 4.2.
Criteria for Minimum Improvements..................................................................................9
Section 4.3
Construction Plans..............................................................................................................9
Section 4.4.
Commencement and Completion of Construction............................................................10
Section 4.5.
Certificate of Completion..................................................................................................10
Section 4.6.
Restrictions on Use...........................................................................................................
10
it
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Page
ARTICLE V
Insurance
Section5.1. Insurance........................................................................................................................... I I
Section 5.2. Notification: Repair. Reconstruction and Restoration.....................................................12
Section5.3. Subordination....................................................................................................................12
ARTICLE VI
Financing
Section6.1. Generally...........................................................................................................................12
Section 6.2. Limitation Upon Encumbrance of Development Property................................................12)
ARTICLE VII
Prohibitions Against Assignment and Transfer; Indemnification
Section 7.1. Representation as to Development... ................................................................................. 13
Section 7.2. Prohibition Against Developer's Transfer of Property and Assignment of Agreement .... 1 3)
Section 7.3. Release and Indemnification Covenants...........................................................................14
Section 7.4 Right of Holder to Cure Defaults......................................................................................15
ARTICLE V1II
Events of Default
Section 8.l . Events of Default Defined.................................................................................................15
Section8.2. Remedies of Default.......................................................................................................... 16
Section8.3. No Remedy Exclusive....................................................................................................... 16
Section 8.4. No Additional Waiver Implied by One Waiver................................................................16
Section8.5. City's Attorney Fees.........................................................................................................16
ARTICLE IX
Additional Provisions
Section 9.1.
Conflict of Interests; Representatives Not Individually Liable; Release ..........................17
Section9.2
Binding Effect...................................................................................................................17
Section9.3
Severability.......................................................................................................................
17
Section 9.4
Equal Employment Opportunity.......................................................................................
17
Section 9.5
Covenant to Pay Property Taxes and Assessments...........................................................17
Section 9.6
Provisions Not Merged With Deed............
17
Section 9.7.
Titles of Articles and Sections..........................................................................................17
Section 9.8.
Notices and Demands........................................................................................................17
Section9.9.
Counterparts......................................................................................................................
18
Section9.10.
Applicable Law.................................................................................................................18
Section9.11.
Recording..........................................................................................................................18
Section9.12.
Gender. Etc........................................................................................................................18
Section9.13.
Entire Agreement..............................................................................................................18
ACKNOWLEDGEMENT .................
.................................19
EXHIBIT A
EXHIBIT B
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. Legal Description of the Property
..............Certificate of Completion
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CONTRACT FOR PRIVATE DEVELOPMENT
THIS CONTRACT FOR PRIVATE DEVELOPMENT (this "Agreement") is made as of the
day of Or ( 200q, by and between the CITY OF KALISPELL, MONTANA, a
Montana municipal corporation (the "City"), and DCP KALISPELL. LLC, a Montana limited liability
company (the "Developer").
RECITALS
WHEREAS, pursuant to Montana Code Annotated, Title 7, Chapter 12, Parts 41 and 42, as
amended (the "SID Act"), the City is authorized to create and establish in the City a special improvement
district for the purpose of financing costs of certain public improvements of special benefit to the
properties within the special improvement district and paying costs incidental thereto; and
WHEREAS, pursuant to Resolution No. 5074, adopted by the City Council of the City on
November 7, 2005, the City created Special Improvement District No. 344 ("District 344") for the
purpose of making certain public improvements (herein referred to as the "SID Improvements") for the
special benefit of District 344; and
WHEREAS, pursuant to Sections 7-12-4162 and 7-12-4163 of the SID Act, the City Council of
the City approved a resolution authorizing the levy of Assessments (as defined herein) against applicable
portions of the Development Property (as defined herein) for the SID Improvements; and
WHEREAS, pursuant to Resolution No. 5123 (the "Bond Resolution") the City financed the costs
associated with the SID Improvements with the proceeds of the City's Special Improvement District No.
344 Bonds, in the original aggregate principal amount of $4,520,000, dated June 15, 2006 (the "Bonds");
and
WHEREAS, pursuant to Montana Code Annotated, Title 7, Chapter 15, Part 42, as amended (the
"TIF Act"), the City is authorized to create and establish in the City a technology tax increment financing
district for the purpose of assisting in financing necessary technology infrastructure to encourage the
location and retention of technology development projects in the City; and
WHEREAS, pursuant to Ordinance No. 1558, adopted by the City Council of the City on
November 7, 2005 (the "TIF Ordinance"), the City established a technology tax increment financing
district (the "District") at Old School Station (located within the District) and set January 1, 2005 as the
base taxable year for the District; and
WHEREAS, pursuant to Section 7-15-4288 of the TIF Act, eligible costs to be paid by the City
with tax increment derived from the District include public improvements authorized to be made pursuant
to the SID Act; and
WHEREAS, pursuant to Section 7-15-4290 of the TIF Act, the City may pledge tax increment
derived from the District to the payment of special assessment bonds (such as the Bonds) issued to pay
District costs described in Sections 7-15-4288 and 7-15-4289 of the TIF Act; and
WHEREAS, Assessments and Available Tax Increment (as defined herein) are pledged by the
City as security for the Bonds, along with other available security as provided in the Bond Resolution;
and
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WHEREAS, the Developer proposes to develop or facilitate development of property, in the
District described herein as the Development Property; and
WHEREAS, this Agreement, among other things, provides a mechanism for the application of
Available Tax Increment derived fi-om the District in order to defray costs of the Minimum Improvements
(as defined herein) that serve portions of the Development Property; and
WHEREAS, the City has determined that the application of Available Tax Increment
contemplated herein and the fulfillment generally of this Agreement, are in the vital and .best interests of
the City and the health, safety, morals, and welfare of its residents, and in accord with the public purposes
and provisions of applicable State of Montana laws and local laws and requirements.
NOW, THEREFORE, in consideration of the mutual obligations contained in this Agreement, the
parties agree as follows:
ARTICLE I
Definitions; Exhibits; Interpretation
Section l .l . Definitions. The following terms shall have the meanings given in this Agreement,
unless a different meaning clearly appears from the context:
"Administrative Expenses" means expenses incurred by the City with respect to management of
the District or the administration of the Project or this Agreement.
"Affiliate" means with respect to the Developer (a) any corporation, partnership, limited liability
company or other business entity or person controlling, controlled by or under common control with the
Developer, and (b) any successor to such party by merger, acquisition, reorganization or similar
transaction involving all or substantially all of the assets of such party (or such Affiliate). For the purpose
hereof the words "controlling", "controlled by" and '*under common control with" shall mean, with
respect to any corporation, partnership, limited liability company or other business entity, the ownership
of fifty percent (50%) or more of the voting interests in such entity possession, directly or indirectly, of
the power to direct or cause the direction of management policies of such entity, whether ownership of
voting securities or by contract or otherwise.
"Agreement" means this Contract for Private Development, as the same may be from time to time
modified, amended, or supplemented.
"Annual Notice" has the meaning described in Section 3.3(d) of this Agreement.
"Assessments" means the levy of special assessments by the City on the Development Property,
to be used for payment of the SID Improvements undertaken by the City.
"Available Tax Increment" means the amount of tax increment derived from the Development
Property that is then on deposit with the City in the operating account of the District (after payments
required by Section 3.03(c)(ii) of the Bond Resolution). Available Tax Increment consists of both Initial
Increment and Supplemental Increment.
"Bond Payment Date" has the meaning described in Section 3.3(f) of this Agreement.
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"Bond Resolution" means Resolution No. 5123, approved by the City Council of the City on June
19, 2006, relating to the Bonds, as the same may be from time to time modified, amended, or
supplemented.
"Bonds" means the City's Special Improvement District No. 344 Bonds, in the original aggregate
principal amount of $4,520,000, dated June 15, 2006.
"Certificate of Completion" means the certification or certifications provided to the Developer,
substantially in the form attached hereto as Exhibit B.
"City" means the City of Kalispell, Montana.
"City Representative" means the City Manager or other City official or staff so designated in
writing by the City Manager.
"Construction Plans" means the plans, specifications, drawings and related documents on the
construction work to be performed by the Developer on the Development Property, including the
Minimum Improvements and the related site improvements, which (a) shall be as detailed as the plans,
specifications, drawings and related documents which are submitted to the appropriate building officials
of the City, and (b) shall include at least the following: (1) site plan, (2) foundation plan; (3) floor plan
for each floor; (4) cross sections of each (length and width); (5) elevations (all sides); (6) landscape plan;
and (7) such other plans or supplements to the foregoing plans as the City may reasonably request to
allow it to ascertain the nature and quality of the proposed construction work.
"County" means the County of Flathead, Montana, its successors and assigns.
"Determination Date" has the meaning described in Section 3.3(d) of this Agreement.
"Developer" means DCP KALISPELL, a Montana Limited Liability Company, or its permitted
successors and assigns.
"Development Property" means the real property described in Exhibit A of this Agreement.
"District" means the Technology Tax Increment Financing District, established by the City
Council of the City pursuant to the TIF Ordinance.
"District 344" means Special Improvement District Number 344 of the City.
"Event of Default" means an action by the Developer listed in Article VIII of this Agreement.
"Holder" means the owner of a Mortgage.
"Increment" has the meaning described in Section 3.3 hereof.
"Master Development Property" means the real property which is located entirely within District
344.
"Maturity Date" means the earlier of (i) the date that the Available Tax Increment has been paid
in full or terminated, whichever is earlier, or (ii) the date on which the Bonds have been repaid or
defeased.
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"Minimum Improvements" means the construction on the Development Property of Lot 2 of Old
School Station, according to the map or plat thereof on file and of record in the Office of Clerk and
Recorder of Flathead County, Montana, including related site improvements and parking. all in
compliance with the requirements pertaining thereto as set forth in this Agreement.
"Mortgage" means any mortgage made by the Developer which is secured, in whole or in part,
with the Development Property and which is a permitted encumbrance pursuant to the provisions of
Article VII of this Agreement.
"Payment Date" has the meaning described in Section 3.3(d) hereof.
"Project" means the Development Property as improved by the Minimum Improvements.
"Qualified Costs" means the costs of the Project eligible to be paid to the Developer by the City
out of Available Tax Increment, as allowed by the TIF Act and pursuant to Section 3.3 of this Agreement.
"SID Act" means Montana Code Annotated, Title 7, Chapter 12, Parts 41 and 42, as amended.
"SID Improvements" means those certain public infrastructure improvements constructed by the
City and as detailed by Section 3.2(b) of the Master Agreement.
"State" means the State of Montana.
"TIF Act" means Montana Code Annotated, Title 7, Chapter 15, Part 42, as amended.
"TIF Note" means the Tax Increment Financing Note, issued by the City to the Developer to
memorialize payment of the Supplemental Increment to the Developer, as provided by Section 3.3 hereof.
"TIF Ordinance" means Ordinance No. 1558, adopted by the City Council on November 7, 2005.
"Transfer" has the meaning set forth in Section 7.2(a) hereof.
"Transfer Date" has the meaning set forth in Section 3.3(c) hereof.
"Unavoidable Delays" means delays beyond the reasonable control of the parry seeking to be
excused as a result thereof which are the direct result of strikes, other labor troubles, prolonged adverse
weather or acts of God, fire or other casualty to the Minimum Improvements, litigation commenced by
third parties which, by injunction or other similar judicial action, directly results in delays, or acts of any
federal, State or local governmental unit (other than the City in exercising its rights under this Agreement)
which directly result in delays. Unavoidable Delays shall not include delays (except those attributable to
government -imposed moratoria) in the obtaining of permits or governmental approvals necessary to
enable construction of the Minimum Improvements by the dates such construction is required under
Section 4.4 of this Agreement.
Section 1.2. Exhibits. The following exhibits are attached to and by reference made a part of this
Agreement:
Exhibit A Legal Description of Development Property
Exhibit B Form of Certificate of Completion
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ARTICLE II
Representations and Warranties
Section 2.1. Representations by the City. The City makes the following representations and
warranties as the basis for its covenants herein:
(a) The City, is a municipal corporation duly organized and existing under the laws of the
State. Under the provisions of the SID Act and the TIF Act, the City has the power to enter into this
Agreement and carry out its obligations hereunder.
(b) The City proposes to apply the Available Tax Increment described in this Agreement for
the purposes of financing the Minimum Improvements, increasing the tax base, and creating or retaining
employment opportunities on the Development Property-
(c) There is no litigation pending or, to the actual knowledge of the City, threatened against
the City questioning the validity or enforceability of this Agreement or the due execution and delivery of
this Agreement by the City.
(d) To the actual knowledge of the undersigned officials of the City, the execution and
delivery of this Agreement does not materially violate any agreement or any court order or judgment in
any litigation to which the City is a party or by which it is bound.
Section 2.2. Representations and Warranties by the Developer. The Developer makes the
following representations and warranties as the basis for its covenants herein:
(a) The Developer is (i) a limited liability company, duly organized and in good standing
under the laws of the State, (ii) not in violation of any provisions of its articles of organization or
membership agreement, and (iii) duly authorized to transact business within the State.
(b) The Developer has the power to enter into this Agreement and has duly authorized the
execution, delivery and performance of this Agreement by proper action of its members.
(c) The Developer has received no notice or communication from any local, State or federal
official that the activities of the Developer may be or will be in violation of any environmental law or
regulation (other than those notices or communications of which the City is aware; if any). The
Developer is not aware of any facts the existence of which would cause it to be in violation of or give any
person a valid claim under any local, State or federal environmental law, regulation or review procedure.
(d) Neither the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor- the fulfillment of or compliance with the terms and conditions of
this Agreement is prevented, limited by or conflicts with or results in a breach of; the terms, conditions or
provisions of any corporate restriction or any evidences of indebtedness, agreement or instrument of
whatever nature to which the Developer is now a party or by which it is bound, or constitutes a default
under any of the foregoing, which default or breach might prevent the Developer from performing its
obligations under this Agreement.
(e) The Developer shall promptly advise the City in writing of all litigation or claims
affecting any part of the Development Property owned by the Developer and all written complaints and
charges made by any governmental authority materially affecting any part of the Development Property
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owned by the Developer or materially affecting the Developer or its business which may delay or require
changes in construction of the improvements thereon.
(f) The Developer will secure adequate financing for construction of the Minimum
Improvements and will provide adequate evidence to the City of said financing for the construction of the
Minimum Improvements.
(g) The Developer will construct, operate and maintain the Minimum Improvements in
accordance with the terms of this Agreement and all local, State and federal laws and regulations
including, but not limited to, environmental, zoning, building code and public health laws and regulations.
(h) The proposed development of the Minimum Improvements would not occur but for the
tax increment financing assistance being provided hereunder.
(i) The Developer will construct the Minimum Improvements as provided herein in
accordance with all local, State and federal energy -conservation laws and regulations.
0) The Developer will obtain, in a timely manner, all required permits, licenses and
approvals, and will meet, in a timely manner, all requirements of all applicable local, State and federal
laws and regulations which must be obtained or met before the Minimum Improvements may be lawfully
constructed.
ARTICLE III
Financing of Minimum Improvements; Available Tax Increment
Section 3.1. Status of the Development Property. The Developer owns fee title to the
Development Property. The City has no obligation to acquire the Development Property.
Section 3.2. Environmental Conditions. (a) The Developer acknowledges that the City makes
no representations or warranties as to the condition of the soils on the Development Property or the fitness
of the Development Property for construction of the Minimum Improvements or any other purpose for
which the Developer may make use of such Development Property, and that the assistance provided to the
Developer under this Agreement neither implies any responsibility by the City for any contamination of
the Development Property or poor soil conditions nor imposes any obligation on the City to participate in
any cleanup of the Development Property or correction of any soil problems.
(b) Without limiting its obligations under this Agreement, the Developer further agrees that it
will indemnify, defend, and hold harmless the City and its governing body members, officers, and
employees from any claims or actions arising out of the presence, if any, of hazardous wastes or
pollutants existing on or in the Development Property, unless and to the extent that such hazardous wastes
or pollutants are present as a result of the actions or omissions of the indemnitees. Nothing in this Section
shall be construed to limit or affect any limitations on liability of the City under any State or federal law.
Section 3.3. Calculation and Application of Increment. (a) Increment Generally. Tine
Development Property is currently encumbered with Assessments for the SID Improvements. The parties
have determined that, in order to assist development of the Minimum Improvements, the City will
annually apply One Hundred percent (100%) of the Available Tax Increment to pay a portion of the
Assessments for the SID Improvements levied against the Development Property, all as described in more
detail in this Section.
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(b) Assessments. The Assessments shall constitute a lien upon and against the Development
Property, which lien may be extinguished only by payment of the Assessments with all penalties, costs
and interest as provided in Section 7-12-4191 of the SID Act. No tax deed issued with respect to any
portion of the Development Property shall operate as payment of any, installment of the Assessments
thereon which is payable after the execution of such deed, and any tax deed so issued shall convey title
subject only to the lien of said future installments, as provided in Montana Code Annotated, Section 15-
18-214.
(c) Application of Increment. Pursuant to the terms of this Section, the City shall apply (after
the payments required by Section 3.03(c)(ii) of the Bond Resolution), on an annual basis commencing in
the first tax -payable year after a Certificate of Completion is issued by the City for the Minimum
Improvements, the Increment to credit against the Assessments due for the Development Property prior to
the next January 1 and July 1 (each a "Payment Date"). On or before September 30 of each year (each a
"Determination Date"), the City Finance Director shall calculate (a) the amount of Assessments then due
that are allocable to debt service payments on the Bonds pursuant to the Bond Resolution for the next two
Payment Dates after each Determination Date, (b) the amount of Available Tax Increment derived from
the Development Property, and (c) the amount of Increment that is available for credit against the
Assessments due on the next two Payment Dates after each Determination Date. On or before October
30 of each year (each a "Transfer Date"), commencing October 30, 2010, in accordance with this
Agreement, the City Finance Director shall transfer- from the operating account for the District to the Debt
Service Fund established under the Bond Resolution, the Increment for Assessments due on the next two
Payment Dates after each Transfer Date.
On or before each Transfer Date, the City will send the Developer a written notice (tile "Annual
Notice") specifying the Increment amounts to be paid by the City to credit Assessments due for the
Development Property on the next two Payment Dates and the balance of the Assessments to be paid by
the Developer. Notwithstanding such Annual Notice, the Developer or its successors or assigns remain
obligated to pay the full installment of Assessments due on any Payment Date unless and until the
Developer or its successors or assigns receive the Annual Notice stating the portion of the Assessments
paid by the City out of Increment under this Section. As a part of the Annual Notice, the City will specify
the amount of Increment, if any, to be paid by the City to the Developer under the terms of the TIF Note.
The Developer or its authorized representatives shall have the right to inspect the records of the City for
the purpose of verifying that the Annual Notice is accurate, and may make copies thereof at the
Developer's expense.
(d) Limitations. Increment derived from the Development Property and applied toward
Assessments in any calendar year will not exceed the aggregate installment of Assessments against the
entire Development Property due in that calendar year. The City's obligation under this Section is
payable solely from and to the extent of Available Tax Increment, and nothing herein shall be construed
to obligate the City to make payments from any other funds. The City makes no warranties or
representations as to the amount of Available Tax Increment, or that amounts payable under this Section
will be sufficient to pay all or any portion of the Assessments against any portion of the Development
Property. The Developer acknowledges that the Increment is subject to calculation by the County and
changes in State law. Any estimates of Increment prepared by the City, or the City's financial advisors,
consultants, agents, employees, or officers in connection with the District or this Agreement are for the
sole benefit of the City, and are not intended as representations on which the Developer or any third party
may rely.
(e) Mandatory Redemption of Bonds. Pursuant to Section 7-12-4206(1) of the SID Act and
Section 2.05(a) of the Bond Resolution, if on any January 1 or July l (each being a "Bond Payment
Date") there will be an excess of funds in the District Fund (as defined in the Bond Resolution) due to
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prepayment of Assessments. the City Finance Director shall call for redemption on that Bond Payment
Date outstanding Bonds, or portions thereof, in an amount which, together with interest thereon to the
Bond Payment Date, will equal the amount of such excess funds on deposit in the District Fund on that
Bond Payment Date.
Section 3.4. TIF Note. (a) GeWMMII. To the extent that the Developer makes the required
timely SID payments for which Available Tax Increment is not immediately available for application
against the SID obligation, but which shall become available at a future date (as is anticipated in the first
two years of this Agreement), the City will issue a TIF Note to the Developer. The Developer's
consideration in exchange for the City's issuance of the TIF Note shall be the timely payment of the SID
obligation as noticed in 33(c).
(b) Conditions Precedent. The TIF Note will be issued Nvithin 30 days after satisfaction of
the following conditions precedent:
0) The Developer has submitted and the City has approved all information
regarding the Project that is required by this Agreement;
(ii) there is no uncured Event of Default under this Agreement;
(iii) the Developer has received a Certificate of Completion for the Minimum
Improvements in accordance with Section 4.5 of this Agreement.
(iv) the Developer has made all SID payments due.
(c) No Representations or Warranties. The Developer understands and acknowledges that the
City makes no representations or warranties regarding the amount of Increment, including but not limited to
the representation that the Increment will be sufficient to pay all or any of the amounts payable on the TIF
Note. The Developer acknowledges that the Increment is subject to calculation by the County and changes in
State law and that some or all of the TIF Note may not be paid prior to the Maturity Date. Any estimates of
Increment prepared by the City, or the City's financial advisors, consultants, agents, employees, or officers in
connection with the District or this Agreement are for the sole benefit of the City, and are not intended as
representations on which the Developer- or any purchaser of a TIF Note may rely. The Developer further
understands and acknowledges that it shall have no claim against any funds of the City in the event that the
Increment is insufficient to repay the TIF Note.
(d) Assigmnaew. The Developer understands and acknowledges that the TIF Note may not be
assigned by the holder thereof, except (i) as a part of a pledge to the holder of a Mortgage, and (ii) upon
receipt by the City of an investment letter from such assignee in a form reasonably acceptable to the City.
(e) Linritations. The Developer understands and acknowledges that the issuance of the TIF
Note and any payment of Increment results solely from this Agreement and the Developer's construction of
the Minimum hnprovements associated with the Development Property. Nothing herein shall be construed
to obligate the City to make payments frorn any other funds. Any subsequent development associated with
the Development Property shall be stand-alone projects subject to a new contract for private development,
note and other associated or required agreements or documents in the event the Developer should request
financial assistance for such further development from the City. The Developer understands and
acknowledges that if the SID payments made by Developer exceed the Available Tax Increment, the
Developer will only be reimbursed in the amount of the Available Tax Increment.
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Section 3.5. Pavment of Administrative Costs. The Developer shall pay to the City all pre -
approved out of pocket costs incurred by the City (including without limitation attorney and fiscal
consultant fees) in the negotiation and preparation of this Agreement and other documents and
agreements in connection herewith (collectively, the "Administrative Costs"). Administrative Costs shall
be evidenced by invoices, statements or other reasonable written evidence of the costs incurred by the
City. The Developer shall pay Administrative Costs from time to time within thirty (30) days after
receipt of written notice thereof from the City.
Section 3.6. Records. The City and its representatives shall have the right at all reasonable times
after reasonable notice to inspect, examine all books and records of the Developer relating to the Project.
Such records shall be kept and maintained by the Developer until the Maturity Date. The Developer shall
also use its best efforts to cause its contractor or contractors, all sub -contractors and their agents and
lenders to make their books and records relating to the Project available to the City, upon reasonable
notice, for inspection, examination and audit.
ARTICLE IV
Construction of Minimum Improvements
Section 4.1. Construction of Minimum Improvements. The Developer agrees that it will
construct the Minimum Improvements on the Development Property in substantial accordance with this
Agreement and the approved Construction Plans and, at all times prior to the Maturity Date and during
which the Minimum Improvements are owned by the Developer, will operate and maintain, preserve and
keep the Minimum Improvements or cause such improvements to be maintained, preserved and kept with
the appurtenances and every part and parcel thereof, in good repair and condition. The City shall not have
an obligation to operate or maintain the Minimum Improvements.
Section 4.2. Criteria for Minimum Improvements. The Minimum Improvements must be used
for the development of technology based businesses and projects that are eligible to be located within the
District under the terms of the TIF Act. No retail use is permitted except de minimis amounts directly
related to the primary use.
Section 43. Construction Plans. (a) Generally. Before commencing construction of the
Minimum Improvements, the Developer shall submit the Construction Plans to the City. The City will
approve the Construction Plans in writing if. (i) the Construction Plans conform to the terms and
conditions of this Agreement; (ii) the Construction Plans conform to all applicable federal, State and local
laws, ordinances, rules and regulations; (iii) the Construction Plans are adequate to provide for
construction of the Minimum Improvements; (iv) the Construction Plans do not provide for expenditures
in excess of the funds available to the Developer from all sources for construction of the Minimum
Improvements; and (v) no Event of Default has occurred under this Agreement.
City approval may be based upon a review of the Construction Plans by the City's building
officials and the Public Works Director. No approval by the City shall relieve the Developer of the
obligation to comply with the terms of this Agreement, applicable federal, State and local laws,
ordinances, rules and regulations, or to construct the Minimum Improvements in accordance therewith.
No approval by the City shall constitute a waiver of an Event of Default hereunder. If approval of the
Construction Plans is requested by the Developer in writing at the time of submission, such Construction
Plans shall be deemed approved unless rejected in writing by the City, in whole or in pats. Such
rejections shall set forth in detail the reasons therefor, and shall be made within twenty (20) days after the
date of receipt of the Construction Plans by the City. If the City rejects the Construction Plans in whole
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or in part, the Developer shall submit new or corrected Construction Plans within twenty (20) days after
its receipt of such written rejection from the City to the Developer. The provisions of this Section relating
to approval, rejection and resubmission of corrected Construction Plans shall continue to apply until the
Construction Plans have been approved by the City. The City's approval shall not be unreasonably
withheld. Such approval shall constitute a conclusive determination that the Construction Plans (and the
Minimum Improvements constructed in accordance with said plans) comply to the City's satisfaction with
the provisions of this Agreement and to local ordinances, rules and regulations.
(b) Changes to the Construction Plans. If the Developer desires to make significant changes
in the Construction Plans, in the discretion of the City Representative, after their approval by the City, the
Developer shall submit the proposed changes to the City's building officials for their approval. Such
changes in the Construction Plans shall, in any event, be deemed approved by the City unless rejected, in
whole or part, by written rejection by the City, to the Developer, setting forth in detail the reasons therefor.
Such rejection shall be made within twenty, (20) days after receipt of the notice of such change. The
City's approval of any such changes in the Construction Plans will not be unreasonably withheld.
Section 4.4. Commencement and Completion of Construction. Subject to Unavoidable Delays, the
Developer shall commence construction of the Minimum Improvements no later than December, 2009.
Subject to Unavoidable Delays, the Developer shall have substantially completed the construction of the
Minimum Improvements no later than September, 2010. All work with respect to the Minimum
Improvements to be constructed or provided by the Developer on the Development Properly shall be in
conformity with the Construction Plans. The Developer shall make such reports to the City regarding
construction of the Minimum Improvements as the City deems necessary or helpful in order to monitor
progress on construction of the Minimum Improvements.
Section 4.5. Certificate of Completion. (a) After completion of the Minimum Improvements in
accordance with the Construction Plans and all terms of this Agreement, the City will furnish the
Developer with a Certificate of Completion, a form of which is attached hereto as Exhibit B. Such
Certificate shall not constitute evidence of compliance with or satisfaction of any obligation of the
Developer to any holder of a Mortgage, or any insurer of a Mortgage, securing money loaned to finance
the Minimum Improvements, or any part thereof.
(b) The Certificate of Completion will be in recordable form in the proper County office for
the recordation of instruments pertaining to the Development Property. If the City refuses or fails to
provide the Certificate in accordance with the provisions of this Section 4.4, the City shall, within 30 days
after written request by the Developer, provide the Developer with a written statement, indicating in
adequate detail in what respects the Developer has failed to complete the Minimum Improvements in
accordance with the provisions of the Agreement, or is otherwise in default, and what measures or acts
will be necessary, in the opinion of the City, for the Developer to take or perform in order to obtain such
Certificate.
(c) The construction of the Minimum Improvements shall be deemed to be complete at such
time as the Developer is legally entitled to the issuance of a certificate of occupancy by the City with
respect thereto.
Section 4.6. Restrictions on Use. The Developer, for itself and its successors and assigns, agrees
to devote the Project only to such land use or uses as may be permissible under the City's land use
regulations.
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ARTICLE V
Insurance
Section 5.1. Insurance. (a) The Developer agrees to provide and maintain at all times during the
process of constructing the Minimum Improvements and, from time to time at the request of the City,
furnish the City with proof of payment of premiums on:
(i) Builder's risk insurance, written on the so-called `'Builder's Risk -- Completed
Value Basis," in an amount equal to one hundred percent (100%) of the insurable value of the
Minimum Improvements at the date of completion, and with coverage available in nonreporting
form on the so called "all risk" form of policy;
(ii) Comprehensive general liability insurance (including operations, contingent
liability, operations of subcontractors, completed operations and contractual liability insurance)
together with an Owner's Contractor's Policy with limits against bodily injury and property
damage of not less than $1,000,000 for each occurrence (to accomplish the above required limits,
an umbrella excess liability policy may be used); and
(iii) Workers' compensation insurance, with statutory coverage.
The policies of insurance required pursuant to clauses (i) and (ii) above shall be placed with financially
sound and reputable insurers licensed to transact business in the State. The policy of insurance delivered
pursuant to clause (i) above shall contain an agreement of the insurer to give not less than thirty (30)
days' advance written notice to the City in the event of cancellation of such policy or change affecting the
coverage thereunder. The City shall be named as an additional insured under the policies of insurance
referred to in (i) and (ii) above.
(b) Upon the issuance of a Certificate of Completion, and prior to the Maturity Date, the
Developer shall maintain, or cause to be maintained, at its cost and expense, and from time to time at the
request of the City shall furnish proof of the payment of premiums on, insurance as follows:
(i) Insurance against loss and/or damage to the Minimum Improvements under a
policy or policies covering such risks as are ordinarily insured against by similar businesses,
including (without limiting the generality of the foregoing) fire, extended coverage, vandalism
and malicious mischief, heating system explosion, water damage, demolition cost, debris
removal, collapse and flood, in an amount not less than the full insurable replacement value of the
Minimum Improvements. No policy of insurance shall be so written that the proceeds thereof
will produce less than the minimum coverage required by the preceding sentence, by reason of
coinsurance provisions or otherwise, without the prior consent thereto in writing by the City. The
term "full insurable replacement value" shall mean the actual replacement cost of the Minimum
Improvements and shall be determined from time to time at the request of the City, but not more
frequently than once every three years, by an insurance consultant or insurer, selected and paid
for by the Developer and approved by the City; and
(ii) Such other insurance, including worker's compensation insurance respecting all
employees of the Developer, in such amount as is customarily carried by like organizations
engaged in like activities of comparable size and liability exposure.
In lieu of any of the foregoing, the Developer may provide evidence to the City that the Developer has
self -insured for the amounts and terms satisfying this Section.
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(c) The parties agree that all of the provisions set forth in this Article shall terminate upon
the Maturity Date.
Section 5.2. Notification: Repair. Reconstruction and Restoration. So long as the Developer is
the owner thereof and until the Maturity Date, the Developer agrees to notify the City immediately in the
case of damage exceeding $50,000 in amount to, or destruction of, the Minimum Improvements, or any
portion thereof resulting fi-om fire or other casualty. Subject to the rights of lenders, in such event the
Developer shall forthwith repair, reconstruct, and restore the Minimum Improvements to substantially the
same or an improved condition or value as it existed prior to the event causing such damage and, to the
extent necessary to accomplish such repair, reconstruction, and restoration, the Developer will apply the
net proceeds of any insurance relating to such damage received by the Developer to the payment or
reimbursement of the costs thereof. In the event the Developer does not repair, reconstruct or restore the
Minimum Improvements, the City shall have no further obligation to allocate Initial Increment and
Supplemental Increment under the terms of this Agreement.
The Developer shall complete the repair, reconstruction, and restoration of the Minimum
Improvements, whether or not the net proceeds of insurance received by the Developer for such purposes
are sufficient to pay for the same. Any net proceeds remaining after completion of such repairs,
construction and restoration shall be the property of the Developer.
Section 5.3. Subordination. Notwithstanding anything to the contrary herein, the rights of the
City with respect to the receipt and application of any insurance proceeds shall, in all respects, be
subordinate and subject to the rights of any holder under a Mortgage allowed pursuant to Article VI of
this Agreement.
ARTICLE VI
Financing
Section 6.1. Generally. (a) Before commencement of construction of the Minimum
Improvements, the Developer shall submit to the City Representative evidence of one or more
commitments for financing which, together Nvith committed equity for such construction, is sufficient for
payment of costs of construction of the Minimum hnprovements. Such commitments may be submitted
as short-term financing, long term mortgage financing, a bridge loan with a long-term take-out financing
commitment, or any combination of the foregoing.
(b) If the City Representative finds that the financing is sufficiently committed and adequate
in amount to pay the costs specified in paragraph (a) then the City shall notify the Developer in writing of
its approval. Such approval shall not be unreasonably withheld and either approval or rejection shall be
given within thirty (30) days from the date when the City is provided the evidence of financing. A failure
by the City to respond to such evidence of financing shall be deemed to constitute an approval hereunder.
If the City rejects the evidence of financing as inadequate, it shall do so in writing specifying the basis for
the rejection. In any event the Developer shall submit adequate evidence of financing to the City within
ten (10) days after such rejection.
Section 6.2. Limitation Upon Encumbrance of Development Property. Prior to the issuance of
the Certificate of Completion, the Developer agrees not to engage in any financing creating any mortgage
or other encumbrance or lien upon the Development Property or the Minimum Improvements, whether by
express agreement or operation of law, or suffer any encumbrance or lien to be made on or attached to the
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Development Property or the Minimum Improvements, other than the liens or encumbrances directly and
solely related to construction of the Minimum hmprovements and approved by the City, which approval
shall not be withheld or delayed unreasonably if the City determines that such lien or encumbrance will
not threaten development of the Development Property or the Minimum hnprovements.
ARTICLE VII
Prohibitions Against Assignment and Transfer; Indemnification
Section 7.1. Representation as to Development. The Developer represents and agrees that its
undertakings pursuant to this Agreement are and will be for the purpose of development of the
Development Property and not for speculation in land holding.
Section 7.2. Prohibition Against Developer's Transfer of Propertv and Assignment of
Agreement. The Developer represents and agrees that prior to issuance of the Certificate of Completion
for the Minimum Improvements:
(a) Except only by way of security for, and only for the purpose of obtaining financing
necessary to enable the Developer or any successor in interest to the Development Property, or any part
thereof, to perform its obligations with respect to making, owning and/or operating the Minimum
Improvements under this Agreement, and any other purpose authorized by this Agreement, the Developer
has not made or created and will not make or create or suffer to be made or created any total or partial
sale, assignment, conveyance, or lease, or any trust or power, or transfer in any other mode or form of or
with respect to this Agreement or the Development Property or any part thereof or any interest therein, or
any contract or agreement to do any of the same (collectively, a "Transfer"), without the prior written
approval of the City, unless the Developer remains liable and bound by this Agreement, in which event
the City's approval is not required. In the absence of a specific written agreement by the City to the
contrary, no such transfer or approval by the City thereof shall be deemed to relieve the Developer or any
other party bound in any way by this Agreement or otherwise with respect to the construction of the
Minimum Improvements fi-om any of its obligations with respect thereto. The provisions of this Section
7.2(a) shall not limit transfers to Affiliates of the Developer.
(b) hi the event the Developer, upon Transfer or assignment of the Development Property or
any portion thereof, seeks to be released from its obligations under this Agreement as to the portions of
the Development Property that are transferred or assigned, the City shall be entitled to require, except as
otherwise provided in this Agreement, as conditions to any such release that:
0) Any proposed transferee shall have the qualifications and financial responsibility,
in the reasonable judgment of the City, necessary and adequate to fulfill the obligations
undertaken in this Agreement by the Developer as to the portion of the Minimum Improvements
or the Development Property to be transferred.
(ii) Any proposed transferee, by instrument in writing satisfactory to the City and in
form recordable among the land records of the County, shall_ for itself and its successors and
assigns, and expressly for the benefit of the City, have expressly assumed all of the obligations of
the Developer under this Agreement as to the portion of the Minimum hnprovements or
Development Property to be transferred and agreed to be subject to all the conditions and
restrictions to which the Developer is subject as to such portion: provided, however, that the fact
that any transferee of, or any other successor in interest whatsoever to, the Minimum
Improvements or Development Property, or any part thereof, shall not, for whatever reason, have
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assumed such obligations or so agreed, and shall not (unless and only to the extent otherwise
specifically provided in this Agreement or agreed to in writing by the Cit},) deprive the Civy of
any rights or remedies or controls Nvith respect to the Development Property or any part thereof or
the construction of the Minimum Improvements; it being the intent of the parties as expressed in
this Agreement that (to the fullest extent permitted at law and in equity and excepting only in the
manner and to the extent specifically provided otherwise in this. Agreement) no transfer of, or
change with respect to, ownership in the Minimum Improvements or Development 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 City of or
with respect to any rights or remedies or controls provided in or resulting from this Agreement
with respect to the Minimum Improvements or Development Property that the City would have
had, had there been no such transfer. In the absence of specific written agreement by the City to
the contrary, no transfer or approval by the City thereof shall be deemed to relieve the Developer,
or any other party bound in any way by this Agreement or otherwise with respect to the
construction of the Minimum Improvements, from any of its obligations with respect thereto.
(iii) Any and all instruments and other documents involved in effecting the Transfer
of any interest in this Agreement or the Minimum Improvements or the Development Property
governed by this Article shall be in a form reasonably satisfactory to the City.
(c) The City's approval of an), Transfer shall not be unreasonably withheld. Any notice of
rejection of a Transfer by the City shall contain detailed reasons for the rejection. In the event the
foregoing conditions are satisfied, the Developer shall be released from its obligations under this
Agreement as to the portion of the Minimum Improvements or the Development Property that is
transferred, assigned or otherwise conveyed.
(d) After issuance of the Certificate of Completion for the Minimum hnprovements, the
Developer may transfer or assign any portion of the Development Property, or the Developer's interest in
this Agreement without the prior written consent of the City, provided that prior to the Maturity Date the
transferee or assignee is bound by all of the Developer's obligations hereunder. Prior- to any such
Transfer or assignment, the Developer shall submit to the City written evidence of any such Transfer or
assignment, including the transferee or assignee's express assumption of the Developer's obligations
under this Agreement. If the Developer fails to provide such evidence of Transfer and assumption, the
Developer shall remain bound by all of its obligations under this Agreement.
Section 7.3. Release and Indemnification Covenants. (a) The City and the governing body
members, officers, agents, servants and employees thereof (the "Indemnified Parties"). except for any
willful misrepresentation or any willful or wanton misconduct or negligence of the Indemnified Parties,
shall not be liable for and the Developer shall indemnify and hold harmless the Indemnified Parties
against any loss or damage to property or any injury to or death of any person occurring at or about or
resulting from any defect in the Development Property or any improvements constructed thereon, but
only to the extent that such defects were caused or committed during the periods that the Developer
owned the Development Property.
(b) Except for any willful misrepresentation or any willful or wanton misconduct or
negligence of the Indemnified Parties, and except for any breach by any of the Indemnified Parties of
their obligations under this Agreement, the Developer agrees to protect and defend the Indemnified
Parties, now and forever, and further agrees to hold the aforesaid harmless from any claim, demand, suit,
action or other proceeding whatsoever by any person or entity whatsoever arising or purportedly arising
from this Agreement, or the transactions contemplated hereby or the acquisition, construction,
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installation, ownership, maintenance and operation of the Development Property or any improvements
constructed thereon.
(c) Except for any willful misrepresentation or any willful or wanton misconduct or
negligence of the Indemnified Parties, the hndemnified Parties shall not be liable for- an}, damage or injury,
to the persons or property of the Developer or its Affiliates, officers, agents, servants or employees or any
other person who may be about the Development Property or any improvements constructed thereon.
(d) All covenants, stipulations, promises, agreements and obligations of the City contained
herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of such
entities and not of any governing body member, officer, agent, servant or employee of such entities in the
individual capacity thereof.
Section 7.4 Right of Holder to Cure Defaults. City agrees to give notice to the Holder of any
Mortgage of any event of default by Developer under this Agreement, specifying the nature of such
default, and thereupon the Holder shall have the right, but not the obligation, to cure such default, and
City shall not exercise its remedies by reason of such default until it has afforded the Holder thirty (30)
days after Holder's receipt of such notice to cure such default and a reasonable period of time in addition
thereto (i) if the circumstances are such that said default cannot reasonably be cured within said thirty
(30) day period and Holder has commenced and is diligently pursuing such cure, or (ii) during and after
any litigation action including a foreclosure, bankruptcy, possessory action or a combination thereof.
ARTICLE VIII
Events of Default
Section 8.1. Events of Default Defined. 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, any one or -
more of the following events:
(a) failure by the Developer or an Affiliate to observe or perform any covenant, condition,
obligation or agreement on its part to be observed or performed under this Agreement;
(b) commencement by the holder of any Mortgage on the Development Property or any
improvements thereon, or any portion thereof, of foreclosure proceedings as a result of default under the
applicable Mortgage documents for the Developer or an Affiliate;
(c) if the Developer or an Affiliate shall:
(i) file any petition in bankruptcy or for any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under the United
States Bankruptcy Act or under any similar federal or State law: or
or
(ii) make an assignment for benefit of its creditors; or
(iii) admit in writing its inability to pay its debts generally as they become due;
(iv) be adjudicated a bankrupt or insolvent
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(d) failure by the City to observe or perform any material covenant, condition, obligation or
agreement or its part to be observed or performed under this Agreement.
Section 8.2. Remedies on Default. Whenever any Event of Default referred to in Section 8.1 of
this Agreement occurs, the non -defaulting party may exercise any of the following rights under this
Section after providing thirty (30) days written notice to the other of the Event of Default, but only if the
Event of Default has not been cured within said thirty (30) days or, if the Event of Default is by its nature
incurable within thirty (30) days, the defaulting party does not, within such thirty (30) day period, provide
assurances reasonably satisfactory to the party providing notice of default that the Event of Default will
be cured and will be cured as soon as reasonably possible:
(a) suspend its performance Linder this Agreement until it receives reasonably satisfactory
assurances that the defaulting party will cure its default and continue its performance under this
Agreement;
(b) cancel and rescind or terminate its obligations under this Agreement or any portion
thereof, including without limitation the obligation to apply and allocate Available Tax Increment
pursuant to Section 3.3 hereof as to any portion of the Project owned by the Developer, or an Affiliate, as
of the date of the notice of default:
(c) if the default occurs prior to completion of any portion of the Minimum Improvements,
the City may withhold the Certificate of Completion with regard to the uncompleted portion: or
(d) take whatever action, including legal, equitable or administrative action, which may
appear necessary or desirable to collect any payments due under this Agreement, or to enforce
performance and observance of any obligation, agreement, or covenant of the defaulting party under this
Agreement.
City agrees not to suspend its obligations under the Agreement or terminate or rescind the
Agreement as a result of the Holder of a Mortgage initiating or continuing foreclosure proceedings, upon
the Holder taking possession of the Development Property or following a sale of the Development
Property by the Holder or as a result of any foreclosure proceedings so long as the Holder and/or
subsequent purchaser agrees to assume all of the obligations of the Developer under the Agreement.
Section 8.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to any party
in this Agreement 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 to exercise any remedy reserved to it, it shall not be
necessary to give notice, other than such notice as may be required in this Article.
Section 8.4. No Additional Waiver Implied by One Waiver. In the event any agreement
contained in this Agreement should be breached by any party and thereafter- waived by another parry,
such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any
other concurrent, previous or subsequent breach hereunder.
Section 8.5. City's Attornev Fees. Whenever any Event of Default occurs by the Developer and
if the City shall employ attorneys or incur other expenses for the collection of payments due or to become
due or for the enforcement of performance or observance of any obligation or agreement on the part of the
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Developer under this Agreement, the Developer shall, within twenty (20) days of written demand by the
City, pay to the City the reasonable fees of such attorneys and such other expenses so incurred by the
City.
ARTICLE IX
Additional Provisions
Section 9. L Conflicts of hrterest. Representatives Not Individually Liable. The City and the
Developer, to the best of their knowledge, represent and agree that no member, official, or employee of
the City shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member,
official, 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, or employee of the City shall be personally liable
to the Developer, any Affiliate, 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 the Developer or successor or on any obligations under
the terms of the Agreement.
Section 9.2. Binding Effect. This Agreement shall inure to the benefit of and shall be binding
upon the City, the Developer, any Affiliates, and their respective successors and assigns.
Section 9.3. Severability. In the event any provision of this Agreement shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
Section 9.4. Equal Employment Opportunity. The Developer agrees, for itself and any Affiliate,
successors, and assigns, that during the term of this Agreement it will comply with all applicable federal,
State and local equal employment and non-discrimination laws, regulations, and ordinances as they relate
to the development of the Project.
Section 9.5. Covenant to Pay Property Taxes and Assessments. The Developer agrees for itself,
its Affiliates, successors and assigns, in addition to the obligations pursuant to the SID Act and State law
to pay real estate taxes and special assessments, that it is also obligated by reason of this Agreement to
pay before delinquency all real estate taxes and Assessments against the Development Property during
any period while the Developer holds title to any portion of the Development Property. The Developer
acknowledges that this obligation creates a contractual right on behalf of the City to sue the Developer or
its successors and assigns to collect delinquent real estate taxes, Assessments, and any penalties or
interest thereon and to pay over the same as a tax payment to the County Auditor. In any such suit, the
City shall also be entitled to recover its costs, expenses and reasonable attorney fees.
Section 9.6. Provisions Not Merged With Deed. None of the provisions of this Agreement are
intended to or shall be merged by reason of any deed transferring any interest in the Development
Property and any such deed shall not be deemed to affect or impair the provisions and covenants of this
Agreement.
Section 9.7. 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 9.8. 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
17
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sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return
receipt requested, or delivered personally to the following addresses:
To the Developer: DCP KALISPELL, LLP
120 Derby Forest CT
Roswell, GA 30076
Attention: Ron Buchanan
To the City: City of Kalispell
201 1 st Ave. E.
PO Box 1997
Kalispell, Montana 59903-1997
Attention: City Manager
The City or the Developer may, by notice given hereunder, designate any further or different addresses to
which subsequent notices, requests, or other communications shall be sent.
Section 9.9. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall constitute one and the same instrument.
Section 9.10. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Montana.
Section 9.11. Recordin--. The City may record this Agreement and any amendments thereto with
the County Recorder. Tile Developer shall pay all costs for recording this Agreement.
Section 9.12. Gender. Etc. Words of any gender include the correlative words of the other
gender. The terms "hereof," "hereby,", "herein," "hereto," "hereunder," "llereinafter," and similar terms
refer to this Agreement; and the term "hereafter" means after, and the term "heretofore" means before, the
date on which this Agreement was fully executed.
Section 9.13. Entire Agreement. This Agreement constitutes the entire agreement between the
parties pertaining to its subject matter and it supersedes all prior contemporaneous agreements,
representations, and understandings of the parties pertaining to the subject matter of this Agreement. This
Agreement may be modified, amended, terminated, or waived, in whole or in part, only by a writing
signed by all of the parties.
IN WITNESS WHEREOF, the City and the Developer have caused this Agreement to be duly executed
by their duly authorized representatives as of the date first above written.
CITY OF KALISPELL, MONTANA
By
Its °10ity Manager
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IIIIIIN II II III III III{I Iil I IIB IINI IIIIIIIIII IIIII IIIII IIIII NIII Illi II I III IIIII IIII IIII P20090002068
age: 23 of 25
Paula Robinson, Flathead countyMT b NC Fees: $175.00
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State of Montana
County, of Flathead
The foregoing instrument eras acknowledged before me this \', �- day of
i~_ -1 ,�--,i�_ <- 2061, by� jt��s,t:� l��t� t vv
th{ � � . the City Manager of
e City of Kalispell_ Montana, on behalf of the City.
1t��lilti!/�7
b t EAt:
(seal) cs:,'� '$
jf'jlttkl��`
State of Montana
County of c�
(Typed, Stamped, or Printed Name of Notary)
Notary Public for the State of Montana
Residing at:
My commission expires: 200
DCP KALIS ,
By
Its ') -c' /f
The fore in>? instrument was acicn ���]edged before me this day of
20 '�'c iktl
e
Of �� P LJL � a L_- C - on behalf of the
1'
iICNE ^v E N. IFFRiDP1 { it (
PU31IC - MONT NN �
* o A, a. �.,, ��, Montana `(Typed, Stamped, or Printed Name f Notary)
,
SEA
-'/ c mom £saes Oc: 23, 2Di2
Notary Public for the State of Montana
Residing at: �A%L'2,a0�)-k
(seal) My commission expires: G+ Z--�) . 206Z
19
iillllll l l l l i lllll III I III I IIIII III I IIIII II I IIIi 111l lllll 11l lli l l 11 l 11 llll llil Page: 24 off 25
Fees; $175.00
Paula Robinson, Flathead County MT by NC 10/14j2009 4:07 PM
EXHIBIT 'A'
LEGAL DESCRIPTION OF THE DEVELOPMENTAL PROPERTY:
LOT 2A OF THE AMENDED PLAT OF LOTS 2 AND 3 OF OLD SCHOOL STATION, ACCORDING TO
THE MAP OR PLAT THEREOF ON FILE AND OF RECORD IN THE OFFICE OF THE CLERK AND
RECORDER OF FLATHEAD COUNTY, MONTANA.
Page 1of1
II I II I I I I I II III I II II III III I III I I III I I II I I III III Page: 2 of 25
Page: 25 of 25
Fees:$175.00
Paula Robinson, Flathead County MT by NC 10/14/2009 4:07 PM
FW61101
CERTIFICATE OF COMPLETION
(Minimum Improvements)
The undersigned hereby certifies that the obligations set forth in Articles III and IV of that
document titled "Contract for Private Development," dated , 20 between the City of
Kalispell, Montana and with respect to construction of the Minimum
Improvements in accordance Nvith the Construction Plans, have been fully satisfied and that such
obligations are hereby released and forever discharged.
Dated: .20
STATE OF MONTANA
ss.
COUNTY OF FLATHEAD
By:
Its:
CITY OF KALISPELL, MONTANA
City Manager
The foregoing instrument was acknowledged before me this day of . 20_, by
and , the City Manager, of the City of
Kalispell, Montana a municipal corporation under the laws of the State of Montana, on behalf of the City.
(seal)
(Typed, Stamped, or Printed Name of Notary)
Notary Public for the State of Montana
Residing at:
My commission expires: .200
:I