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Staff Report/Proposed Amendments dated 02/02/04
Tri-City Planning Office 17_Second Street East - Suite 211__ Kalispell, Montana 59901 Phone: (406) 751-1850 Fax: (406) 751-1858 tricity@centurytel.net REPORT TO: Kalispell Mayor and City Council FROM: Thomas R. Jentz, Director Chris A. Kukulski, City Manager SUBJECT Proposed Amendments to Spring Prairie PUD MEETING DATE: February 2, 2004 council meeting Goldberg Properties, Inc. received approval by the Kalispell City Council for 5 major amendments to the Spring Prairie PUD Agreement on December 1, 2003. These amendments included such issues as the number of access points onto Highway 93, the maximum number of free standing signs and allowing gaming as an incidental use. At the same time, Goldberg Properties had requested 13 minor amendments to the PUD Agreement. Minor amendments, as you remember, are reviewed and acted upon by site review with an appeal process available to the developer. Those 13 minor amendments were presented to the city council at an information session in early November and approved by site review in late November. The amendments have not to date been officially incorporated into the Spring Prairie PUD Agreement. The council has before you an amended Spring Prairie PUD Agreement which incorporates the 5 major amendments and the 13 minor amendments. This is a clerical action but it is necessary to keep the PUD agreement up to date. The amended agreement is ready for signature. RECOMMENDATION: A motion to approve signing of the amended Spring Prairie Planned Unit Development Agreement would be in order. Respectfully Submitted, I i Thomas R. Jentz Chris A. Kukulski Director City Manager Report compiled: January 27, 2004 c: Theresa White, Kalispell City Clerk TRANSMIT\KALISPEL\2003\KPUD-03-1 SPRING PRAIRIE MINOR AMEND MM Providing Community Planning Assistance To: • City of Kalispell • City of Columbia Falls • City of Whitefish • m® ety Planning 17 Second Street East Suite 211 Kalispell Montana 59901 Phone: (406) 751-1850 Fax: (406) 751-1858 tricity(&ce nturytel. net www.tricityplanning-mt.com NO D)k�93V ".. �IIR1JI •ENEWMINM , • � . � • ��/'-icy ��►�1��•I�7C The attached report contains an analysis and recommendation of the Kalispell Site Review Committee concerning a request by Goldberg Properties, Inc. for 13 minor amendments to the December 1, 2001 Spring Prairie Planned Unit Development Agreement. • �; Goldberg Properties, Inc. are requesting approximately 18 amendments to the Spring Prairie PUD agreement to accommodate their proposed 29 lot commercial development called Spring Prairie Center to be located on the northeast corner of Section 36. Section 5.01 of the PUD agreement states that all proposed amendments to the PUD agreement are to be submitted to the Kalispell Site Review Committee for review. Those changes that are considered minor are to be addressed directly by site review. Any changes of significance are to be forwarded directly to the City Council for action. Under separate cover, 5 major amendments were submitted to the City council for action. A work session has been scheduled for November 17, 2003 and a public hearing is scheduled for December 1, 2003. The remaining 13 amendments are considered minor by the Kalispell Site Review Committee. They are presented below with the recommended action by the Site Review Committee for your information. Following are 13 minor changes proposed to the PUD agreement. The reference number is taken from the PUD. Following each requested change is a brief discussion and narrative discussing the amendment. The Kalispell Site Review Committee has reviewed and approved the wording in each case. Those areas in bold would be new language, those areas crossed out would be stricken language from the PUD. This material is presented to you for information purposes. Providing Community Planning Assistance To: ® City of Columbia Falls m City of Kalispell m City of Whitefish Kalispell Site Review Committee Re: Spring Prairie PUD Minor Amendments November 2-0,-2003- 1.22 "Applicant" shall mean any party assigned by the DNRC that has been provided development rights by DNRC for any portion of the Subject Property. Applicants shall be granted all appropriate and necessary rights to allow Applicant to obtain approvals for and construction of such property designated by DNRC. Discussion/recommendation: This is clarifying language as DNRC is the master developer yet the entire site will be developed by "other "developers. Site Committee recommended approval. 2.0l.E(2)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 ef providing one island for every 4-5 20 eentinuous contiguous parking spaces when such space are located internal to the parking lot (not abutting the perimeter boundary to the parking lot or store front) Discussion/recommendation: Staff is concerned that this approach relaxes the standards and does not serve to accomplish the desired outcome of adequately landscaping and breaking up large expanses of asphalt. As an alternative staff suggests that the islands grow proportionally in width to accommodate the increased parking spaces where the increment of 15 cars is exceeded. Staff recommends the following: 2.01.E(2)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 at ^ r^tie of providing one island for every 15 eentinueus contiguous parking spaces when such space are located internal to the parking lot (not abutting the perimeter boundary to the parking lot or store front). The number of contiguous cars per island may increase up to a limit of 20 provided that the associated landscape island proportionally increases in width (i.e. a row of 20 cars is a 33% increase over the maximum 15 space standard, therefore the island width would increase 33%). Kalispell Site Review Committee Re: Spring Prairie PUD Minor Amendments November-20-2003 �l ► 9 a smal a iYi� �31'1�`fc3 2.01E(2)e. Sidewalks or pathways shall connect developed properties to the from roadside sidewalks (see le, above) to building entrances in a continuous manner. Sidewalks and enhanced pavement will count against the required landscaped area. Discussion/recommendation: The city has long required sidewalks, not as an amenity or a landscape feature but as a necessary public facility in site planning. Staff does not support this request. 2.OIE(2)e. Sidewalks or pathways shall connect developed properties to the from roadside sidewalks (see le, above) to building entrances in a continuous manner. 2.01E(2)h. Landscaped beds and parking lot landscaping islands shall be mulched with either naturally decomposing material (bark) or small gravel mulch (1 "-3" rounded river rock mulch is strongly discouraged). In high traffic areas, an urban design approach to islands (concrete with trees in grates or patterned/ colored concrete type designs) is encouraged but not required. Discussion/recommendation: Staff concurs with the above amendment. AMENDMENT REQUEST #5 2.OIE(3)c. Buildings shemay have an orientation towards the internal road system. Discussion/Recommendation: Staff understands the concern and is willing to offer flexibility to this issue. It is important that the main internal roads serving these site, such as the pads along US 93 do not become unsightly "backs" where trash is collected, HVAC features are placed and employee parking occurs. Staff would support this amendment with the caveat that 4-sided architecture shall be provided such that these users do provide "front architecture along the internal roads. 2.OIE(3)c. Buildings shall may have an orientation towards the internal road system however, if the building "fronts" in another direction, four sided architecture shall prevail and the side facing the internal street shall contain front architecture features and treatment . Kalispell Site Review Committee Re: Spring Prairie PUD Minor Amendments November 20, 2003- 2.01E(3)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. Notwithstanding anything contained herein to the contrary, facades that do not have frontage exposure to US Highway 93 should have appropriate elements that create visual interest. Discussion/recommendation: Staff concurs with the above amendment. 2.01F. Covenant: 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 PUD agreement and shall revise the covenants as necessary to comply with the conditions of approval of the PUD. Notwithstanding the foregoing, the applicant may prepare their own separate Easements, Covenants, Conditions and Restrictions, (ECC&R's) between the DNRC and the Applicant. Discussion/recommendation: Staff concurs with the above amendment. 2.02H. DNRC or Applicant shall require all proposed uses developments and buildings to be subject to architectural review in accordance with a separate Agreement between the DNRC and the Applicant. All structures shall conform to the relevant city of Kalispell Building Department regulations. Architectural consistency between building types with 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. Discussion/recommendation: Staff concurs with the idea but feels that it is important to maintain a contact with this committee to ensure that the PUD criteria are consistent and complied with. Staff offers some additional language in that regard. 2.02H. DNRC or Applicant shall require all proposed uses developments and buildings to be subject to architectural review in accordance with a separate Agreement between Kalispell Site Review Committee Re: Spring Prairie PUD Minor Amendments November-20;-2003- the DNRC and the Applicant. A staff representative form the City of Kalispell shall serve on the committee in an advisory capacity at its discretion. All structures shall conform to the relevant city of Kalispell Building Department regulations. Architectural consistency between building types with 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. s 2.02H(5)b. Large, rectangular masses should be avoided by incorporating offsets in the wall and roof. A change in the plane 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 e�da shall have variation and interest in the wall. Discussion/Recommendation: Staff would concur with this approach however, it is felt that some additional guidance as to the tool or expectations is warranted. Adding concepts as major landscaping, significant tree planting, use of color or building materials or architectural treatments would be in order. 2.02H(5)b. Large, rectangular masses should be avoided by incorporating offsets in the wall and roof. A change in the plane 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 ev, . bit pr-emment shift shall have variation and interest in the wall. Among other things, major landscaping, significant tree planting, use of color or building materials or architectural treatments would be in order. 2.02H(5)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 rooftop mechanical systems shall be shielded from view from 5"-0" above ground plane of US Highway 93 as seen at a 90 degree angle or incorporated into architectural features. Roof design shall incorporate architectural relief if building foot print size is greater than 20,000 square feet. Discussion/recommendation: Staff concurs with the above amendment. Kalispell Site Review Committee Re: Spring Prairie PUD Minor Amendments November- 20-,-2003 AMENDMENT REQUEST # 11 2.02H(S)f. Franchise architecture is may be subject to modification to achieve the sign, color, and building style objectives set forth by this agreement. Colors and materials of franchise architecture shall be similar to or compatible with the materials and colors of Spring Prairie Center as identified in a separate Agreement between the DNRC and the Applicant. Discussion/recommendation: Staff concurs with the above amendment. • 2.02H(S)g. Architectural elements of the front of the building sha4l may be incorporated into the back of buildings when the back of the building is visually accessible from U.S. Highway 93 Discussion/recommendation: Staff feels that the original language is not burdensome in that it does not require all the architectural elements of a front to be constructed on the back of a building which backs onto US 93. It requires some of the elements to be utilized. In terms of community appearance, it does provide a community benefit and it promotes the concept of 4-sided architecture which is an important element of this project. The original language should be maintained. 2.02H(S)g. Architectural elements of the front of the building shall be incorporated into the back of buildings when the back of the building is visually accessible from U.S. Highway 93 3.02C. DNRC or its assigns or Applicant 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 land uses that require access to a particular public road. Discussion/recommendation: Staff concurs with the above amendment. 1 DMA 9 Eel Q PARTIES AND PURPOSE: This Agreement was originally made and entered into the 3rd day of December, 2001 by and between the 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 - 1 st Avenue East, Kalispell, Montana 59901. Pursuant to the request of DNRC, and consensus of the City, by Ordinance 1486 dated the 15th day of December, 2003 and by recommendation of City staff [KPUD-03-01] dated the 13th day of November, 2003 the Agreement is hereby amended as follows: 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 36 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, — 1 — 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. l � . 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'/4 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 %4 of Section 36 and already zoned P-I 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. —2— - -- -- ---- ---- --- 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. 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. 1.22 Applicant shall mean any party assigned by the DNRC that has been provided development rights by DNRC for any portion of the Subject Property. Applicants shall be granted all appropriate and necessary rights to allow Applicant to obtain approvals for and construction of such property designated by DNRC. —3— i �. Nr • �� 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: (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) Development 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 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 the commercial district beginning at West Reserve Drive and ending %2 mile south along U.S. Highway 93 shall be limited to no more than 3 approaches. Additional approaches south of the aforementioned area shall also be allowed as approved by the access -permitting agency. 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; —5— 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 Ia, above; c. The collector road system shall be as generally shown by Exhibit E and as more precisely aligned by 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; and, 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 providing one island for every 15 contiguous parking spaces when such space are located internal to the parking lot (not abutting the perimeter boundary to the parking lot or store front). The number of contiguous cars per island may increase up to a limit of 20 provided that the associated landscape island proportionally increases in width (i.e. a row of 20 cars is a 33% increase over the maximum 15 space standard, therefore the island width would increase 33%). 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 from roadside sidewalks (see 1 e, above) to building entrances in a continuous manner. 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. h. Landscaped beds and parking lot landscaping islands shall be mulched with either naturally decomposing material (bark) or small gravel mulch (F-Y rounded river rock mulch is strongly discouraged). In high traffic areas, an urban design approach to islands (concrete with trees in grates or patterned/ colored concrete type designs) is encouraged but not required. 3. Building and [lease] Lot Parameters a. Buildings should not exceed 35 feet above the final grade in the Mixed Residential POD, 40 feet in the Mixed Professional POD and 45 feet in the Mixed Commercial POD. Such height limitation may be exceeded in the mixed commercial POD by issuance of a conditional use permit. -7- b. Applied finishes of buildings shall be predominately earth tone; c. Buildings may have an orientation towards the internal road system however, if the building "fronts" in another direction, four sided architecture shall prevail and the side facing the internal street shall contain front architecture features and treatment . d. Ground and wall signs as limited below may be used to identify a single use lease lot or multiple uses within common lot/lease area. Ground signs shall have natural earth tones and not be fabricated primarily of exterior plastic, Plexiglas or similar materials. The ground sign may 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 the size and height standards for freestanding signs as specified in Table 1 of Section 27.24.080 (1 d) of the Kalispell Zoning ordinance. In addition, freestanding signs shall be capped at 24 feet in total height and 120 square feet in total surface area. There shall be no more than a total of 3 free standing ground signs, one for phase one, one for phase 2 and one for phase 3. The freestanding signs shall be constructed as presented in exhibit I and shall only advertise the name of the primary tenant of the phase and the name of the development. Wall signs may have internal lighting and shall not exceed a sign face area as provided in the City of Kalispell Zoning Ordinance. 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 maybe 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. IMM Walls and surface planes should be broken up in such a manner as to create a visual interest, avoiding monotony. Notwithstanding anything contained herein to the contrary, facades that do not have frontage exposure to US Highway 93 should have appropriate elements that create visual interest; 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 sub -lots have been established) shall be set back a minimum distance from U.S. Highway 93 as follows: Phase 1— 300 feet, Phase 2 — 225 feet and Phase 3 — 150 feet. 4. Extension of Services a. All required services shall be underground; and 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. —9— 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 13-1. 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 least 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 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. —10— 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 II (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. lnfill 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 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 1/4 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-l. 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 Ill is the Mixed Residential POD. — 11 — 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. lnfilI 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 non- agricultural 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. —12— 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 PUD Agreement and shall revise the covenants as necessary to comply with the conditions of approval of the PUD. Notwithstanding the foregoing, the applicant may prepare their own separate Easements, Covenants, Conditions and Restrictions, (ECC&R's) between the DNRC and the Applicant. 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 POD — Zoning Classification R-4 (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) —13— -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) and incidental casino use. Incidental casino use. Incidental casino use is limited to 5% of the gross floor space of a fully bonifide, freestanding restaurant facility (as opposed to a gas station —restaurant -casino arrangement for example). The casino floor plan must be visually separate from the primary use of the building as a restaurant. There can be no outside indication of a casino or gaming activity including signage in a window, on the building or the premise and no excessive lighting or attraction to indicate such a use. This includes but not limited to reference to words or symbols associated with the gaming industry such as gambling, gaming, poker, chance, casino, live betting, daily take or pot, card game, dice, $, 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) —14— (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 8) 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. —15— (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 specified herein by the listed performance standards or by language within the adopted neighborhood plan (see Section 27.22.120, KZO). —16— (H) DNRC or Applicant shall require all proposed uses developments and buildings to be subject to architectural review in accordance with a separate Agreement between the DNRC and the Applicant. A staff representative form the City of Kalispell shall serve on the committee in an advisory capacity at its discretion. All structures shall conform to the relevant city of Kalispell Building Department regulations. Architectural consistency between building types with 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 2.01E (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 toward warm earthy hues, whether -17- 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 plane 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 shall have variation and interest in the wall. Among other things, major landscaping, significant tree planting, use of color or building materials or architectural treatments would be in order. 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 from 5"-0" above ground plane of US Highway 93 as seen at a 90 degree angle 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 may be subject to modification to achieve the sign, color, and building style objectives set forth by this agreement. Colors and materials of franchise architecture shall be similar to or compatible with the materials and colors of Spring Prairie Center as identified in a separate Agreement between the DNRC and the Applicant. s g. Architectural elements of the front of the building shall be incorporated into the back of 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. 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 or its assigns or Applicant 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. —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(B)(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. (I) 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 has supplied a fire site access plan for the Subject Property and an engineered internal —21— (D) DNRC agrees to be responsible for all required traffic turn lanes, traffic signals, and other regulatory signs and signals directly pertaining to ingress 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) DNRC 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. —20— 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 -%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 2-1/4 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. 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 fora 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. (C) DNRC maybe 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 - 22 - water and sewer facilities. If DNRC anticipates the need for reim ursement 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. 5) Upon concurrence, the Director of Public Works shall submit the proposed developer's extension agreement to the Kalispell City Council for approval. — 23 — 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. 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 maybe 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. — 24 — 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 — day of February, 2004. DEPARTMENT OF NATURAL RESOURCES By: Jon A. Dahlberg Area Manager, Northwestern Land Office CITY OF KALISPELL Attest: By: By: Chris A. Kukulski Theresa White City Manager City Clerk STATE OF MONTANA ) ) ss. County of Flathead ) On this day of , 2004, before me the undersigned, a Notary Public for the State of Montana, personally appeared known to me to be the authorized representative for the Department of Natural Resources, the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same on behalf of the said entity. Notary Public for the State of Montana Residing at My Commission Expires STATE OF MONTANA ) ) ss. County of Flathead ) On this day of , 2004, 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 —26— AN ORDINANCE AUTAORIZING1 ADOPTING AN AMENDMENTTO THE DEVELOPER'S AGREEMENT F•;'THE PLANNED UNIT DEVELOPMENT •I• SPRING BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL, AS FOLLOWS: SECTION I. That the Spring Prairie Planned Unit Development, approved on December 3, 2001, shall be, upon execution by the landowner, amended as follows: 2.01E(1)a: General access to the commercial district beginning at West Reserve Drive and ending % mile south along U.S. Highway 93 shall be limited to no more than 3 approaches. Additional approaches south of the aforementioned area shall also be allowed as approved by the access permitting agency. 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. 2.01 E(3)a: Buildings should not exceed 35 feet above the final grade in the Mixed Residential POD, 40 feet in the Mixed Professional POD and 45 feet in the Mixed Commercial POD. Such height limitation may be exceeded in the mixed commercial POD by issuance of a conditional use permit. 2.01 e(3)D&E: Ground and wall signs as limited below may be used to identify a single use lease lot or multiple uses within common lot/lease area. Ground signs shall have natural earth tones and not be fabricated primarily of exterior plastic, Plexiglas or similar materials. The ground sign may 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 the size and height standards for freestanding signs as specified in Table 1 of Section 27.24.080 (1 d) of the Kalispell Zoning ordinance. In addition, freestanding signs shall be capped at 24 feet in total height and 120 square feet in total surface area. There shall be no more than a total of 3 free standing ground signs, one for phase one, one for phase 2 and one for phase 3. The freestanding signs shall be constructed as presented in exhibit 1 A and shall only advertise the name of the primary tenant of the phase and the name of the development. Wall signs may have internal lighting and shall not exceed a sign face area as provided in the City of Kalispell Zoning Ordinance. 2.01 E(3)i: Commercial buildings or combination of buildings on a single lease lot exceeding 60,000 sq. ft. total gross floor area (where no sub -lots have been established) shall be set back a minimum distance from U.S. Highway 93 as follows: Phase 1 — 300 feet, Phase 2 — 225 feet and Phase 3 — 150 feet. 2.0213B The mixed Commercial POD is limited to the following permitted uses; 15) Restaurant (deli, bakery, fast food, sit-down, beverage shop, drive through, etc) and incidental casino use. Incidental casino use. Incidental casino use is limited to 5% of the gross floor space of a fully bonifide, freestanding restaurant facility (as opposed to a gas station —restaurant -casino arrangement for example). The casino floor plan must be visually separate from the primary use of the building as a restaurant. There can be no outside indication of a casino or gaming activity including signage in a window, on the building or the premise and no excessive lighting or attraction to indicate such a use. This includes but not limited to reference to words or symbols associated with the gaming industry such as gambling, gaming, poker, chance, casino, live betting, daily take or pot, card game, dice, $, etc. 20) Other uses which are so like the listed uses in purpose, function, character and effect to be substantially similar to the listed uses. (Excluding those otherwise conditioned or prohibited by this PUD agreement). 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 15TH DAY OF DECEMBER, 2003. Pamela B. Kennedy Mayor ATTEST: Theresa White City Clerk SUBDIVISIONTRI-PLANNING OFFICE REPORT NOVEMBER 4, 2003 A report to the Kalispell City Planning Board and the Kalispell City Council regarding a request for preliminary plat approval of a 29 lot commercial subdivision within the Spring Prairie PUD. A public hearing on this matter has been scheduled before the Kalispell Planning Board for November 12, 2003 beginning at 7:00 PM in the Kalispell City Council Chambers. A recommendation from the Planning Board will be forwarded to the Kalispell City Council for final action. A. Applicant: Gary Elerman SEM Architects, INC 677 South Colorado Boulevard, Suite 200 Denver, CO 80203 (303) 220-8900 z Grant Nelson Goldberg Properties, Inc. 1120 Lincoln Street Suite 903 Centennial, CO 80121 (303) 759-8000 Don Lawhead Western Project Services 5881 South Sherman Way Centennial, CO 80121 (303) 794-6252 Owner: David Greer Dept. of State Lands 2250 Highway 93 North Kalispell, MT 59901 B. Location: This property is located on the southwest corner of the intersection of West Reserve Drive and US Highway 93. The site has approximately 1/2 mile of frontage along US 93 and is generally described as lying in the E2 of the NE4 of Section 36, Township 29N, Range 22 West, PMM, Flathead County, Montana. C. Size: Total area: 54.37 acres Area in Lots: 51.14 acres Area in Streets: 3.23 acres Minimum Lot Size: 0.49 acres Maximum Lot Size 13.40 acres D. Nature of theRequest: The applicants are requesting preliminary plat approval of a 29-lot commercial subdivision proposed to be developed on the State School Trust Site. The applicants/developers, Goldberg Properties, Inc. have successfully bid and #KPP-03-14 Page 1 of 13 are under contract with the DNRC to develop this commercial POD. The applicants propose a 3-phase commercial development. The phases are divided by major east/west roads. The first phase will be the center portion of the site. Note that the largest building pad on the center phase is labeled Lowe's as this company has committed to be the first tenant. Phase 2 lies to the south of the first phase and phase three lies to the north of the Lowe's Phase. Please note that while the applicants are requesting permission to create up to 29 individual lease lots on this 54 acres, as was the case across the street on the Home Depot Site, larger tenants will probably consolidate several of these parcels into single development projects. The site plan shows a potential build out with a Lowe's, two additional larger box stores and 13 smaller pads or footprints. At this point the applicant would choose to maintain flexibility not knowing for sure what the actual tenant mix and needs will be. A neighborhood plan (Section 36 Neighborhood Plan) was approved for the entire School Trust Section in 1999. This neighborhood plan designated areas of the State School Section for various proposed uses including the 136 acre City recreation site for Kids Sports, the mixed commercial POD (under discussion with this project), the mixed professional POD in the northwest portion of the section and a Residential POD in the southwest portion of this section. Shortly after adoption by the City, the neighborhood plan was the subject of a state MEPA (Montana Environmental Policy Act) review and assessment which further refined the neighborhood plan. This was required as the neighborhood plan was considered a significant State action. In December 2001, Section 36 was annexed and a PUD overlay (Spring Prairie PUD) was approved by the City of Kalispell for Section 36 which developed the zoning and design standards in compliance with the neighborhood plan. The Spring Prairie PUD will guide and regulate this proposed subdivision. Please find a copy of the Spring Prairie PUD attached to this staff report for your review should you have specific questions as to the nature or conditions of the PUD agreement governing this site. E. Existing Land Use: The property is generally farmland and is void of all structures except for a BPA overhead transmission line that bisects the northerly portion of he site. One set of towers are located on the very northeast corner of the site and overhead lines straddle the site. E. adjacent Land Uses: The project site abuts US Highway 93 for approximately 1/2 mile along the eastern boundary. Across this 5-lane arterial lies the Mountain Plaza commercial development containing Home Depot, Target, Pier 1, Petco, etc. To the immediate south lies the DNRC State Lands office complex and helicopter pad. Further south lies Kid's Sports, the City's Sports Complex. To the west lies 3/4 of a mile of open farmland owned by DNRC. To the north across West Reserve Drive lies a significant apartment complex called Mountain Villa and a residential condominium development and further west lies single-family houses. G. Existing Zoning: This property is zoned as the Spring Prairie PUD, adopted in December, 2001 in compliance with the Section 36 neighborhood plan and further refined by the state MEPA process. This particular site is regulated under the mixed commercial POD standards which anticipate a broad spectrum of retail commercial activities. The PUD utilized the B-5 zone as the underlying zone. It also addresses KPP-03-14 Page 2 d 13 building design standards, setbacks, parking lot design, signage standards, lighting, access, and landscaping. Under separate request and report the applicants are requesting to modify several aspects of the PUD along with this project. These revisions, per the PUD amendment section, are forwarded directly to the Council for consideration and are not directly part of the board discussion. H. Adjacent Zoning: North: County — RA- I South: Spring Prairie PUD East: Commercial - Mountain Plaza PUD West: Spring Prairie PUD (Mixed Commercial POD) 1. Relation to Growth Policy Map: The Section 36 neighborhood plan was adopted as an addendum to the Kalispell Growth policy. The neighborhood plan designates the subject area of this subdivision as Commercial/Retail. The Spring Prairie PUD was adopted as the implementing tool of the neighborhood plan. The PUD designates the site as a Mixed Commercial PUD based on a B-5 zone classification. This project will be required to be in compliance with the PUD as amended through the process. J. Utilities: Water: City of Kalispell Sewer: City of Kalispell Electricity: Flathead Electric Cooperative (underground) Telephone: CenturyTel (underground) Solid Waste: City of Kalispell Fire: City of Kalispell Schools: School District #5, Kalispell Police: City of Kalispell This application is reviewed as a major subdivision in accordance with State statutory review criteria and the Kalispell City Subdivision Regulations. The following findings are made: A. Effects on Health .; Fire: The proposed subdivision has excellent access aria US 93 and West Reserve Drive. This subdivision would be in the service area of the Kalispell Fire Department. The property can be considered to be at low risk of fire because the subdivision would be constructed in accordance with the Uniform Fire Code and has access which meets City standards. The property does not have steep slopes or woody fuels. Hydrants will be required to be placed in compliance with the requirements of the Uniform Fire Code and the approved by the fire marshal. The fire access and suppression system should be installed and approved by the fire department prior to final plat approval because of potential problems with combustible construction taking place prior to adequate fire access to the site being developed. The City is in the process of developing a satellite fire station at the corner of Four Mile and US 93. This would place the new station approximately 1/2 #KPP-Q3-14 Page 3 of 13 mile from the entrance to this site. It is projected that the new station will be operational in 2006. Flooding: According to the Flood Insurance Rate Map panel # 1805D, there are no areas subject to flooding or mapped within the designated100-year floodplain. BPA Utilitv Corridor: Note that a BPA utility power line bisects the property east/west primarily extending through phase 3 on the north end of the project. It should be noted that no easement exists at this time to specifically define uses and limitations. The original power line was constructed in the late 1940's and no record exists of a filed easement. The DNRC is in the process of procuring an easement at this time. As is typically the case, within the BPA corridor area, no structures of any kind are allowed. The easement must be kept open both for access to the facilities (towers. wires, etc.) and from a safety standpoint as these lines carry significantly high loads. Passive uses such as parking lots, landscape and open space and streets are allowed. This will serve to be a major design factor as this project proceeds. Access: All access to this subdivision will be via US Highway 93. This road is on the Federal Highway system and is owned and managed by the Montana Department of Transportation. All approaches and their design will be required to be approved by MDT. The applicants are proposing 3 major approaches onto US 93. The northerly approach will enter at the Home Depot traffic light thus providing a four-way traffic light controlled intersection utilizing the existing stoplight. This access will be a dedicated City street which is intended to serve both this project and lands further west as development phases continue ultimately intersecting with the proposed by- pass and then heading north to Reserve. This approach will be constructed with Phase 1. The center access (note the traffic circle midway on the street) is proposed to be a private road with a % intersection design. No stoplight is proposed and the intersection would not allow left turns out or straight exit across the highway to the Target entrance. This intersection does line up with the Target intersection which is right turn in — right turn out only, but the intersections would have. no relationship under this design. The applicant's feel strongly about this design and state that it will function as an entrance and exit of opportunity between the two proposed traffic lights. They do not want a stop light here as the spacing of stoplights would be to close to accommodate free flowing traffic. This center access road includes a traffic circle within the parking lot area. This road will be a private street and will only provide access to the immediate commercial parking area. It does not extend westerly beyond this subdivision. It ends in a service road that loops behind the Lowe's building pad and a southerly anchor for service access only. This approach will be constructed with Phase 1. The third access is proposed along the south side of the subdivision. It is proposed to be a dedicated City street, built with Phase 2 entering onto US 93 with a full traffic light design. This intersection lines up across US 93 at a point between the north boundary of the college land and the Hutton property (a 20-acre parcel between the Target development and the college lands fronting on US 93) . Thus, this would be an ideal location for a future traffic light to serve properties on both sides of US 93. At site review there was concern that this third southerly access road be designed and made available to the DNRC office complex so that now and in the future, future traffic from the state office complex site could use the controlled 1I'PP-o3-i4 Page 4 of 13 intersection. Note that uncontrolled full intersections along this stretch of highway will become more problematic in the future as traffic increases. In addition, there is concern that the sports complex to the south have access to this controlled intersection road so that any traffic that may come in or out of this site to the north could utilize the stop light intersection as well. Please note that the Spring Prairie PUD limits the number of access points from this project to two onto US 93. The applicants have requested the third access to allow the site to better function. Staff at city site review did concur with the applicants recommendation to allow the third access noting that the applicants are developing 1/2 mile of highway frontage and each access point will be the subject of a traffic study and access design submittal to MDT. The matter of the amendment to the PUD agreement will be forwarded directly to the City Council for action at the time they review the preliminary plat after the Planning Board has made their recommendation. s r • The site is not mapped within any big game winter range and does not provide significant habitat to wildlife. The property has been intensely farmed in small grains for several decades. It contains no trees, shelter, forage or riparian areas. Development of this site will not impact with wildlife or wildlife habitat. C. Erects on the Natural Environment: Surface and Ground Water: This subdivision will be served by public water and sewer thereby minimizing any potential impacts to the groundwater. No surface water is in close enough proximity to the site to create concerns with regard to this development. There is no floodplain in the area or on the property. Drainage There is no municipal storm water system serving this site. All storm water will have to be managed and maintained on site via an engineered collection and disposal plan. The preliminary proposal shows a detention pond in the very northeast corner of the site with plans to flow water in this direction for collection, treatment and disposal. This is the location of an historical drainage. In past decades there was a natural flow through this portion of the property and then northeasterly under US 93 via a culvert to the Stillwater River. This drainage has been significantly altered with the construction and widening of US 93. D. Effects on Local Services: Sewer: Municipal sewer has already been extended to this site. A 12" sewer main has been extended under US 93 to the southeast corner of this site. This sewer main will be extended, according to a phasing plan. With the development of Phase 1 (Lowe's project) the 12" sewer will be required to be extended to the very western edge of the subdivision per city policy. With Phase 2 development, the 12" main will be extended to the southerly end of the south main access road. Note that the State DNRC has already engineered a backbone utility plan for Section 36 that has been the subject of a State MEPA review. The extension of 'the 12" line will provide greater capacity than this project requires. However, per the internal development agreement DNRC has with the developer, Goldberg Properties, the developer is #KPP-03-14 Page 5 of responsible for the full cost of extending the 12" sewer main into and through the proposed subdivision. Water: Municipal water has also been extended to this site. A 12" water main has been extended along the entire length of US 93. The applicants will be required in phase 1 to hook to the 12" main and extend a 14" main into and through phase 1. Again note that the State DNRC has already engineered a backbone utility plan for Section 36. The extension of the 14" line through phase 1 and additional 12" lines to serve phases 2 and 3 will possibly provide greater capacity than this project requires. However, per the internal development agreement DNRC has with the developer, Goldberg Properties, the developer is responsible for the full cost of extending the 12" and 14" water mains into and through the proposed subdivision. These mains will allow adequate fire flows and domestic use for the project. Storm water management: There is no municipal storm water system serving this site. All storm water will have to be managed and maintained on site via an engineered collection and disposal plan. The preliminary proposal shows a detention pond in the very northeast corner of the site with plans to flow water in this direction for collection, treatment and disposal. This is the location of an historical drainage. In past decades there was a natural flow through this portion of the property and then northeasterly under US 93 via a culvert to the Stillwater River. This drainage has been significantly altered with the construction and widening of US 93 and the resulting flow to the northeast may have been lost. Note that the developer is required to develop his system to function on -site with out reliance on off -site flows. Roads: Roads and road access form a critical aspect of this project. All access will be off of US 93, a federal highway. Access permits will be issued by MDT for each of the three proposed access points. The State will require an engineering traffic analysis of each intersection and the applicant will be responsible to construct the improvements necessary to make the intersections function. The DNRC has done preliminary work with MDT on these approaches up to this point to assure feasibility. The northerly most access (across from Home Depot) which is controlled by a traffic light will be dedicated to the City and maintained as a City street. It will contain a travel surface, curb & gutter, landscaped boulevard and street trees. The R/W width is at approximately 115 feet as it enters the project tapering down to 80 feet as it extends westerly. This road will extend to the westerly end of the project in anticipation of its future extension into later phases of development. As part of Phase 1, this street will terminate at a point just past the Lowe's front building face with the remainder of this street extended to the western most end of the subdivision with development of Phase 3. The center access road is intended to be a 1/4intersection which means that the curb design will allow right -in and right -out as well as left -in but no left -out or straight across Highway 93 movements. This approach lines up with the Target right -in/ right -out access onto US 93. No signal is proposed and this road would be a private street. It contains a traffic circle which will help internally control the flow of traffic from major parking lots at this intersection. This private street generally terminates at the front of the Lowe's building with only a service delivery road providing access to the rear of the proposed major building pads. This private road will be required to 410P-03- 24 Page 6 of 1 be built to City standards including curb, gutter, landscape boulevard, detached sidewalk and street trees but remain private in terms of management and ownership. This road will also be built with Phase 1 development. The third primary access road along the south boundary of the project will be controlled by a traffic light. This street will be built to City street standards as well and dedicated to the City. This street shows as a 60-foot wide R/W but appears to need to be a minimum of 80-feet to accommodate anticipated traffic along with the required curb & gutter, landscape boulevard and sidewalk and a recommended bike path. This street will be constructed to the far westerly end of the site with Phase 2. This street will need to provide access to the lands to the immediate south including a DNRC Office site access and a future City Parks access to allow traffic in this neighborhood an opportunity to flow to a controlled intersection. The remaining internal roads will function as private streets providing access to parking lots and smaller out -parcel building pads. These streets will be built to a standard that requires streets trees on both sides and detached sidewalks along at least one side. Pedestrian access: The Spring Prairie PUD Ordinance Section 1, Statement #8 states pedestrian walkways shall be provided that provides a continuous and connected system with the existing walkways along Highway 93, Four Mile and within the developed areas. Section 3.03 (B) of the PUD Agreement requires that a paved pedestrian bike path will generally follow the collector roads. Pedestrian access and movement is considered a key element of this project. The applicants will be required to construct a pedestrian bike trail (typically a minimum of 10-feet wide) along the US highway 93 frontage to parallel the Highway 93 bike trail on the east side of the highway. From the Highway 93 bike trail, sidewalks should be extended along both sides of the three main access roads extending east -west to their westerly ending points. However, in lieu of a sidewalk, a bike trail should be constructed along the south side of the southerly major east -west access road which forms the southern boundary of Phase 2 of the subdivision to comply with Section 3.03 (B) of the PUD. Sidewalks are shown on the submitted site plan, the bike trails are not specifically noted. In addition, two east -west sidewalk corridors per major tenant parking lot are shown and will be required extending through the main tenant parking lots in Phase 1 and Phase 2. This ensures that an east -west sidewalk is never more than 500 feet on average away. North -south sidewalks will be required along three north -south corridors provided in this subdivision. First sidewalks will be required along the complete length of the internal private access road that parallels US 93 and bisects the traffic circle. Second, they will be required along the fronts of the major building pads including Lowe's extending from the south boundary bike trail to the north boundary of the subdivision in a continuous fashion. Finally, they will be required to extend the entire length of the property, north - south through the center of the major tenant parking lots of Phase 1 and Phase 2 as shown on the site plan. #KPP-03- I4 Page 7 of 13 W Phase 3 should have the same pedestrian access treatment. Each internal street shall have detached sidewalks with landscaped boulevard. Sidewalk corridors should be extended through major parking lots in the same theme as Phase 1 and 2. Schools: This subdivision is within the boundaries of School District #5. Because of its commercial nature it will not generate school children. Taxes generated from the project will benefit the school district and proceeds from the leases collected by the DNRC will benefit the School Trust Fund. Parks: This subdivision is not subject to the parkland dedication requirements because it is a commercial subdivision as outlined in the Kalispell Subdivision Regulations and under State Statute. However, a central gathering area or culture - civic center was proposed to be constructed in Phase 3 in an earlier proposal to the public and to DNRC. This focal center is now lacking on the current site plat submittal. It would be extremely beneficial for this project and for the character and prominence of this site as a significant commercial center and focal point in the City of Kalispell to incorporate such a feature in Phase 3. Such a center could include a plaza, fountains, art or architectural focal point, passive open space, distinctive landscaping and room for outdoor gatherings/functions. Police Protection: This development will be served by the Kalispell Police Department. According to the Kalispell Police Department, they will be able to adequately serve this area. Fire Protection: This development will be served by the Kalispell Fire Department. The location and placement of fire hydrants needs to be addressed. Fire flows in the area are adequate to accommodate any necessary hydrants. Street and parking lot design has been reviewed by the fire marshal and tentatively approved. More specific review will occur at the time of building permit issuance for specific uses. A satellite fire station is proposed for the northwest corner of Four Mile and US 93 approximately 1/2 mile south of this site. It is anticipated that the site will be operational in 2006. This will allow immediate fire protection for this site. Refuse Disposal: The subdivision will be served by the City of Kalispell for solid waste disposal. Adequate space at the County landfill is available for the solid waste which will be generated by the subdivision. Individual service will be addressed with each building or facility constructed. Medical Services: Kalispell Regional Hospital is approximately two miles from the site. Ambulance services are available to serve this subdivision and access is good. Effects on Agriculture and .Agricultural Water Users Facilities: This property has been actively farmed for several decades under a state managed lease program with proceeds going to the State School Trust. Soils are Kalispell Loams and are classified as class 2 and class 3 soils according to the Upper Flathead Valley Soil Survey. Loss of this agricultural site will incrementally impart the agricultural land base in Flathead County. However, the site lies within the City of Kalispell, has US Highway 93 frontage, abuts urban scale development on 3 sides, has a sewer and a water trunk line extended to the site and the subject site has already gone through a MEPA analysis by the State in anticipation of commercial development of this site. While there is an impact to agriculture, the proposed I{PP-03-14 Page 3 of 13 subdivision is a planned and anticipated project in the path of the planned urban expansion of Kalispell. The Kalispell City Growth Policy Map acknowledges the adopted Section 36 neighborhood plan. The plan designates the subdivision site as mixed commercial and provides a series of guidelines and policies for its development as a commercial - retail center. Such a designation anticipates a wide variety of retail and service oriented commercial activities and is further implemented by the adoption of PUD zoning. The goals of the mixed commercial neighborhood were to identify the appropriate location for commercial uses, to minimize the appearance of highway strip development, to identity appropriate commercial uses and to identify appropriate development standards. In that effort 13 policies were listed addressing the need for appropriate setbacks, the need to provide municipal services, limiting "strip -type" uses and gambling establishments, encouraging a village or cluster concept of development versus a linear pattern, landscaping and signage design policies, building design features and lighting all intended to avoid a strip development and instead create a village concept. These features have been factored into the project and specifically implemented by the Spring Prairie PUD. In addition, staff has added comments and conditions to address those areas it specifically feels is lacking in compliance. This zoning for this property is a specially crafted PUD ordinance (Spring Prairie PUD) adopted in December 2001 by the City Council. It is attached to the staff report for your reference. It is based on the B-5 Commercial zone. While the Spring Prairie subdivision as submitted generally complies with the adopted PUD requirements, please note that the applicants have requested approximately 18 amendments to the PUD agreement. The 18 amendments run the gamut from minor to major in impact. Some are only editorial in nature; some are for clarification of terms and roles of developer, applicant, etc. because this is a multi -tiered development with the State leasing the project to a developer and the developer subleasing the sites to businesses. Approximately 5 are deemed to be substantive in nature. Only one of the 5 requests, that being a third access onto US 93, affects this subdivision submittal. The substantive issues are: ® Requesting an additional access point onto US 93 for a total of three. The original PUD limited access to US 93 to only 2. • Modify the minimum signage requirements for both on -site businesses and for off -site entrance signage. • Increasing the maximum height allowance for the site from 35 to 60 feet. • Allowing buildings in excess of 60,000 square feet to be built within 150 feet of US 93 instead of the current 300 feet requirement. • Modifying the list of permitted commercial uses to include a statement, "and other similar uses not specifically mentioned herein the PUD agreement but that are found to be similar in nature." 4KPP-03-14 Page 9 of 1 The provisions of the PUD agreement require all amendments to the Spring Prairie PUD to be submitted to the Kalispell Site Review committee. Those amendments which are considered to be minor in nature may be implemented. Those amendments considered by the Site Review Committee to be major or significant are to be sent directly to the City Council for consideration and action. This course is being followed and the changes are being forwarded to City Council for consideration and action. This part of the project is not specifically within the review authority of the planning board but only mentioned here for clarification of the process. The preliminary plat appears to be in substantial compliance with the State and City Subdivision Regulations Staff recommends that the Kalispell City Planning Board adopt staff report #KPP-03-14 as findings of fact and recommend to the Kalispell City Council that the preliminary plat be approved subject to the following conditions: 1. That the development of this site will be in compliance with the adopted Spring Prairie PUD and PUD agreement adopted in December 2001 as amended. (Spring Prairie PUD). 2. That the development of the site will be in substantial conformance with the approved preliminary plat documents entitled Spring Prairie Center and associated submittal drawings which shall govern the general location of the lots, easements, roadways freestanding signage, landscaping and pedestrian access facilities except as modified by the conditions listed herein. Those documents are listed below. (Kalispell Sub. Regs. Appendix C - Final Plat I(A) Contents of final plat.) ® Spring Prairie Center Site plan dated 10 / 16 / 03 • Spring Prairie Center Preliminary Plat Document A-1 dated 10/6/03 s Spring Prairie Center Site Drainage Concepts DP dated 9 /30 / 03 • Spring Prairie Proposed Infrastructure Section 36, T29N, R22W as approved by DNRC ® Spring Prairie Center Phasing Schedule dated 10/ 16/03 ® Spring Prairie Center Phase One Utility and Road Infrastructure dated 9/30/03 3. That the roadways (private or public) serving the subdivision shall be constructed in accordance with the adopted Design and Construction Standards for the City of Kalispell for local streets. (Kalispell Sub. Regs. Section 3.01 & 3.09A). 4. The road within the subdivision shall be named and signed in accordance with the policies of the Kalispell Public Works Department and the Uniform Traffic Control Devices Manual and be subject to review and approval of the Kalispell Fire Department. (Kalispell Sub Regs. Sections 3.09 K(7) & M). 3. A storm water drainage plan which has been designed by an engineer licensed in the State of Montana shall be prepared which complies with the City's Design and Construction Standards and said plan shall be reviewed and approved by the Kalispell Public Works Department. (Kalispell Sub. Regs. Section 3.12 A). 4XPP-03-14 Page 10 of 13 6. That a letter be obtained from the Kalispell Public Works Department approving the plans and specifications for water, sewer and drainage facilities for the subdivision. (Kalispell Sub. Regs. Section 3.12 - 3.15). 7. A letter from an engineer licensed in the State of Montana certifying that the improvements have been installed according to the required specifications shall be submitted at the time of final plat approval along with a letter from the Kalispell Public Works Department stating that the required improvements have been inspected and comply with the City standards. (Kalispell Sub Regs. Sections 3.09, 3.11 — 3.15). 8. The two major east -west roads (one on the north and the other on the south) exiting out onto proposed traffic lights will be dedicated to the City. All remaining roads will be private in terms of ownership and maintenance. (Site Review Committee). 9. The two city streets extending east -west form the proposed traffic signals should be designed to minimum Collector Road Standards. (Kalispell Subdivision regulations Sec. 3.09, Table 1). 10. The southerly east -west City street which forms the southerly boundary to the subdivision shall provide coordinated access to the lands to the south including the DNRC State Office Complex and the Kalispell Kid's Sports site. 11. The applicants engineer shall certify to the City that it has received access approach permits from MDT and that all conditions of each access permit, including required traffic studies and required improvements have been achieved and or installed to the satisfaction of MDT. (Per request of Steve Herzog, Maintenance Supervisor, MDT Kalispell Office) . 12. Pedestrian access shall be provided as shown on the Spring Prairie Center "Site Plan" dated 10 / 16 / 03. In addition to and for clarification the following shall apply: a. A pedestrian bike trail (typically a minimum of 10 feet wide) shall be constructed along the entire US Highway 93 frontage with each phase. The bike path shall be integrally designed into the landscape plan required between the curb line of US 93 and the 20 foot required landscape buffer required by the PUD. b. All sidewalks extending westerly from the three main access roads shall integrate into and connect with the Highway 3 bike path. c. In lieu of a sidewalk, a bike trail should be constructed along the south side of the southerly major east -west access road which forms the southern boundary of phase 2 of the subdivision. d. In addition, two east -west sidewalk corridors per major tenant parking lot are shown and will be required to extend through the main tenant parking lots in Phases 1 and 2. This ensures that an east -west sidewalk is never more than 500 feet on average away. e. North -south sidewalks will be required along three north -south corridors provided in this subdivision. First, a sidewalk will be required along the complete length of the internal private access road that parallels US 93 and bisects the traffic circle. Second, a sidewalk will be required along the fronts of the major building pads including Lowe's extending from the south boundary bike trail to the north boundary of the subdivision in a continuous fashion. #KPP-03-14 Page 11 of 13 Finally, a sidewalk will be required to extend the entire length of the property, north - south through the center of the major tenant parking lots of Phase 1 and Phase 2 as shown on the site plan. f. Phase 3 shall have the same pedestrian access treatment as specified above for Phases 1 & 2. Each internal street shall have detached sidewalks with landscaped boulevard. Sidewalk corridors should be extended through major parking lots in the same theme as phases I and 2. g. Unless sidewalks and trails are located inside tenant parking lots they shall be detached in nature with a landscape boulevard between the walk/trail and the curb. h. Sidewalks shall be extended from adjacent trails and sidewalks into actual parcels to provide a connected and continuous walking area. i. All sidewalks located within parking lots shall have a raised concrete surface where they cross landscape islands for separation from traffic and parking. Where sidewalks cross traffic lanes, the sidewalk may be at grade but shall be constructed of colored or textured concrete, stone or other contrasting material to visually denote a pedestrian way. Simply painting the walk area is not adequate. Per Section 3.03 (B) of the PUD Agreement, Section 1 #8 of the PUD ordinance and submitted site plan dated 10/ 16/03)). 13. The fire access and suppression system shall comply with the Uniform Fire Code and a letter from the Kalispell Fire Department approving the access, placement of fire hydrants and fire flows within the subdivision shall be submitted with the final plat. The fire access and suppression system shall be installed and approved by the Fire Department prior to final plat approval. (Uniform Fire Code). 14. All new utilities shall be installed underground. (Kalispell Sub. Regs. Section 3.17A). 15. Development of an overall landscape plan addressing public and private street boulevards, street trees; perimeter project landscaping, parking lot landscaping and all common area landscaping shall be submitted to the City Parks Director for approval in writing prior to installation. The plan shall address all PUD requirements and compliance with attached plans and applications materials. In particular the landscape plan shall address: a. All landscape buffers, boulevards, tree planters, landscape islands, tree wells, etc. and common areas with live landscape materials shall be provided with adequate irrigation. b. The applicant or future leases shall be responsible to insure the live landscaping as approved on the original landscape plan and installed is maintained in a "live" condition. c. An irrigated landscape corridor of at least 20 feet in width shall parallel the R/W of US Highway 93 including undulating topography and have a mi<x of tree plantings with a ground cover predominately of lawn. A similar 10-foot landscape treatment shall be developed along West Reserve. d. In developing the landscape plan, the developer shall comply with the definition of landscaping as defined in the Kalispell zoning ordinance as follows: "Some combinations of planted, living trees, shrubs, hedges, vines, living ground cover and flowers suitable for the climate exposure and site conditions. In addition, the combination or design may include earth sculpture, cobble, bark, mulch, edgers, flower tubs, rock and such structural features as foundations, pools, art works, screens, walls, fences or benches, but such objects alone shall not meet the requirements of this orovision." Bark, mulch, rock, etc. may augment live KPP-03-14 Page 12 of 13 landscape features but the primary feature in all landscaping treatments shall be growing materials unless specifically modified as in special cases such as internal parking lot sidewalk corridors where trees would be in a protective grate as they line a sidewalk and form a canopy. e. Landscape islands within parking lots shall incorporate predominately living materials. One exception would be the raised sidewalk corridors extending through the parking lots as shown on the submitted October 16, 2003 Spring Prairie Center colored site plan where trees within tree grates lining sidewalks is acceptable. Note that in parking lot landscape islands, shade trees shall be placed in such intensity and location as to form a canopy where they cover or line sidewalks and where ever they are used, a visual break from the open asphalt parking areas surrounding it. The site plan shows two shade trees at the ends of islands and 4 trees within internal islands. This may or may not be adequate depending on species selected. (PUD Section 2.01 (E(2(F-G))) ). 16. All exterior lighting within the subdivision shall be shielded and directed downward so that it does not intrude unnecessarily onto adjoining properties or cause excessive glare or otherwise excessively light the site. In doing this all exterior lighting fixtures on buildings, streets and in parking lots shall be shielded with cut- offs and baffles with a minimum cut-off angle of 20 degrees below horizontal and the maximum light standard height is set at 30 feet above adjacent grade. This is not meant to discourage low intensity exterior lighting for architectural or landscape accent purposes. (Site review, PUD Section 2.02 H (3). 17. Prior to development of Phase 3, DNRC shall negotiate an easement with BPA and the applicant shall certify that Phase 3 is developed within the confines and terms of this easement. (BPA lease requirements). 18. That a minimum of two-thirds of the necessary infrastructure for each phase of the subdivision shall be completed prior to final plat submittal. With the filing of the final plat for each phase, an additional three-year extension shall be automatically granted for subsequent phases. (Site Review). 19. With the development of Phase 1, the infrastructure as illustrated in the Phase One Utility and Road Infrastructure Exhibit A-1 dated 9/30/03 and issued 10/6/03 shall be complied with. Specifically the northern most east -west City street shall be fully constructed from the traffic light on the east to the westerly subdivision line. In addition the 12 " sewer main and the 14" water main shall be extended to this boundary as well. (Kalispell Standards for Design and Construction). 20. The preliminary approval shall be valid for a period of three years from the date of approval. Upon the filing of each successive phase, an additional two years from date of final plat approval of the previous phase shall be granted. Prior to the expiration of any phase, a one-year extension may be requested. (Kalispell Sub. Regs. Section 2.04 (E (7)). "KPP-03-14 Page ? 3 of 13 This application shall be submitted, along with all information required by the applicable Subdivision Regulations and the Montana Subdivision and Platting Act, and the appropriate fee to: Tri-City Planning Office, 17 Second St East, Suite 211 Kalispell, Montana 59901 Phone: (406) 751-1850 Fax: (406) 751-1858 FEE SCHEDULE Major Subdivision (6 or more lots) Commercial and Industrial Subdivision $650 +$30ILot x 29 Lots + $200 = $1720 $650 + $30 / lot $650 /URi $659 i -$30 apace $200 Add $200 to base preliminary plat fee SUBDIVISION NAME: Spring Prairie Center OWNER(S) OF RECORD: Name Department of Natural Resources & Conservation, David Greer Mailing Address 2250 Highway 93 North City Kalispell State MT Zip 59901 TECHNICAL/PROFESSIONAL PARTICIPANTS (Surveyor/Designer/Engineer, etc.): Architect SEM Architects Inc, Gary Ellermann & Michael Hockett (Applicant on Behalf of Developer) 677 S. Colorado Blvd., Ste 200 Name & Address: Denver, CO 80246 PH: (303) 220-8900 Fax: (303)220-0708 Developer Goldberg Properties, Inc., Grant Nelson Name & Address: 1120 Lincoln Street, Ste 903 Denver, CO 80203 PH: (303) 759-8000 Fax: (303) 863-0275 Development Manager Western Project Services, Don Lawhead Name & Address: 5881 South Sherman Way Centennial, CO 80121 PH: (303) 794-6252 Fax: (303) 794-6112 Civil Engineer Morrison-Mairerle, Inc., Keith Belden Name & Address 1228 Whitefish Stage Missoula, MT 59802 PH: (406) 442-7862 Fax: (406) 542-0009 Geo-Technical Engineer NTL Engineering, Josh Smith Name & Address 1075 Trumble Creek Rd, Unit A P.O. Box 5350 Kalispell, MT 59903-5353 PH: (406) 257-6479 Fax: (406) 257-6470 Landscape Architect Sitescape Associates, Bruce Lutz Name & Address 385 Golf Course Dr., PO Box 1417 Columbia Falls, MT 59912 PH: (406) 892-3492 Fax: (406) 892-0367 Surveyor Eby & Associates, Inc., Jane Eby Name & Address PO Box 7144 Kalispell, MT 59904 PH: (406) 755-5329 Fax: (406) 755-9132 LEGAL DESCRIPTION OF PROPERTY City / County Kalispell / Flathead Street Address Highway 93 North Assessor's Tract No(s) 5 Lot No(s) N/A 1/4 Sec East 1/2 of North East 1/4 Section 36 Township 29 North Range 22 West GENERAL DESCRIPTION OF Commercial property within the Spring Prairie Center PUD SUBDIVISION: Number of Lots or Rental Spaces 29 Total Acreage in Subdivision 54.37 (+/-) Total Acreage in Lots 51.14 (+/-) Minimum Size of Lots or Spaces 0.49 (+/-) Total Acreage in Streets or Roads 3.23 (+/-)* Maximum Size of Lots or Spaces 13.4 (+/-) Total Acreage in Parks, Open Spaces and / or Common Areas N/A * Publicly dedicated Roads (Private Roads / Drive Excluded) PROPOSED USE(S) AND NUMBER OF ASSOCIATED LOTS/SPACES SingleFamilyN/A Terse N/A Duplex N/A Apart N/A Commercial TBD lRdust-rial N/A Planned Unit Development Oaademipil I N/A Multi N/A G#4ar See Proposed PUD Amendments N/A APPLICABLE ZONING DESIGNATION & DISTRICT Spring Prairie Center PUD ESTIMATE OF MARKET VALUE BEFORE IMPROVEMENTS $7.1 million Roads: Gravel X Paved X Curb X Gutter X Sidewalks Alleys Other Water System: _Individual _ Multiple User _ Neighborhood X Public Other Sewer System: _Individual _ Multiple User _ Neighborhood X Public Other Other Utilities: X Cable TV X Telephone X Electric X Gas Other Solid Waste: _Home Pickup _ Central Storage _ Contract Hauler _ Owner Haul Mail Delivery; Central X Individual School District Fire Protection: X Hydrants Tanker Recharge Fire District Drainage System: Surface drainage to detention / storm water quality control areas, then released into existing system at Highway 93 at W. Reserve Drive. PROPOSED EROSION / SEDIMENTATION CONTROL: All work on the Spring Prairie Center commercial project shall incorporate storm water Best Management Practices (BMP's) during construction and shall comply with Montana DEQ's Storm Water Discharge permits and regulations. Storm water will be detained and treated on -site and released at the predevelopment release rates as identified in the design report prepared in accordance with DEQ Circular 8. Sedimentation and erosion during construction and at final stabilization, at the conclusion of construction, shall be in accordance with state and local regulations and with the storm water discharge permit. The Owner and their Consultants, prior to the start of construction, shall complete the following forms for the storm water discharge permit: Notice of Intent Form and the Storm Water Pollution Prevention Plan. VARIANCES: ARE ANY VARIANCES REQUESTED? No If yes, please complete the information below SECTION / REGULATION OF REGULATIONS CREATING HARDSHIP: N/A EXPLAIN THE HARDSHIP THAT WOULD BE CREATED WITH STRICT COMPLIANCE OF REGULATIONS: N/A PROPOSED ALTERNATIVE(S) TO STRICT COMPLIANCES WITH ABOVE REGULATIONS: N/A PLEASE ANSWER THE FOLLOWING QUESTIONS IN THE SPACES PROVIDED BELOW: 1. Will the granting of the variance be detrimental to the public health, safety or general welfare or injurious to other adjoining properties? N/A 2. Will the variance cause a substantial increase in public costs? N/A 3. Will the variance affect, in any manner, the provisions of any adopted zoning regulations or Master Plan? N/A 4. Are there special circumstances related to the physical characteristics of the site (topography, shape, etc.) that create the hardship? N/A 5. What other conditions are unique to this property that create the need for a variance? N/A T 54 'a LOT 4 41 4FN I 2e 3M - ---------- UDLOT 1 3D ............... .. .. ............ ... ... - ----- ------------- — - ---- -- ----- ---- - --- -- PLO .0.0 B-2 ---- ------ T RESERVE DR' - - -------- ----- OT 2 34 -- - ---------------------- yQ4 -------- ... -- - -------- - — ----------- .......... PUD/ 3' L LOT 3 cob 4r. N UD LDT 4 R-1 lil RXPhGLEDR 7 4- 4J R 4 ZONING 7A 7B VICINITY MAP GOLDBER'll-.1 PROPERTLIES, INC PRELIMINARY PLAT — "SPRING PRAIRIE CENTER A 29 T OT COMMERCIAL SUBDI ISION ON 54.37 ACRES T T C Mp IN A B-5--NDUSr-io,���IA'-�L/'COMMERC!Ai-. DIES71i'l I WT i"PH A PLANNED UNIT DEVELOPMENT 'PUD"' OVERLAY 7TLE# KPP_-03-14 4L SCEF 800' PLDT DATE- 10/1"3 Z_ M\A-,\site\kppO3—l4-dwg ORDINANCE NO. 1404 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, incorporated herein, and thereby made a part hereof, is hereby approved, subject to the following conditions: 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 hmsmi 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 timing 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. 11. 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. WM . E . 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 DEVELOPMENT PARTIES AND PURPOSE: This Agreement made and entered into this, d C day of��2001 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 orderto allowthe 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 36 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. - 1 - 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'/ 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 '/4 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'/ 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'/ 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. - 2 - 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. 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: - 3 - (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) Development 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, ortechnology 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 - 4 - 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 - 5 - 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; Wei 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); - 6 - 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 - 7 - sign area ofl 60 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 - 8 - 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 least 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 - 9 - 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 II (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 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 PUD 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 POD — Zoning Classification R-4 - 12 - (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) - 13 - (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 8) 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 - i5 - specified herein by the listed performance standards or by language within the adopted neighborhood plan (see Section 27.22.120, KZO). (H) 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. 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. 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. (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) DNRC 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. (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 Permitfrom 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. 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. 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. - 23 - Vt. 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. 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. 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. This Agreement shall be binding upon and inure to the benefit of the respective parties, heirs, successors and assigns. Dated this � day of -DECSi�t3 Z, 2001. DEPARTMENT OF NATURAL RESOURCES By: " 1 � C C Jon A. D6hlberg Area Manager, Northwestern Land O ice - 24 - CITY OF KALISPELL gy: A ,x)-_.— Chris A. Kukulski City Manager STATE OF MONTANA ) ) ss. County of Flathead ) Attest: Theresa White City Clerk On this � day c4Z2CF-bg 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 Ngibral Resources, the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same on behalf of the,i�bid entity --) il p• .' SAY• . • Q •''���' Nota Public fo the Stat of Montana Resid gat r . My Commission Expir s PlJBLI STAT-RZP i&NTANA ) ) ss. County of Flathead ) On this .t-L�(—day 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. "o Notary Public for the State of Montana Residing at My Commission Expires Q. 2sj c)-4 - 25 - 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 i 1_' ' •1 Commercial POD and B•, 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 89059'28" 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 I5°45'40", more or less, an are 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 00'04'18" 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 89057'39" East 117.29 feet, South 01°26'09" 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 Expanded e .1 Commercial and BZoning 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, 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°02'21" East 30.00 feet, North 89°57'39" East 117.29 feet, South 01'26'09" 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 Mixed Professional POD and R-5 Zonino, tn 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 comer of the Northeast 1/4 of said Section 36; thence along the northerly boundary of said aliquot part, North 89°57'39" 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 °30'52", more or less, an arc 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 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. Mixed Residential POD and R-4 Zonhq., 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. EXHIBIT "F" DECLARATION O COVENANTS,s s 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 36 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. Section 1 : "Declarant" herein mentioned is State of Montana/Department of Natural Resources and Conservation. 1 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 IL 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 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 3 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: M ARTICLE III. 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"/"B- 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. 5 Section 2. Continuity of Construction: All structures shall have the exterior completed within twelve (12) 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: 10 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. 0 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 pro -rated 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. NO 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 9 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 VIII. 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. 10 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 ) ss. County of Flathead ) STATE OF MONTANA/DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION as 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. 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