#1 Spring Prairie PUD (2001)ORDINANCE NO. 14047
v
AN ORDINANCE APPROVING A PLANNED UNIT DEVELOPMENT ON CERTAIN REAL
PROPERTY OWNED BY THE DEPARTMENT OF NATURAL RESOURCES AND
CONSERVATION (DNRC) KNOWN AS SECTION 36.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL, AS
FOLLOWS:
SECTION.I. That the Planned Unit Development proposed by
the Department of Natural Resources and Conservation, upon the
real property described in Exhibit "A", attached hereto,
f� incorporated herein, and thereby made a part hereof, is hereby
O approved, subject to the following conditions:
t�
1. That the development of the site shall be in substantial
compliance with the Section 36 Neighborhood Plan as
amended through the MEPA process, the Development
Agreement, application, the site plan and conditions for
the PUD as approved by the City Council.
2. The proposed development areas within the site shall be
substantially the same as indicated on the preliminary
site plan submitted with the application or as modified
by these conditions.
3. That the plans and specifications for water, sewer,
drainage and grading shall be designed and installed in
accordance with the Kalispell. Design and Construction
Standards and shall be subject to review and approval by
the Kalispell Public Works Department at the time of
subdivision review.
4. The fire access and suppression system ,shall be reviewed
and approved by the Kalispell Fire Department for
compliance with the Uniform Fire Code.
5. A plan shall be developed and in place that addresses the
grading, revegetation, irrigation and maintenance of the
undeveloped areas that creates a weed free, dust -free
area until such time as that phase is fully developed.
6. That the necessary easements be obtained for the
extension of water and sewer services to the site.
7. That a traffic impact study be completed which identify
all expected traffic impacts and proposals for
mitigation, and that appropriate approach permits be
obtained from the Montana Department of Transportation
and the City of Kalispell at the time development occurs.
8. That pedestrian walkways be provided as the site develops
that provides a continuous and connected system with the
existing walkways along Highway 93, Four Mile Drive and
within the developed areas of the site.
9. That the uses allowed within the Development shall not
include those which require areas for the display of
large merchandise such as new and used automobile sales,
manufactured home sales, recreational vehicle sales and
lumberyards. This would not preclude incidental events
associated with the other businesses on the site.
10. That the phasing and taming of the Development shall
occur as proposed. Bonding for the proposed
infrastructure and improvements or other acceptable means
of insuring that the improvements will be completed as
proposed shall be provided by the Developer at the time
of subdivision review.
1.1.. The developer and City of Kalispell shall execute a
Development Agreement based on terms and conditions
included in the Planned Unit Development.
SECTION II. This Ordinance shall take effect from and after
30 days of its passage by the City Council.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF
THE CITY OF KALISPELL, MONTANA, THIS 3RD DAY OF DECEMBER, 2001.
Wc.
Wm. E. Boharski
Mayor
ATTEST:
Theresa white
City Clerk
Exhibit A
That portion of Section 36, Township 29 North, Range 22 West, Principal
Meridian, Flathead County, Montana described as follows:
The Southwest 1/4, the Northwest 1/4 and that portion of the Northeast 1/4 lying
westerly of the westerly right-of-way line of U.S. Highway No. 93 as shown on
Federal Aid Project Nos. F 5-3(32)115 and F 5-3(24)115, excepting therefrom the
Southwest 1/4 of the Southwest 1/4 of the Northwest 1/4 and the Northwest 1/4 of
the Northwest 1/4 of the Southwest 1/4 all in Section 36, Township 29 North,
Range 22 West, containing 454.4 Acres of Land, more or less.
SPRING PRAIRIE
PLANNED UNIT DEVELOPMENT AGREEMENT
PARTIES AND PURPOSE: This Agreement made and entered into thisday
ofl2001 is by and between State of Montana Department of Natural Resources
& Conservation (hereinafter "DNRC"), with its office and principal place of business located
at 2250 Highway 93 North; and the City of Kalispell, a municipal corporation (hereinafter
"City") with its office and principal place of business located at 312 - 1st Avenue East,
Kalispell, Montana 59901:
WITNESSETH:
WHEREAS, The State of Montana Department of Natural Resources & Conservation
is the owner of certain real property located in Flathead County, Montana, which is further
described in Exhibit "A" attached hereto and made a part hereof, and which hereinafter is
referred to as the "Subject Property"; and,
WHEREAS, The Subject Property is subject to a request for annexation and initial
zoning; and,
WHEREAS, DNRC is desirous of applying a Planned Unit Development (PUD)
overlay to city zoning classifications; and,
WHEREAS, In order to allow the PUD, assure the installation of Infrastructure within
the "Subject Property", permit connections to the CITY utility systems, and prescribe the
permitted uses within the requested zoning areas, the parties hereto determine it is to be
in their best interests to enter into this Planned Unit Development Agreement; and,
WHEREAS, (i) Use and development of the property is subject to the provisions of
the Section 35 Neighborhood Plan, jointly adopted by the City of Kalispell and Board of
County Commissioners in 1999; (ii) the adopted plan is further subject to an environmental
impact statement performed under the Montana Environmental Policy Act; (iii) and further
subject to the Record Of Decision (ROD) which establishes additional parameters to
development and (iv) a Memorandum Of Understanding (MOU) establishes policy for
taxation, local review of projects, and other development considerations; and,
WHEREAS, DNRC is requesting annexation of the property into the City of Kalispell
with City of Kalispell Zoning classifications of B-5 to be applied to the Mixed Commercial
POD, R-5 to the Mixed Professional POD, and R-4 to the Mixed Residential POD; and,
WHEREAS, It is desirous by DNRC to further restrict the allowances of these City
of Kalispell Zoning classifications to the property and to provide additional standards for
development consistent with the Plan by applying a PUD overlay to the underlying zoning
classifications.
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I. DEFINITIONS
1.01 Agreement shall mean this Planned Unit Development Agreement between DNRC,
and CITY.
1.02 Building Department shall mean the Building Department of the City of Kalispell.
1.03 CITY shall mean the City of Kalispell, Montana.
1.04 City Council shall mean the City Council of the City of Kalispell, Montana.
1.05 Developer shall mean DNRC, its agents, designees and assigns.
1.06 Director of Public Works shall mean the Director of Public Works of the City of
Kalispell, Montana.
1.07 Easement(s) means the Easement(s) described in §3.04 of this Agreement.
1.08 Section 36 Plan means the Neighborhood plan approved by the City of Kalispell and
Board of Flathead County Commissioners and as amended by the Record of Decision
issued by DNRC on August 11 , 2001, all pertaining: to the School Trust Lands located in
Section 36, T29N-R22W, Flathead County Montana.
1.09 Mixed Commercial means that portion of the Subject Property generally lying in the
NE'/4 of Section 36 and as more particularly described in Exhibit B.
1.10 Mixed Professional means that portion of the Subject Property lying generally in the
NW '/ of Section 36 and as more particularly described in Exhibit C.
1.11 Mixed Residential means that portion of the Subject Property lying generally in the
SW'/4 of Section 36 and as more particularly described in Exhibit D.
1.12 Sports Fields means that portion of the property generally located in the SE 1/. of
Section 36 and already zoned P-1 and previously annexed into the City of Kalispell.
1.13 Subject Property or Subject Area means the real property described in Exhibit A.
1.14 Memorandum of Understanding means a 3-party agreement entered into by
DNRC, City of Kalispell, and Board of Flathead County Commissioners dated April 19,
2001.
1.15 Final Environmental Impact Statement means a document released as a Final
Environmental Impact Statement (FEIS) by DNRC on July 26, 2001 relative to proposed
actions associated with school trust lands located in Section 36, Township 29 N, Range 22
W, P.M.M., Flathead County Montana.
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1.16 Record of Decision means a decision document issued by DNRC on August 11,
2001, that identifies selective alternatives related to a land use plan for Section 36 and a
proposal to lease land in section 36 to construct a business and technology park.
1.17 Substantial Completion shall mean that substantially all of the work to be performed
in the development shall have been performed and the Infrastructure constructed in each
Phase are usable for their intended purposes, as certified by the Director of Public Works
and the Building Department, which certification shall not be unreasonably withheld or
delayed.
1.18 Infrastructure means all water, sewer and storm drainage systems that will be
dedicated to the public and have been installed in accordance with the Montana Public
Works Standard Specifications and the City of Kalispell Standards for Design and
Construction. In addition, Infrastructure shall include roads that are designed and
constructed in accordance with the Montana Public Works Standards for Design and
Construction. Said Infrastructure shall consist of various public utilities and dedicated
streets. The Infrastructure required to serve developed facilities and to provide connection
to future phases of development will be identified concurrent with subdivision review.
Notwithstanding any of the foregoing, excluded from these terms are: building construction;
parking lot paving; final landscaping in and around the buildings and parking lot(s); lighting;
signage; and the service lines to each building.
1.19 Section 36 means land owned by the State of Montana as School Trust Lands
(Section 36, T 29 N, R 22 W, P.M.M., Flathead County Montana) and administered by the
DNRC and as more precisely described by Exhibit A.
1.20 School Trust Lands mean lands granted to the state of Montana by the Enabling Act
of February 22,1889 (and subsequent acts) for support of the common schools.
1.21 DNRC means State of Montana/Department of Natural Resources and Conservation.
II. GENERAL DEVELOPMENT AND USE OF THE SUBJECT PROPERTY
2.01 Development Overview
(A) Subject to the other provisions of this Agreement, any use/development of the
Subject Property occurring after the effective date of this Agreement shall substantially
conform to and comply with the provisions of the PUD Kalispell Zoning of Section 36 and
this Agreement with the documents and drawings annexed hereto.
(B) It is agreed between the parties, that the development of the Subject Property
will include the following:
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(1) A land use map, which identifies three land use pods and a
proposed alignment of internal collector roads to be built in
phases as development occurs (Exhibit E);
(2) A list of permitted uses associated with each land use pod;
(3) A phasing schedule of development;
(4) Description of Infrastructure as described in the FEIS for use
in planning and bonding purposes;
(5) Annexation of the Subject property into the city limits of
Kalispell;
(6) Extension of city water and sewer services by DNRC or its
assigns to serve the developed facilities of the Subject
Property;
(7) Adherence to the Memorandum of Understanding jointly
approved by the City of Kalispell, Flathead County, and DNRC;
and
(8) Compliance with the PUD zoning regulations and City of
Kalispell Subdivision regulations.
(C) ❑evelopment themes for each Land Use POD being annexed into the City of
Kalispell are as follows:
(1) Mixed Commercial: a district providing a variety of commercial
industries are appropriate and where community design to
minimize the appearance of strip commercial development is
desirable, including restriction of allowable uses as might
otherwise be permitted or conditionally permitted in the B-5
City of Kalispell zoning classification. Strip -type uses
characterized by substantial outdoor storage and display of
products, such as car lots and equipment and trailer sales are
specifically excluded. Also specifically excluded as permitted
uses are gaming/gambling establishments of any kind,
including casinos. The range of permitted uses is intended to
permit a variety of uses associated with the retail, professional
services, or technology industries but does not necessarily limit
or restrict opportunities for continued agricultural operations or
practices. However, technology uses are given priority
consideration.
(2) Mixed Professional: a district providing opportunities for
development of offices, office parks, and compatible uses in a
fashion that promotes clustering of uses and architectural
control, including but not limited to all uses set forth in Kalispell
Zoning Ordinance Classification R-5 and as otherwise modified
by this Agreement. The phasing limitations anticipated by the
Section 36 Neighborhood Plan would be modified to encourage
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development of schools and a resource agency office park in
this POD.
(3) Mixed Residential: a district providing opportunities for
development of residential uses, offices, and other compatible
uses in a fashion that promotes clustering of uses and
architectural control, including but not limited to all uses set
forth in Kalispell Zoning Ordinance Classification R-4 and as
otherwise modified by this Agreement. A land exchange
process will be encouraged to facilitate opportunities for private
ownership and development of this POD. The phasing
limitations anticipated by the Section 36 Neighborhood Plan
would be modified to encourage development of schools in this
POD.
(D) The creation of individual lots (or lease lots) will be subject to subdivision review
concurrent with specific project proposals. Subdivision approval will verify compliance with
the provisions of the PUD Agreement and covenants and identify requirements for
extension of utility services. Bonding requirements to guarantee completion of the required
infrastructure (roads, water, sewer, etc) will be accomplished via the subdivision approval
process. The Infrastructure requirements as described in the FEIS may be referenced by
the City in fixing any conditions for subdivision approval. Infrastructure improvements shall
accommodate the needs of future development within each POD, such as planning for
road, water, and sewer extensions beyond the immediate project area.
(E) General performance standards applicable to the Subject Property are as
follows:
(1) Transportation and Parking
a. General access to this district from U.S. Highway 93
shall be limited to no more than 2 approaches. New
approaches onto Reserve Drive, Stillwater Road, and Four Mile
Drive shall generally be limited to a minimum spacing distance
of 1,300 feet or as otherwise authorized by the access
permitting agency;
b. All uses shall have direct access from the internal
road system. No direct access to a particular use shall be
permitted from the Highway or the other perimeter public roads
as listed in la, above;
c. The collector road system shall be as generally
shown by Exhibit E and as more precisely aligned by
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subsequent engineering analysis, use patterns, and subdivision
review;
d. All roadway improvements shall be built in
accordance with city of Kalispell road design standards;
e. Roadway design shall include provisions for
landscape boulevards and sidewalks. A bike and pedestrian
path system shall generally follow the internal collector road
system with outlet connections to path systems external to the
property, including connection to the proposed Meridian/ Four
Mile Drive bike path;
f. Lighting shall be shielded and directed downward;
r
g. Parking space requirements and general parking lot
design shall be guided by the parking and loading provisions of
the City of Kalispell Zoning Regulations, except as noted
herein. Parking lots in the Mixed Commercial and Mixed
Professional PODS may extend to within 5 feet of any lease lot
boundary, provided a 5 foot wide exterior landscape buffer
adjoins the extended parking lot. In locations where the parking
lot adjoins a landscaped common area, no setback from the
lot/lease boundary is required.
(2) Landscaping
a. Landscaping, to include lawn, shrubs, trees, and/or
rock gardens, shall comprise all open spaces within the
boundaries of the parent lease lot. Parking lots may extend to
within 5 feet of any lot/lease lot boundary.
b. Buildings in the Mixed Commercial and Mixed
Professional PODS shall be set back a minimum of 20 feet
from the side, front, side corner, and rear of the parent (not
sublots) lot/lease lines.
c. Parking lots serving multiple businesses where the
area for parking spaces exceeds a lineal length or width of 270
feet shall include internal landscape islands having minimum
dimensions of 9 feet by 18 feet at a ratio of I island for every 15
continuous parking spaces when such spaces are located
internal to the parking lot (not abutting the perimeter boundary
to the parking lot or store front);
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d. A landscape boulevard having a minimum width of 4
feet shall parallel both sides of the collector roads shown on
the neighborhood plan map. Street trees acceptable to the City
of Kalispell shall be planted at 40 to 50 foot intervals as
appropriate.
e. Sidewalks or pathways shall connect developed
properties to the roadside sidewalks (see 1 e, above);
f. All landscaped areas shall be irrigated and routinely
maintained by Developer or its assigns; and
g. An irrigated landscape corridor of at least 20 feet in
width shall parallel the right of way of U.S. Highway 93
adjacent to the commercial POD. The corridor should include
undulating topography and have a mix of tree plantings with a
ground cover of predominately lawn. A similar landscape
common corridor, 10 feet in width shall parallel West Reserve
Drive and be completed in phases to correspond with
development activity.
3. Building and [lease] Lot Parameters
a. Buildings should not exceed 35 feet above natural
grade in the Mixed Residential POD and 40 feet in the Mixed
Commercial and Mixed Professional PODS.
b. Applied finishes of buildings shall be predominately
earth tone;
c. Buildings shall have an orientation towards the
internal road system;
d. Ground and wall signs may be used to identify a
single use lease lot or multiple uses within a common lot/lease
area. Ground signs shall have natural earth tones and not
contain any exterior plastic, plexiglass, or similar components.
The ground sign shall not have internal lighting or sign -
mounted external lighting. Shielded lighting may be provided
from ground -mounted fixtures directed towards the sign face.
Ground signs may have a concrete or similar mounting base
but in no situation shall the total height of the sign exceed 8
feet. Allowable signage area is subject to the provisions of the
Kalispell Zoning Ordinance but shall not exceed a total ground
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sign area of160 sq ft. Wall signs may have internal lighting and
shall not exceed a sign face area of 80 sq ft.;
e. In situations involving a commercial or office town
home, condominium or sublot design, only the parent lot is
eligible for a common ground sign. Individual uses are eligible
for a wall sign if the use has outside frontage. A common wall
sign may be appropriate to identify a building having multiple
tenants. A common signage plan that involves other types of
building signage, such as canopy signage, may be permitted
subject to the review and approval of the City of Kalispell Site
Development Review Committee. Residential uses shall be
permitted signage as otherwise permitted by the City of
Kalispell zoning regulations. All other provisions of the Kalispell
sign regulations shall apply subject to the restrictions set forth
herein;
f. The exterior appearance of commercial buildings with
"backs" facing, adjacent, and visible from Highway 93 shall
contain architectural elements found on the "front" portions of
the buildings. Walls and surface planes should be broken up in
such a manner as to create a visual interest, avoiding
monotony;
g. Lease lots with single or multiple buildings shall have
sufficient area to accommodate the size of the proposed
building(s) and required on -site parking plus sufficient area for
landscaping exterior to the building and parking lot (see 2a &
2b, above);
h. A single lease lot may contain buildings with multiple
tenants and/or uses or be comprised of multiple attached or
detached buildings. In such situations, landscaping, parking,
and internal access shall be common to all buildings within the
lease lot; and
i. Commercial buildings or combination of buildings on
a single lease lot exceeding 60,000 sq ft total gross floor area
(where no sublots have been established) shall be set back a
minimum distance of 300 feet from U.S. Highway 93.
4. Extension of Services
a. All required services shall be underground; and
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b. Annexation and provision of city services shall be
subject to the approval of the City of Kalispell.
5. Growth Management
a. Development of property shall conform to the general
provisions of the neighborhood plan consistent with Section
27.22.120, KZO.
b. Phase I (Exhibit B) is the Mixed Commercial Pod.
i. Clustering of uses is preferred to
encourage sharing of roads, parking, utilities,
and common design. However, separation of
uses, such as "large" from "small" or
"commercial" from "industrial" may be
appropriate within the Commercial POD.
ii. Development design is intended to
avoid a "strip" commercial appearance with
specific exclusion of certain uses.
iii. The area of the Mixed Commercial
POD will be extended to include the entire NE'/4
of Section 36 and the extended area will be held
as a reserve area for expansion of technology
uses beyond the original POD area as described
by Exhibit B-1,
iv. That portion of the Mixed Commercial
POD lying southerly of the by-pass alignment will
offer leases primarily to business (offices) and
technology uses and compatible commercial
uses, such as small retail convenience uses
(delis, restaurants, copy shop, "wired" motel,
etc). Retail stores exceeding 10,000 square feet
per store front will not be permitted. No retail will
be permitted until at feast 20,000 square feet of
non -retail space is leased and operating within
the POD.
v. Expansion of business and technology
uses into the expansion area will not be
permitted until at least 60% of the originally -sized
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Mixed Commercial POD is leased for
development.
vi. If business and technology uses fail to
achieve a 40,000 square foot floor area leasing
threshold within 5 years following execution of
this agreement, or if the proposed business and
technology park as proposed by Hampstead
Partners fails to proceed within 2 years following
the execution of this agreement , then the
original Mixed Commercial and Mixed
Professional boundaries (Exhibit B) shall be
restored and the retail restrictions removed to
permit all the uses listed in Section 2.02 of this
Agreement. The City agrees that if the proposed
business and technology park, as proposed by
Hampstead Partners fails to proceed within 1
year following the execution of this agreement, it
shall provide marketing assistance to the
Developer to achieve the goals set forth above.
vii. If business and technology uses fail to
achieve a 120,000 square feet floor area
threshold within 10 years following the execution
of this agreement , then the boundaries of the
original Mixed Commercial POD (Exhibit B) shall
be restored and the retail restrictions removed to
permit all the uses listed in Section 2.02 of this
Agreement.
c. Phase 11 (Exhibit C) is the Mixed Professional POD.
i. Clustering of uses is preferred to
encourage sharing of roads, parking, utilities,
common design, and to prevent a scattered
development pattern within the POD.
ii. Infill of developed uses, with some
exceptions, such as schools, agricultural
facilities, and equestrian facilities, shall be from
east to west. The "Section 36 Neighborhood Plan
Map" also designates an area along Stillwater
Road that is excluded from nonagricultural
development until the year 2010. Schools and a
natural resource agency campus may build at
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any time within the Mixed Professional POD,
including the deferred development area.
iii. Development of non-agricultural uses
shall be restricted to no more than 20% of this
POD until at least 50% of the Mixed Commercial
POD (Exhibit B) is leased for development.
School, agency campus, and equestrian facilities
may be permitted at any time and are not subject
to the 20% calculation.
iv. That portion of the NE 114 of Section
36 lying within the Mixed Professional POD may
be added to the area of the Mixed Commercial
POD as described in (b) above. The amended
legal description of the Mixed Commercial POD
is described in Exhibit C-1. The infill pattern of
the Mixed Professional POD would need to
reflect this reserve area for the future expansion
of the Mixed Commercial POD.
d. Phase III is the Mixed Residential POD.
i. Clustering of uses is preferred to
encourage sharing of roads, parking, utilities,
common design, and to prevent a scattered
development pattern within the POD.
ii. Infill of developed uses, with some
exceptions, such as schools, agricultural
facilities, and equestrian facilities, shall be from
south to north or from east to west. The "Section
36 Neighborhood Plan Map" also designates an
area along Stillwater Road that is excluded from
non-agricultural development until the year 2010.
Schools may build at any time within the Mixed
Residential POD, including the deferred
development area.
iii. Development of non-residential and
nonagricultural uses shall be restricted to no
more than 20% of this POD until at least 50% of
the Mixed Professional POD is leased for
development or 50% of this POD is occupied by
residential uses, whichever comes first. This
limitation does not apply to public facilities.
6. Supplementary Regulations
a. Accessory uses shall be permitted as appropriate to
a particular use and as generally set forth in Section 27.22.020
et seq, KZO. Subsections 2a and 2b of that section of the KZO
shall generally apply to residential uses within any portion of
Section 36. Subsections 2d and 2e, KZO, would apply as
appropriate to non-residential uses in any portion of Section
36.
b. The greenbelt provisions of Section 27,22.050 shall
be interpreted and applied concurrent with subdivision review.
c. If a single lot/lease lot contains buildings with
multiple tenants and/or uses or is comprised of multiple
attached or detached buildings, landscaping, parking, and
internal access shall be common to all buildings within the lot.
This provision shall not apply to lots approved for single family
dwellings.
d. The creation of sublots (including for purposes of
leasing ) may be appropriate in situations involving residential,
commercial, office, and industrial uses.
e. All other provisions of the Chapter 27.22 of the City
of Kalispell Zoning Regulations shall apply.
(F) Covenants. Draft covenants are attached as Exhibit F. Prior to construction of
any building improvements or concurrent with subdivision review, final covenants shall be
completed and recorded. The City shall review the covenants for consistency with this PU❑
Agreement and shall revise the covenants as necessary to comply with the conditions of
approval of the PUD.
2.02 Uses
(A) The uses allowed in the PUD shall be those uses generally allowed under the
following zoning classifications and as otherwise limited herein:
1) Mixed Commercial POD ---- Zoning Classification B-5
2) Mixed Professional POD — Zoning Classification R-5
3) Mixed Residential PO❑ — Zoning Classification R-4
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(B) The Mixed Commercial POD is limited to the following permitted uses.
1) Agriculture (farming, livestock, riding academies, stables,
horticulture, nursery, etc)
2) Automobile service (fuel, wash, mechanical repair, tires, etc)
3) Barber & beauty services, massage parlor, etc
4) Cultural facilities (museums, theaters, libraries, etc)
5) Educational facilities (private and public schools, colleges,
universities, trade schools, music, dance, theater lessons,
educational research or incubator facilities, etc)
6) Financial services and institutions (banks, credit unions,
mortgage companies, savings & loans, etc)
7) Healthcare (medical offices/clinics, dental/orthodontic, in-
patient/outpatient facilities, pharmacies, diagnostic services
and treatment, etc)
8) Office, professional/governmental
9) Park, private or public (may include open space, trails, passive
or developed facilities, etc)
10) Public assembly buildings (assembly halls, coliseums,
stadiums, convention center, etc)
11) Public or quasi public buildings/structures (fire/law enforcement
stations, community /homeowner facilities, water tower,
electrical distribution/stations lines, telephone relay equipment,
etc)
12) Radio/television broadcast stations, internet companies, etc
13) Recreational facilities, outdoor/indoor, private/public or quasi -
public, commercial/non-commercial (tennis courts, bowling
alley, golf course, ice skating arenas, ball fields, swimming
pool, zoo, amusement park, community center gym,
health/fitness club, driving range, etc)
14) Research, technical, or business parks (may include indoor
assembly of parts, limited outdoor storage, product distribution)
15) Restaurant (deli, bakery, fast food, sit-down, beverage shop,
drive -through, etc)
16) Retail facilities/enterprises (clothing, convenience, food,
sporting, book, office products, drug, computer, phone,
hardware, tire, plumbing, electrical, furniture, art, household,
gifts, mall, warehouse discount, etc)
17) Tourist accommodations (motels, hotels, bed & breakfast,
campground, recreational vehicle park, etc)
18) Veterinary services and facilities
19) Worship buildings (churches, synagogues, etc)
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(C) The Mixed Professional POD is limited to the following permitted uses.
1) Agriculture (farming, livestock, riding academies, stables,
horticulture, nursery, etc)
2) Automobile convenience (fuel, wash, & convenience retail,
only, i.e. no mechanical service)
3) Barber & beauty services, massage parlor, etc
4) Cultural facilities (museums, theaters, libraries, etc)
5) Educational facilities (private and public schools, colleges,
universities, trade schools, music, dance, theater lessons,
educational research or incubator facilities, etc)
6) Financial services and institutions (banks, credit unions,
mortgage companies, savings & loans, etc)
7) Food/grocery store
S) Healthcare (medical offices/clinics, dental/orthodontic, in-
patient/outpatient facilities, pharmacies, diagnostic services
and treatment, etc)
9) Office, professional/governmental
10) Park, private or public (may include open space, trails, passive
or developed facilities, etc)
11) Public or quasi public buildings/structures (fire/law enforcement
stations, community /homeowner facilities, water tower,
electrical distribution/stations lines, telephone relay equipment,
etc)
12) Radio/television broadcast stations, Internet companies, etc
13) Recreational facilities, outdoor/indoor, private/public or quasi -
public, commercial/non-commercial (tennis courts, bowling
alley, golf course, ice skating arenas, ball fields, swimming
pool, zoo, amusement park, community center gym,
health/fitness club, driving range, etc)
14) Restaurant (excludes food drive -up service but permits drive -
up beverage service and take and bake establishments and sit-
down facilities)
15) Retail enterprises less than 3000 square feet in gross floor
area (excludes tavern, gaming, or casino facilities/operations)
16) Veterinary services and facilities
17) Worship buildings (churches, synagogues, etc)
All other uses otherwise listed as permitted or conditionally permitted in the R-5
zoning classification may be considered only as conditionally permitted uses in the Mixed
Professional POD.
(D) The Mixed Residential POD is limited to the following permitted uses.
1) Agriculture (farming, livestock, riding academies, stables,
horticulture, nursery, etc)
2) Educational facilities (services/facilities for pre -K or K-12 only)
3) Office, professional/governmental
4) Park, private or public (may include open space, trails, passive
or developed facilities, etc)
5) Public or quasi public buildings/structures (fire/law enforcement
stations, community /homeowner facilities, water tower,
electrical distribution/stations lines, telephone relay equipment,
etc)
6) Recreational facilities (limited to non-commercial facilities)
7) Residential (day care or day care centers; dormitories or
fraternities (college); dwellings: single family; duplex; or multi-
family; manufactured home park (class "A" only); Nursing
homes and elder care; retirement home, etc)
8) Worship buildings (churches, synagogues, etc)
All other uses otherwise listed as permitted or conditionally permitted in the R-4
zoning classification may be considered as conditionally permitted uses in the Mixed
Residential POD.
(E) Property development standards for the Mixed Commercial POD
relative to (1) minimum lot area, (2) minimum lot width, (3) minimum yards,
(4) maximum building height, (5) permitted lot coverage, (6) off-street
parking, and (7) maximum fence height shall be consistent with Section
27.17.040, City of Kalispell Zoning Ordinance (KZO) unless otherwise
specified herein by the listed performance standards or by language within
the adopted neighborhood plan (see Section 27.22.120, KZO).
(F) Property development standards for the Mixed Professional POD
relative to (1) minimum lot area, (2) minimum lot width, (3) minimum yards,
(4) maximum building height, (5) permitted lot coverage, (6) off-street
parking, and (7) maximum fence height shall be consistent with Section
27,08.040, City of Kalispell Zoning Ordinance (KZO) unless otherwise
specified herein by the listed performance standards or by language within
the adopted neighborhood plan (see Section 27.22.120, KZO).
(G) Property development standards for the Mixed Residential POD
relative to (1) minimum lot area, (2) minimum lot width, (3) minimum yards,
(4) maximum building height, (5) permitted lot coverage, (6) off-street
parking, and (7) maximum fence height shall be consistent with Section
27.07.040, City of Kalispell Zoning Ordinance (KZO) unless otherwise
- 15 -
specified herein by the listed performance standards or by language within
the adopted neighborhood plan (see Section 27.22.120, KZO).
(N) DNRC shall require all proposed uses to be subject to
architectural review. All structures shall conform to the relevant City of
Kalispell Building Department regulations. Architectural consistency between
building types within each POD is desired. [Since development of this
property is likely to expand over several decades and styles change, some
flexibility in design is desirable and expected.] The covenants establish
architectural review authority for all proposed uses.
1) Landscape features are an important component of the
developed properties. Landscaping is intended to complement
the travel ways, parking lots, buildings, lots, and common
areas ( see 2.01 E (1), (2), and (3) of this Agreement).
2) Landscape materials shall be comprised of ornamental and
native plant species common to the general community.
Boulevard trees shall be consistent with the approved species
list of the City of Kalispell.
3) Exterior lighting along travel ways and parking lots should be
directed downward. Ornamental lighting along pathways and
parking lots is encouraged. Low intensity lighting (exterior) may
be appropriate to add architectural interest to certain features
of a building face or building signage. Lighting directed upward
to illuminate tree canopies or building overhangs may provide
attractive accents.
4) Signage on buildings is intended to be complimentary to the
building design and add architectural interest to the structure.
Common signage, including entrance signage, is intended to
be low profile and comprised of materials complimentary to the
building structures (see Section 2.01 E (3) of this Agreement).
5) Building design is an important consideration in helping to
define the quality of the built environment. Each land use POD
allows a mix of different land use types. Landscaping and
other common features will provide one form of community
linkage and identity. The other linkage will be building
architecture. In general terms, all commercial buildings should
seek to have architecturally enhanced facades and broken roof
and wall lines to minimize monotony of design. Expectations
of building design common to all land use types will include the
following components.
a. Exterior wall colors should harmonize
with the site and surrounding buildings. The pre-
dominate tone on building faces should tend
- 16 -
toward warm earthy hues, whether in the natural
patina or weathered color of the wall surface
itself or the color of the paint stain or other
coating. The color of concrete products on
building faces should be not be achieved from
painting the surface. The use of materials such
as wood, brick or stone for trim material is
encouraged.
b. Large, rectangular masses should
be avoided by incorporating offsets in the wall
and roof. A change in the plain of the walls,
changing the direction or providing some variety
in the roof form gives diversity and visual
interest. Facades greater than 120 feet in length
must exhibit a prominent shift in the wall.
c. Commercial buildings (non-residential)
should place an emphasis on entry. Entries
should be a prominent component of the building
face by providing an architectural covered or
recessed entry with modified roof accent and
increased usage of windows and trim.
d. All residential roofs must be pitched.
Commercial roofs may be pitched or flat.
Brightly colored roof material is prohibited as are
reflective metals. All roof mechanical systems
shall be shielded from view or incorporated into
architectural features. Roof design shall
incorporate architectural relief if building foot
print size is greater than 20,000 square feet.
e. Extensive use of windows is
encouraged to break up building planes or add
architectural interest to building facades or other
walls facing public view.
f. Franchise architecture is subject to
modification to achieve the sign, color, and
building style objectives set forth by this
Agreement.
g. Architectural elements of the front of
the building shall be incorporated into the back of
- 17 --
buildings when the back of the building is visually
accessible from U.S. Highway 93.
2.03 Ownership
The State of Montana may retain ownership of the Subject Property or leased
parcels for the development and use by third parties. This Agreement is binding on the
owners, successors and assigns inclusive of lessees of the property described in Exhibit
A attached hereto.
2.04 Relationship to Zoning Ordinance
Except as specifically modified or superseded by this Agreement and attached
drawings or the PUD Application of DNRC, the laws, rules, and regulations of the City of
Kalispell governing the use and development of land and buildings, including the Kalispell
Zoning Ordinance as it now exists or as amended, shall apply to the Subject Property.
2.05 Effectiveness
The provisions of this Agreement shall become effective simultaneously with
approval of the PUD Ordinance.
III. SITE CONDITIONS
3.01 Development
The Subject Property shall be developed in substantial compliance with the Section
36 Plan and as further described by the Record of Decision issued by DNRC on August
10, 2001 and as set forth in this Agreement.
3.02 Access
(A) Primary access to the Subject Property shall be as shown on the land
use map (Exhibit E) of the Plan.
(B) DNRC has completed a comprehensive traffic impact study, which
identifies all expected traffic impacts and proposals for mitigation.
(C) DNRC will obtain all required access permits from the Montana
Department of Transportation and/or Flathead County Road Department and
CITY prior to development of any uses that require access to a particular
public road.
(D) DNRC agrees to be responsible for all required traffic turn lanes, traffic
signals, and other regulatory signs and signals directly pertaining to ingress
- 18 -
and egress to and from U.S. Highway #93, West Reserve Drive, Stillwater
Road and Four Mile Drive indicated by the traffic study.
(E) All primary and secondary entrances shall be completed to CITY
standards prior to occupancy permits being issued for any site utilizing said
entrances for access.
(F) Emergency fire, ambulance, police and public vehicle access shall be at
all times available through said primary and secondary access without
impediment.
3.03 Internal Roadways and Sidewalks
(A) DNRC acknowledges that the development of the Subject Property
includes development, at DNRC's expense, of internal roadways providing
access to the lots within the PUD.
(B) ❑NRC agrees that the interior roadways within the PUD shall be
constructed to CITY standards with Curb, gutter, and sidewalks , in
accordance with the proposed Site drawings and applicable City Standards
for Design and Construction for local and collector streets. A paved
pedestrian/bike path will generally follow the collector roads .
(C) DNRC agrees that they will dedicate all internal streets and sidewalks to
the City of Kalispell upon completion.
3.04 Sewer and Water
(A) Sanitary sewer service to the Subject Area shall be accomplished by an
extension of the existing Municipal sewer system.
(B) Water service to the Subject Property shall be accomplished by
extension of the existing Municipal water system.
(C) If a well is used on the premises, it shall not in any way be connected to
the CITY water supply system without prior consent and approval by the City
of Kalispell.
(D) All sanitary sewer and water mains shall be designed and installed in
accordance with the City of Kalispell's Standards for Design and
Construction.
(E) All utility Infrastructure located within the subject Property shall be
dedicated to the public upon completion.
- 19 -
(F) DNRC agrees to obtain all necessary easements for the extension of
water and sewer to the Subject Property. In addition, DNRC will grant to
CITY any and all easements necessary for CITY to perform maintenance of
water and sewer lines installed pursuant to the Agreement.
(G) In the event that CITY requires installation of water and/or sewer lines
larger than those required to service the needs of DNRC as set forth in its
total Infrastrucure requirements delineated at the reference 2.01(13)(4), then
CITY shall pay only those costs associated with the. increased utility main
sizing or extension.
(H) In no event shall this Agreement be construed as to require CITY to
complete installation of Infrastructure and other improvements on the Subject
Property, or on any portion thereof, during any phase of development of the
Subject Property.
(1) Following completion of installation of the sewer and water lines on the
Subject Property by DNRC, it is agreed that the said utility lines shall be
maintained by CITY in accordance with CITY maintenance policy and
standards. However, service lines to individual buildings on site shall remain
under private ownership and shall be privately maintained.
3.05 Storm Water
(A) Storm Water retention, drainage, and disposal shall be designed in
accordance with regulations of the CITY and the Montana Department of
Environmental Quality, and such other City, State and Federal "storm water
requirements" as are in existence and made applicable to the property at the
time of the construction of any improvement.
(B) Storm Water will not be retained, treated or discharged off -site.
3.06 Site Grading
(A)
Prior to commencement of site grading, DNRC agrees to obtain an Air
Quality Construction and Demolition Permit from the Director of Public works,
and to comply with the terms and conditions of said Permit during
construction including hauling of material to and from the site.
3.07 Fire Suppression
(A) Prior to the Building Department issuing any permit for any foundation
or building within the PUD, the Fire Chief for CITY must certify that DNRC
- 20
has supplied a fire site access plan for the Subject Property and an
engineered internal fire suppression system for the buildings to be
constructed on the Subject Property, which will be in accordance with the
Uniform Fire Code and will be acceptable to the Fire Chief.
(B) DNRC agrees to install hydrants, water mains, supply and storage units
in accordance with City of Kalispell Standards and to obtain approval thereof
prior to construction from the City of Kalispell Fire Chief.
3.08 Landscaping
(A) In addition to the performance standards related to landscaping,
subdivision review will consider the landscaping and common area features
of all proposed development.
(B) Street trees will be placed at 40-foot intervals along both sides of the
internal roadways except where they immediately abut a parking lot island or
planter or abut building fronts. Street trees are to be a minimum of 2 -1/4 inch
caliper at planting.
(C) Landscaping along Highway 93 and West Reserve Drive will include
street trees placed at 50-foot intervals, which are a minimum of 2-'/4 inch
caliper at planting.
(D) The overall landscape plan shall be coordinated with the Kalispell Parks
and Recreation Director as to the exact size and location of the plantings and
the species lists. This plan shall be attached hereto as an addendum.
(E) All refuse areas shall be screened from public view.
IV. CITY SEWERMATER CONNECTION FEES
4.01 Connection Fee Schedule
(A) Connection fees for connection to the CITY Water and Sewer utility will
be determined in accordance with City Standards and fee schedules for
connection fees, in effect at the time of the application for a building permit.
(B) DNRC, or its successors and assigns which own the property at the time
of applying for a Building Permit, shall pay the connection fees associated
with the utility connections at the time of obtaining the Building Permit for
each structure. This provision is to assure that the fees are paid at the time
of applying for a Building Permit and is not to be construed as to prohibit
DNRC from requiring reimbursement or advance payment of the cost from
any potential tenant or purchaser.
21
(C) DNRC may be entitled to reimbursement of a portion of the costs of
installation and extension of water and sewer utilities from future users who
connect to extended water and sewer facilities. If DNRC anticipates the need
for reimbursement of cost, DNRC's engineer shall prepare a preliminary
design and report that details the proposed facilities and the estimated
proposed reimbursable costs and will submit said design and report to the
CITY for review and concurrence in advance of construction. Costs shall be
recovered through a developer's extension agreement and will be subject to
the following conditions.
1) No reimbursement will be allows for any costs
associated with meeting the utility requirements for
development of the Subject Property. These costs shall be
determined by DNRC's engineer and shall be submitted for
review and concurrence by the Director of Public Works. Said
costs shall be the actual costs of construction, inclusive of
engineering and inspection costs, and shall be submitted as
specified within thirty (30) days of substantial completion of the
work.
2) No reimbursement will be allowed for any costs of
extension of water and sewer facilities, or increases in size
thereof, for which the CITY has agreed to provide
reimbursement as described elsewhere in this agreement.
3) Costs associated with extensions of water and sewer
facilities to future users shall be determined by DNRC's
engineer and shall be provided to the Director of Public Works
for review and concurrence that said costs are appropriate for
reimbursement. Said costs shall be the actual costs of
construction, inclusive of engineering and inspection costs, and
shall be submitted as specified within thirty (30) days of
substantial completion of the work.
4) A developer's extension agreement shall be
prepared by DNRC's engineer and submitted to the Director of
Public Works for review and concurrence. The agreement shall
identify the costs to be reimbursed, the properties benefitted by
the extended utilities, and the proportionate cost to be
reimbursed by each benefitted property upon connection to the
extended utilities. The agreement shall identify the
recommended method for apportioning reimbursable costs
between the benefitted properties. Said method shall be the
same for all properties. The term of this agreement shall not
exceed a period of seven (7) years.
22
5) Upon concurrence, the Director of Public Works shall
submit the proposed developer's extension agreement to the
Kalispell City Council for approval.
6) Future extensions by the CITY of utility facilities
covered by this PUD agreement shall not be subject to the cost
reimbursement outlined in this section.
V. AMENDMENT OR MODIFICATIONS OF AGREEMENT
5.01 Amendment or Modification Procedures
This Development Agreement may be amended or modified only by application of
DNRC, in accordance with the procedures set forth herein. Applications for amendment or
modification may be made to the City of Kalispell Site Review Committee.
(A) Modifications of this agreement and the attachments hereto which are
deemed by said Site Review Committee to be minor modifications shall
require only the consent of the Site Review Committee and shall not require
the consent of the City Council or any other public agency.
(B) All amendments and modifications of this Agreement, other than minor
• modifications, shall require the approval of the City Council.
(C) All applications for modifications or amendments of the Agreement shall
be filed with the Site Review Committee and the Site Review Committee shall
promptly, within 10 days, determine whether the modifications are major or
minor.
(D) The Site Review Committee shall make its determinations with respect
to any application for minor modifications subject to this Section within 15
days after it determines the application to be subject to said minor
modification.
(E) If the amendment or modification requested is of such a nature as to
require approval of the City Council, the Site Review Committee shall refer
the matter to the City Council within fifteen (15) days after it determines the
matter to require Council review.
(F) DNRC may appeal the decision of the Site Review Committee to the
City Council, who may affirm, reverse or modify the site Review Committee
decision.
0 - 23 -
VI. MISCELLANEOUS
6.01 Severability
In the event that any provisions of this Agreement shall be deemed, decreed,
adjudged or determined to be invalid or unlawful by a court of competent jurisdiction, such
provision shall be sever able and the remainder of this Agreement shall continue to be of
full force and effect.
6.02 Recordation
This Agreement shall be recorded in the Office of the Flathead County Clerk and
Recorder.
6.03 Entire Agreement. Primacy
This Agreement and the attachments, exhibits, plans, and reports referenced herein
constitute the entire Agreement between the parties and may only be amended as set forth
herein. In the event during the term of this Agreement, there is a variance between the
provisions of this Agreement and any drawing or document submitted prior to execution of
this Agreement, this Agreement shall take precedence.
6.04 Integration
This Agreement, together with any attached exhibits and any addenda or
amendments signed by the parties, integrates all negotiations and previous agreements
between the parties and supercedes any other written or oral agreements or
representations between the parties. This Agreement can be modified only in writing,
signed by all parties hereto.
6.05 Binding Effect
This Agreement shall be binding upon and inure to the benefit of the respective
parties, heirs, successors and assigns.
Dated this 18 day of , 2001.
DEPARTMENT OF NATURAL. RESOURCES
Jon A. D hlberg
Area Manager, Northwestern Land
- 24 -
CITY OF KALISPELL
By- - A
Chris A. Kukulski
City Manager
STATE OF MONTANA }
) ss.
County of Flathead }
Attest:
By: a
Thefesa White
City Clerk
On this _ZE day & , 2001, before me the undersigned, a Notary Public
for the State of Montana, personally appeare known to
me to be the authorized representative for the Department of N ral Resources, the
person whose name is subscribed to the foregoing instrument and acknowledged to me
that he executed the same on behalf of tho id eptity_
?, � �a•ssaLP4
STAEIt6NTANA }
) ss.
County of Flathead )
Notary Public forthe
Residing at
My Commission Expi
of Montana
On this 11"ay of �-2001, before me the undersigned, a Notary Public
for the State of Montana, personally appeared Chris A. Kukulski, known to me to be the
City Manager for the City of Kalispell, and Theresa White, the City Clerk for the City of
Kalispell, the persons whose names are subscribed to the foregoing instrument and
acknowledged to me that they executed the same on behalf of the City of Kalispell.
Notary Public for the State of Montana
Residing at% ;
My Commission Expires
- 25 -
Exhibit A
Area to be Annexed
That portion of Section 36, Township 29 North, Range 22 West, Principal
Meridian, Flathead County, Montana described as follows:
The Southwest 1/4, the Northwest 1/4 and that portion of the Northeast 1/4 lying
westerly of the westerly right-of-way line of U.S. Highway No. 93 as shown on
Federal Aid Project Nos. F 5-3(32)115 and F 5-3(24)115, excepting therefrom the
Southwest 1/4 of the Southwest 1/4 of the Northwest 1/4 and the Northwest 1/4 of
the Northwest 1/4 of the Southwest 1/4 all in Section 36, Township 29 North,
Range 22 West, containing 454.4 Acres of Land, more or less.
Exhibit B
Mixed Commercial POD and B-5 Zoning
That portion of the Northeast 1/4 and the Southeast 1/4 of the Northwest 1/4 of
Section 36, Township 29 North, Range 22 West, Principal Meridian, Flathead
County, Montana described as follows:
Commencing at the southeast corner of the Northeast 1/4 of Section 36, Township
29 North, Range 22 West; thence along the east -west mid -section line of said
Section 36, North 89°59'28" West 135.87 feet to the POINT OF BEGINNING of
the parcel being described; thence continuing along said east -west mid -section line
of said Section 36, North 89°59'28" West 3560.89 feet, more or less, to the
southeasterly boundary of the proposed U.S. Highway No. 93 bypass around the
City of Kalispell; thence along said southeasterly boundary of said bypass the
following three courses, North 57°41'00" East 1637.57 feet, more or less, to the
beginning of a 2600.00 foot radius curve, more or less, to the left concave
northwesterly, along said curve through a central angle of 15°45'40", more or less,
an arc length of 715.22 feet, more or less, and North 41 °55'20" East 663.25 feet,
more or less to the easterly boundary of the Northwest 1/4 of the Northeast 1/4 of
said Section 36; thence along said easterly boundary of said aliquot part North
00004'18" West 415.52 feet, more or less to the northwesterly boundary of the
proposed U.S. Highway No. 93 bypass around the City of Kalispell; thence along
said northwesterly boundary of said bypass the following two courses: North
41 °55'20" East 151.97 feet, more or less, to the beginning of a 1288.00 foot radius
curve, more or less, to the right, and along said curve through a central angle of
21 °30'52", more or less, an are length of 483.64 feet, more or less, to the northerly
boundary of the Northeast 1/4 of said Section 36; thence along said northerly
boundary of said aliquot part, North 89°57'39" East 325.31 feet, more or less, to
the westerly right-of-way line of U.S. Highway No. 93 as shown on Federal Aid
Project Nos. F 5-3(32)115 and F 5-3(24)115; thence along said westerly right-of-
way line of said U.S. Highway No. 93 the following seven courses: South
00°02'21" East 30.00 feet, North 89°57'39" East 117.29 feet, South 01026'09"
West 79.93 feet, North 89048'03" East 287.02 feet, South 00°09'01 " West
2291.03 feet, South 14°20'01." West 61.92 feet and South 00°07'52" West 190.13
feet to the Point of Beginning.
Exhibit B-I
Expanded Mixed Commercial and B-5 Zoning
That portion of the Northeast 1/4 and the Southeast 1/4 of the Northwest 1/4 of
Section 36, Township 29 North, Range 22 West, Principal Meridian, Flathead
County, Montana described as follows:
Commencing at the southeast corner of the Northeast 1/4 of Section 36, Township
29 North, Range 22 West; thence along the east -west mid -section line of said
Section 36, North 89°59'28" West 135.87 feet to the POINT OF BEGINNING of
the parcel being described; thence continuing along said east -west mid -section line
of said Section 36, North 89°5928" West 3560.89 feet, more or less, to the
southeasterly boundary of the proposed U.S. Highway No. 93 bypass around the
City of .Kalispell; thence along said southeasterly boundary of said bypass, North
57°41'00" East 1242.47 feet, more or less, to the westerly boundary of the
Northeast 1/4 of said Section 36; thence along said westerly boundary of said
aliquot part, North 00°05'34" West 1983.74 feet to the northwest corner thereof;
thence along the northerly boundary of said aliquot part, North 89°57'39" East
2133.52 feet to the to the westerly right-of-way line of U.S. Highway No. 93 as
shown on Federal Aid Project Nos. F 5-3(32)115 and F 5-3(24)115; thence along
said westerly right-of-way line of said U.S. Highway No. 93 the following seven
courses: South 00°022.1 " East 30.00 feet, North 89115739" East 117.29 feet, South
01026'09" West 79.93 feet, North 89"48'03" East 287.02 feet, South 00°09'01"
West 2291.03 feet, South 14°20'01" West 61.92 feet and South 00°07'52" West
190.13 feet to the Point of Beginning.
Exhibit C
Mixed Professional POD and R-5 Zoning
That portion of the Northwest 1/4 and the Northeast 1/4 of Section 36, Township
29 North, Range 22 West, Principal Meridian, Flathead County, Montana
described as follows:
BEGINNING at the northwest corner of the Northwest 1/4 of Section 36,
Township 29 North, Range 22 West thence along the northerly boundary of said
aliquot part, North 89'57'13" East 2647.92 feet to the northwest corner of the
Northeast 1/4 of said Section 36; thence along the northerly boundary of said
aliquot part, North 89°5739" East 1808.21 feet, more or less, to the northwesterly
boundary of the proposed U.S. Highway No. 93 bypass around the City of
Kalispell, said point being the beginning of a 1288.00 foot radius curve, more or
less, concave southeasterly having a radial bearing of South 26°33'48" East, more
or less; thence along said northwesterly boundary of said bypass the following two
courses: along said curve through a central angle of 21 °30'S2", more or less, an
are length of 483.64 feet, more or less, and South 41 °55'20" West 151.97 feet,
more or less, to the easterly boundary of the Northwest 1/4 of the Northeast 1/4 of
said Section 36; thence along said easterly boundary of said aliquot part, South
00'04' 18" East 415.52 feet, more or less, to the southeasterly boundary of the
proposed U.S. Highway No, 93 bypass around the City of Kalispell; thence along
said southeasterly boundary of said bypass the following three courses, South
41°55'20" West 663.25 feet, more or less, to the beginning of a 2600.00 foot
radius curve, more or less, to the right concave northwesterly, along said curve
through a central angle of 15 °45'40", more or less, an arc length of 715.22 feet,
more or less, and South 57°41'00" West 1637.57 feet, more or less, to the
southerly boundary of the Northwest 1/4 of said Section 36; thence along said
southerly boundary of said aliquot part North 89°59'28" West 935.63 feet to the
southeast corner of the Southwest 1/4 of the Southwest 1/4 of the Northwest 1/4 of
said Section 36; thence along the easterly and northerly boundaries of said aliquot
part the following two courses: North 00°04'33" West 661.55 feet and South
89°59'42" West 662.18 feet to the westerly boundary of said Northwest 1/4 of
said Section 36; thence along said westerly boundary of said aliquot part, North
00°04'13" West 1984.17 feet to the Point of Beginning.
Exhibit C-1
Reduced Mixed Professional POD and R-5 Zoning
That portion of the Northwest 1/4 of Section 36, Township 29 North, Range 22
West, Principal Meridian, Flathead County, Montana described as follows:
BEGINNING at the northwest corner of the Northwest 1/4 of Section 36,
Township 29 North, Range 22 West; thence along the northerly boundary of said
aliquot part, North 89°57'13" East 2647.92 feet to the northeast corner thereof;
thence along the easterly boundary of said aliquot part, South 00°05'34" East
1983.74 feet, more or less, to the southeasterly boundary of the proposed U.S.
Highway No. 93 bypass around the City of Kalispell; thence along said
southeasterly boundary of said bypass, South 57°41'00" West 1242.47 feet, more
or less, to the southerly boundary of said Northwest 1/4 of said Section 36; thence
along said southerly boundary of said aliquot part North 89°59'28" West 935.63
feet, more or less, to the southeast corner of the Southwest 114 of the Southwest
1/4 of the Northwest 1/4 of said Section 36; thence along the easterly and
northerly boundaries of said aliquot part the following two courses: North
00°04'33" West 661.55 feet and South 89"59'42" West 662.18 feet to the
westerly boundary of said Northwest 1/4 of said Section 36; thence along said
westerly boundary of said aliquot part, North 00°04'13" West 1984.17 feet to the
Point of Beginning.
Exhibit D
Mixed Residential POD and R-4 Zoning
That portion of the Southwest 1/4 of Section 36, Township 29 North, Range 22
West, Principal Meridian, Flathead County, Montana described as follows:
The Southwest 1/4 of Section 36, Township 29 North, Range 22 West, excepting
therefrom the Northwest 1/4 of the Northwest 1/4 of the Southwest 1/4 of said
Section 36.
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EXHIBIT "'F"
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
THIS DECLARATION, made this day of , 2001,
by State of Montana/Department of Natural Resources and Conservation,
hereinafter referred to as "DECLARANT',
WITNESSETH;
That WHEREAS, State of Montana/Department of Natural Resources and
Conservation is the owner of real property situated in Flathead County,
Montana, described herein on Exhibit "A", (Note: herein described as All
Section 3E property, except the ballfields zoned P-1).
That WHEREAS, Declarant is desirous of subjecting all of said property
hereinabove described on Exhibit "A" to the Conditions, Covenants and
Restrictions hereinafter set forth, each and all of which is and are for the
benefit of said property and for each owner thereof and shall inure to the
benefit and pass with said property, and each and every parcel thereof, and
shall apply to and bind the successors in interest, and any owner thereof;
NOW, THEREFORE, the Declarant, being the owner of all of the real
property above -described, hereby declares that the said real property is, and
shall be, held, transferred, sold and conveyed, subject to the conditions,
restrictions, covenants and reservations hereinafter set forth; and
All persons or corporations who now or shall hereafter acquire any
interest in and to the above -described property shall be held to agree and
covenant with the owner of any of the property hereinabove described, or any
parcel thereof, and with their heirs and successors and assigns, to conform to
and observe the following covenants, restrictions, and conditions as to the use
thereof, and as to the construction of dwellings and improvements thereon.
ARTICLE 1. DEFINITIONS
Section 1 . "Declarant" herein mentioned is State of Montana/Department
of Natural Resources and Conservation.
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Section 2, "Association" shall mean the Property Owners Association,
consisting of all owners of the property described in Exhibit "A„
Section 3: "Owner" shall mean and refer to the person or persons
owning a parcel of the land described in Exhibit "A" in fee simple, absolute,
individually or as an owner in any real estate tenancy relationship recognized
under the laws of the State of Montana, including a unit ownership pursuant to
a recorded unit ownership declaration.
Section 4: "Common Area" shall mean all real property owned or
maintained by the Association for the common use and enjoyment of others,
including but not limited to parks, trails, roadways, easements, and recreational
facilities.
Section 5, "Lot" shall mean any plot of land shown upon any recorded
subdivision plat or map of the property.
Section 6: "Vote" or "voter", shall mean one vote per lot.
ARTICLE 11, ARCHITECTURAL REVIEW COMMITTEE
Section 1 . Members/Terms: The Architectural Review Committee shall
consist of three individuals appointed by the Board of Directors of the Property
Owners Association from owners within the property described in Exhibit "A"
and shall be known as the Architectural Review Committee hereinafter referred
to as Architectural Review Committee. The members of the Architectural
Review Committee may be appointed and removed at the sole discretion of the
Board of Directors of the Property Owners Association.
Section 2. Function of the Architectural Review Committee: All owners
intending to construct any structure whatever upon any lot, shall first submit
their plans and specifications, in writing, to the Architectural Review
Committee. All plans for the construction of any building, signage, private road
or driveway, fence, wall or other structure to be erected upon any lot and the
proposed location thereof upon any lot and any change, after approval -thereof,
any remodeling, reconstruction, alteration or addition to any building, road,
driveway, or other structure upon any lot in said premises, shall require written
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approval of said Architectural Review Committee. Before beginning the
construction of any building, road or driveway, parking lot, fence, wall or other
structure whatsoever, or remodeling, reconstruction or altering such road,
driveway or structure upon any lot, the person or persons desiring to effect,
construct or modify the same shall submit to the Architectural Review
Committee, a complete set of plans and specifications thereof including front,
side, and rear elevations, floor plans for each floor and basement, exterior color
schemes, building materials, a block or plot plan indicating and fixing the exact
location of such structure or such altered structure on the grading plan if
requested. A reasonable fee shall be paid to the Architectural Review
Committee with such plans, said fee to be set by said Committee. (Preliminary
sketch of plan may be submitted prior to the execution of detailed drawings.)
In the event the proposed improvement shall be one for repainting or
redecorating the exterior of such structure without remodeling or changing it,
or making additions thereto, it shall only be necessary to file one color scheme
of such proposed work and have the same approved prior to the
commencement of such work.
Section 3. Approval by Architectural Review Committee: Approval by
the Architectural Review Committee of all exterior plans and specifications must
be submitted for approval in writing, and shall not be deemed to be a waiver by
the Architectural Review Committee of the right to object to any of the features
or elements embodied in such plans or specifications if and when the same
features or elements are embodied in any subsequent plans or specifications
submitted for approval for use on other building sites. In the event the
Architectural Review Committee fails to act within thirty (30) days after the
proposed plans and specifications of any structure have been submitted, in
writing, or in any event, if no suit to enjoin the construction has been
commenced prior to the completion of an entire dwelling, no specific approval
shall be required for such structure and the pertinent provisions to the
Declaration shall be deemed to have been fully complied with. The
Architectural Review Committee may, at any time, inspect any building or
property located in said subdivision for the purpose of determining whether the
exterior of said building conforms to these covenants. Approval of such plans
and specifications shall be evidenced by written endorsement on such plans or
specifications, a copy of which shall be delivered to the owner or owners of the
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lot upon which the prospective building, road, driveway or other structure is
contemplated, prior to the beginning of such construction. No changes or
deviations in or from such plans and specifications as approved, shall be made
without the prior written consent of the Architectural Review Committee, and
construction shall be completed within one (1) year from date of approval of
said plans and specifications.
Structural engineering shall be the responsibility of the owner. The
Architectural Review Committee may waive such provisions contained in these
covenants as they deem appropriate. In passing upon any plans and
specifications submitted to it, the Architectural Review Committee shall
consider:
a) Suitability of the improvement and materials of which it is to
be constructed to the site upon which it is to be located;
b) The nature of the adjacent neighboring improvements;
c) The quality of the materials to be utilized in any proposed
improvements; and
d) The effect of any proposed improvement on the adjacent or
neighboring property.
In passing on any plans and specifications, it shall be an objective of the
Architectural Review Committee to make certain that no improvement will be
so similar or so dissimilar to others in the vicinity that values, monetary or
aesthetic, will be impaired, and to maintain for the benefit of the Architectural
Review Committee and all subsequent individual lot owners, the nature
character of the land and to require that all man-made structures blend into the
natural background rather than stand out against it.
The Architectural Review Committee shall consider the guidelines set
forth in Articles III and IV and the Planned Unit Development Agreement in its
review of plans and specifications:
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ARTICLE Ill. RESTRICTIONS AS TO LAND USE
The land described in Exhibit "A" is subject to the land use restrictions as
follows:
Section 1. Mixed Commercial: All that property described in Exhibit
"B"PtB-1 " that is zoned under Kalispell Zoning Category as PUD "Mixed
Commercial" is subject to the land use conditions and regulations of the B-5
Zoning Classification of the Kalispell Zoning Ordinances, as amended from time
to time; and, is further subjected to the provisions of the Planned Unit
Development Agreement between State of Montana/Department of Natural
Resources and Conservation and the City of Kalispell, dated the day of
, 2001.
Section 2. Mixed Professional: All that property described in Exhibit
"C"/"C-1 " that is zoned under Kalispell Zoning Category as PUD "Mixed
Professional" is subject to all the land use conditions and regulations of the R-5
Zoning Classification of the Kalispell Zoning Ordinances, as amended from time
to time; and, is further subjected to the provisions of the Planned Unit
Development Agreement between State of Montana/Department of Natural
Resources and Conservation and the City of Kalispell, dated the day of
2001.
Section 3. Mixed Residential: All that property described in Exhibit "D"
that is zoned under Kalispell Zoning Category as PUD "Mixed Residential" is
subject to all the land use conditions and regulations of the R-4 Zoning
Classification of the Kalispell Zoning Ordinances, as amended from time to time;
and, is further subjected to the provisions of the Planned Unit Development
Agreement between State of Montana/Department of Natural Resources and
Conservation and the City of Kalispell, dated the day of ,
2001.
ARTICLE IV. MISCELLANEOUS RESTRICTIONS
Section 1. Utilities: All future utilities, including but not limited to power,
electric, and telephone shall be underground.
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Section 2. Continuity of Construction: All structures shall have the
exterior completed within twelve (1 2) months of commencement of
construction unless an exception is granted in writing by the Architectural
Review Committee.
Section 3. Temporary Structures: No trailer, basement, tent, shack,
garage, barn or other outbuilding erected or placed on any lot shall at any time
be used or occupied on a permanent basis. Any of the aforementioned
structures shall not be erected at any time without the written approval of the
Architectural Control Committee.
Section 4. Garbage: No lot shall be used or maintained as a dumping
ground for rubbish. Trash, garbage or other waste, shall be kept in covered,
reasonable airtight containers. Such containers must be kept in a garage or
other enclosed area.
Section 5. Nuisance: No noxious or offensive activity shall be carried on
nor shall anything be done or permitted which shall constitute a public nuisance
therein.
ARTICLE V. PROPERTY OWNERS ASSOCIATION
Section 1 . Non-profit Corporation: The owners of the property set forth
in Exhibit "A" shall form a Montana Non-profit Corporation and adopt necessary
By -Laws known as "The Property Owners Association" hereinafter referred to
as Association. The Association to be formed by Declarant shall have as
members all owners as defined herein. Membership in the association shall be
appurtenant to and shall not be separated from the ownership interest.
Members shall participate in the manner prescribed by the Articles and By -Laws
of the Association, and resolutions of the Association's Board of Directors. The
Association's purpose is to provide services and facilities to the owners as it
may determine.
Every owner who is a member of the Association shall have a right and
easement of enjoyment in and to the common area which right shall be
appurtenant to and shall pass along with the owner's title subject to the
following provisions:
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a. The right of the Association to charge reasonable admission and
other fees for the use, care, maintenance and improvement of all of the
common area, as more particularly described as "Common Area" on the
various subdivision plats.
b. The right of the Association to suspend the use or enjoyment of the
common area or facilities and services provided directly or indirectly by
it for any period during which any fee or assessment against an owner's
interest remains unpaid, or for the continued violation of the Articles and
By -Laws of the Association or the resolutions of the Association's Board
of Directors.
C. Any Association member may delegate the right of enjoyment of
the common area to members of the member's family, tenants, contract
purchasers or guests.
Section 2. Purpose: The purpose of the Property Owners Association is
to adopt rules and regulations for the use and maintenance of the common
areas within the property described on Exhibit "A". Common areas may include
parking lots, parks and other miscellaneous common areas, playground
equipment, trail system, highway boulevard and signage. The Property Owners
Association shall establish the annual and special assessments for the
maintenance of the common areas and be responsible for the appointment of
the members of various Architectural Review Committees.
ARTICLE VI. ASSESSMENTS/COLLECTION
Section 1. Assessment/Creation of Lien: Each owner (other than
Declarant) by accepting deed to or land contract for a lot within this
subdivision, whether or not specifically so expressed in said conveying
instrument, shall be deemed to covenant, agree, and shall be bound to pay
assessments established pursuant to the provisions of these covenants, which
will include regular annual assessments and special assessments for general
Association operating funds, capital improvement or water use. Assessments,
whether special or regular, may be collected on a monthly, quarterly or yearly
basis, together with interest, costs and reasonable attorney's fees incurred in
the enforcement of the provisions of this article.
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Section 2. Declarant's Assessment/Date of Commencement of
Assessment: Pending sale of each lot, Declarant shall be responsible for all
assessments on said unsold lots as same become due. At sale, assessments
shall be prorated as of date of sale. Declarant remaining responsible for
assessments to date of sale and the lot purchaser being responsible thereafter.
All such allocations shall be based on a 365 day year.
Section 3. Lien: Assessments as provided herein shall be a charge on
each owner's lot and shall be a continuing lien against said lot and said
assessment, together with any interest, costs, and reasonable attorney fees
incurred in collection same shall also be a personal obligation of the owner of
the lot at the time when said assessment became due.
Section 4. Purpose: Assessments for the purpose of common area
maintenance shall be specifically allocated for that purpose. General
assessments assessed against owners of the lots shall be for the general
purpose of maintaining Association property. Assessments shall be used to
administer the covenants to maintain and improve quality of the common area.
Section 5. Regular Assessments: The Board of Directors shall levy
assessments authorized by a majority of the Association to cover the annual
Association operating budget. The Board of Directors shall further establish an
assessment as and for a fund for the maintenance of the road and other
common area. Said assessments shall be billed and collected over the same
term and at the same time. The first year for which annual assessments shall
be established and collected shall be established by the Board of Directors.
Section 6. Uniform Rate: Common area assessments as well as regular
and special assessments, shall be fixed at a uniform rate for all residential lots
involved. Assessments shall be divided by the number of member lots in the
Association. Each lot shall bear its prorata share.
Section 7. Assessment Period/Due Date: Assessments as provided
herein shall commence as against all lots as determined by the Board of
Directors and the Board of Directors shall fix the amount of the regular annual
assessment against each lot on an annual basis.
Written notice of the applicable annual assessment shall be sent to every
owner subject thereto.
Section 8. Special Assessments: Special Assessments to include
common area maintenance fund as herein provided, may be set at the regular
annual meeting or upon any special meeting called for said purpose. In the
event of special meeting, written notice to each of the members of the
Association must be given no less than 30 or more than 50 days prior to said
meeting. Presence of 50% or more of the members of the Association at any
meeting called for the purpose of establishing any regular or special assessment
shall constitute a quorum, and at said meeting a majority of said quorum shall
control.
Section 9. Nonpayment/Remedies: Any assessment not paid within 30
days after the due date shall bear interest from the due date at the legal rate set
by Montana law on a District Court Judgment. The Association may bring an
action at law against the owner of a lot in default as and on the basis of an
account due. Said assessment obligation shall be a personal obligation. In
addition to the amount of the assessment and any interest thereon, in the event
of any such suit the Association shall be entitled to all attorney's fees incurred
and costs. Any Judgment shall be entitled to all rights and legal consideration
as any Judgment received under the laws of Montana.
No owner subject to assessment may waive or otherwise escape liability
for the assessment herein provided by nonuse of the common area or
abandonment of his lot.
In addition to the provisions for suit and collection as hereinabove set
forth, the Association may suspend a delinquent owner's voting rights at
Association meetings, the right to use, enjoy and have the benefit of the
common area. In the event of failure to pay common area maintenance
assessments, the Association may terminate the right to ingress, egress and/or
utilization of the common facilities.
Section 10. Subordination or Assessment Lien: The lien of any
assessment provided herein shall be subordinate to any purchase money
security interest for a lot acquired herein or construction lien for the
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construction of a resident herein when said lien secures the lender's obligation
for said acquisition or construction. In the event, however, of foreclosure of
said lien, the Association shall not be required nor be under any obligation to
provide access, or any of the other amenities of the common area to any
subsequent purchaser, either through default or otherwise, until all past due
obligations owed are paid in full. The provisions of this paragraph may be
modified or waiver in their entirety at the discretion of the Association.
ARTICLE VII. ENFORCEMENT
Section 1. Interested Parties: Any owner shall have the option and right
to enforce, by any proceeding at law or in equity, all restrictions, conditions,
covenants, reservations and charges now or hereafter imposed by the
provisions of this Declaration. The method of enforcement may include
proceedings to enjoin the violation, to recover damages, or both. Failure by any
owner to enforce any such provision shall in no event be deemed a waiver of
the right to do so thereafter.
Section 2. Severability: Invalidation of any one of these covenants or
restrictions by judgment or court order, shall in no wise affect any other
provision which shall remain in full force and effect.
ARTICLE Vill. TERM
The provisions of these protective covenants are to run with the land and
shall be binding upon all parties and all persons claiming under them, for a
period of twenty (20) years from the date they are recorded, after which time
said protective covenants shall be automatically extended for successive
periods of ten (10) years unless an instrument executed by the owners of
seventy-five percent (75%) of the land described in Exhibit "A", has been
recorded agreeing to terminate said protective covenants or change them in
whole or in part. Each parcel of land, regardless of size or of any deeded
ownership interest in a condominium unit shall be entitled to one vote under
this Article.
IN
ARTICLE IX. AMENDMENT
This Declaration may be amended by an instrument signed by the owners
of Seventy-five Percent (75%) of the land described in Exhibit "A", which
instrument has been recorded, agreeing to such amendment. Each parcel of
land, regardless of size or of any deeded ownership interest in a condominium
unit shall be entitled to one vote under this Article.
IN WITNESS WHEREOF, the Declarant has executed this instrument the
day and year first above written.
STATE OF MONTANA/DEPARTMENT OF
NATURAL RESOURCES AND CONSERVATION
in
STATE OF MONTANA )
ss.
County of Flathead )
On this day of , 2001, before me, the
undersigned, a Notary Public for the State of Montana, personally appeared
, known to me to be the of State of
Montana/Department of Natural Resources and Conservation, the Corporation
whose name is subscribed to the within instrument and acknowledged to me
that such Corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
Notarial Seal the day and year in this certificate first above written.
Notary Public for the State of Montana
(Seal) Residing at , Montana
My commission expires
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