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11/26/02 Beard to Kukulski/ReimbursementDEVELOP MENT, LLC Construction er' Development Services RECEIVED Ll�•LLL CITY CLERK{ November 26, 2002 Mr. Chris Kukulski City of Kalispell PO Box 1997 Kalispell, Montana 59901 Re: Mountain View Reimbursement Via: Email and US Mail Dear Chris: This letter is in response to your letter of November 21st concerning the reimbursement and other issues at Mountain View Plaza. Please allow me to respond: Your opinion that I am seeking to resolve several disparate issues is indeed correct, but I was working under the impression that seeking resolution to each parties' wants and needs was a good thing. As I recall, the fact that you offered us a more agreeable sign allowance in return for our pledging a 2 acre fire station tract did not seem so disparate at the time. It is either naive or disingenuous of you to suggest that some level of quid pro quo has not been present since our first meeting almost 2 years ago. To wit, your subsequent statement that you placed my sign amendment consideration on hold while we worked on the offsets is fairly indicative of how this process has worked. Following the receipt of your letter, I was apprised that my sign request has in fact been forwarded to the council for consideration as a major amendment. By all means, we look forward to their review and are ready to answer any questions or concerns they may have. Regarding the utility reimbursement issue itself, I'm afraid we are nowhere near an agreement. I will respond to the specific issues you raise, but until the city experiences a significant shift as to the genesis of this entire process we will not be able to make any real progress. As I understand your argument, the city regards the PUD Agreement and attending documents as "ground zero" so to speak for our discussions. This is not true. Our engineer's original utility requirements for the property and intended improvements were presented to the city for acceptance prior to any substantial negotiations. My very specific point is this: the city would not enter into the PUD Agreement until we amended and re -amended the Design Report to encompass the larger lines, the Highway 93 loop, and other alterations as requested by the city during the review process prior to completing the PUD. You now take the 2121 Sage Road, Suite 380 Houston, Texas 77056 tel 713 266 9200 fax 713 266 9278 position that we are not eligible for the reimbursements we have all along expected and are now requesting? At best this philosophy is misguided, at worst its dishonest. The costs associated with upsizing the water and sewer lines and the requirement that we loop the water system on the west side of Highway 93 are by all means reimbursable improvements to your city's system. We are more than prepared to provide examples of similar developments with more service connections throughout the city where loops have not been required. We are also interested in hearing from the city as to how a 12 inch water main along 4000 feet of a previously un-served 600 acre tract with highway frontage is not an improvement to the city's utility system. As for your denial of engineering and inspection costs, let me point out that this is a pro-rata percentage of the overall cost of the project in relation to the upsizing cost. Not only does the requested amount equal a frlacti on of the overall -net, I Wo„ld say that this portion of the reimbursement figure is so common and customary in similar situations that your own PUD document, Section 4.01(C)(1) contemplates these costs: "...inclusive of engineering and inspection costs..." In wrapping up your reimbursement points, you mention our late submittal and consequently your willingness to extend the date for future negotiations. Thanks. You should note that my first letter to you regarding the reimbursement was February 51h, 2002. It states that we are ready to proceed with the process and have calculated the reimbursement figures. It also requests that the city attorney provide us with a standard form of agreement. I've yet to receive any document. You also point out that substantial completion was designated as April 23' . I am unsure as to whether or not your staff has actually accepted the improvements; if so, please forward the acceptance letter to my attention. Regarding the $50,000 payment in lieu of the 2 acre pad, all of these issues do indeed have significance to one another and, as I recall, the idea of the trade-off was your idea. In fact, I believe this payment was mentioned during council's preliminary plat approval of the remaining parcels not long ago. However, I apologize for perplexing you so; we will grant the city the 2 acre pad site, per the requirements of the PUD Agreement. This pad is located directly behind the future retail between Target and Home Depot and adjacent to the detention pond. It will not exceed a length to width ratio of 2 to 1, and it will not have more than a 1% grade change throughout the pad. In closing, allow me to respond to your heartfelt promise to continue working together. From the very beginning of this process you and some of your staff have continuously and consistently neglected to work with us on a good -faith basis. Quite frankly, I'm afraid our only option to shed light on this situation and to receive any sort of fair treatment will eventually be litigation. I believe the mayor, the city council, and the constituents of your officials have a right to know how their city government deals with the public. I am more than willing to meet with you and your staff to discuss these issues. And perhaps your engineer could be with you as well. You may want to remind your staff that I travel a much greater distance at a much greater cost than their stroll down the hall. Furthermore, any additional conversation between me or any of my representatives and any city staff will be need to be recorded in some fashion. Perhaps you could arrange that prior to our next meeting. Please forward this letter to the mayor and your council with the invitation to contact me at any time to discuss our issues. Sincerely, Stan Beard for Mountain View, LP cc: Scot% Desk -ins, email Allen Crosswell, email George Craft, email Mike Fraser, email