01a. Public Hearing on Domesite PUDThe City of Kalispell
Incorporated 1892
Office of the City Attorney
Glen Neier, City Attorney P.O. Box 1997
Richard Hickel, Asst. City Attorney Kalispell MT 59903-1997
Telephone: (406) 758-7708
Fax (406) 758-7771
TO: Mayor Boharski and City Council
FROM: Rich Hickel, Asst. City Attorney
Glen Neier, City Attorney
SUBJECT: DOMESITE PUD Agreement/State Shop Annexation
MEETING DATE: May 17, 1999
BACKGROUND: The proposed developers of the NUPAC and MDOT sites
north of Kalispell have been in negotiations with City Staff for
approximately one month. DOMESITE, L.L.C. has proposed taking over
development of the site in accordance with the PUD application
previously submitted by ValleyDome L.L.C. This Office has reviewed
the legality of substituting the current developers for the former
developer and does not see legal barriers thereto. The PUD
Agreement submitted for your consideration was prepared by this
Office, based on the information submitted by the Developers. We
have attempted to adhere to FRDO recommendations as closely as
possible. Not all recommendations of FRDO are incorporated into
the document, however. One difference concerns timing of the
development. FRDO's recommendation provides that dome construction
begin in Phase I, while the PUD Agreement proposes the dome for
Phase III. FRDO staff is in the best position to comment on their
review conducted on the initial PUD Application. Admittedly, the
PUD Agreement lacks detail, but the Developer has made it clear
that the ultimate design of the project will be determined by
market needs which remain in the preliminary stages at this time.
The State Shop Annexation is made pursuant to request by the
MDOT, through its attorney, Timothy Reardon. It is my understanding
that the developers of the site are in the process of negotiating
for the purchase of an alternative site for the MDOT shop. City
staff has not been involved in the negotiations for the proposed
land swap and we therefore do not know when a deal may be
completed. The annexation is linked to the PUD approval. Further
the annexation must be completed before the Council may take final
action on the PUD.
RECOMMENDATIONS: Inquiry should be made with Developer with
regard to specifics of the ultimate development plan. FRDO staff
should be given the opportunity to provide input regarding their
review of the PUD Application and the proposed PUD Agreement.
Two significant details have not as of the date of this memo
been resolved through negotiations between Domesite/Pack and the
City. The Developer has proposed a phased bonding program on
infrastructure improvements associated with the project, or in the
alternative, pledge land as security for infrastructure. Both
approaches are quite novel, and depart significantly from the past
City approach of requiring bonds for all infrastructure up -front.
The Developer has indicated a reluctance to pledge security other
than the above -mentioned. This office is reluctant to agree to a
security arrangement which does not in our opinion fully protect
the City's interest in installation of the infrastructure.
FRDO has recommended and the Developer has agreed to a
proposed "village concept" for the commercial development on the
property. However, reducing such to writing is difficult because
of the preliminary status of the project in terms of overall
development. Neither the City nor the Developer have sufficient
information at this time to describe design, uses and locations
with any particularity.
It is this office's understanding that Council approval of the
PUD Agreement is a prerequisite to the proposed annexation. It is
recommended that a "straw vote" be taken on the PUD Agreement prior
to taking action on the annexation. If the PUD is approved by a
straw vote, then official action may be taken on the annexation,
followed by official action on the PUD Agreement.
FISCAL EFFECTS: Actual effects cannot be determined at this
time since the scope and details of the project have not been
settled by the developer. The project has the potential to expand
the tax base. There will be increased needs for City services.
Rezoning the property from I-1 to B-2 will provide additional space
for commercial development. Impact on existing downtown business
is unknown.
ALTERNATIVES: (1) Accept the PUD Agreement as written and approve
the Annexation request;
(2) Deny the Application for the PUD and
Annexation;
(3) Modify the PUD plan;
(4) Send the Application back to FRDO for re -review
as a commercial development without guarantee of
the Dome construction;
(5) Other suggestions which
Council.
Rich Hi kel en Neie
Asst. City Attorney City Atto
y be raised by
Report compiled May 13, 1999
Attachments: The proposed PUD Agreement is contained in your
materials.
�(I Fr -v6
-7/f9
DOMESITE PLANNED UNIT DEVELOPMENT AGREEMENT
This Agreement made and entered into this day of ,
1999, is by and between Domesite, L.L.C., a Minnesota Limited
Liability Corporation, with its office and principal place of
business located at 50 South Ninth Street, Ste. 200, Minneapolis,
Minnesota, hereinafter DOMESITE, Pack and Company, with its office
and principal place of business at 2355 Highway 93 North,
Kalispell, Montana, hereinafter PACK, and the City of Kalispell, a
municipal corporation, with its office and principal place of
business located at 312 lst Avenue East, Kalispell, Montana 59901,
hereinafter CITY:
W I T N E S S E T H:
WHEREAS, DOMESITE is the contract purchaser and consensual
developer with PACK of certain real property located in
Flathead County, Montana, which is further described in
Exhibit "A" attached hereto and hereby made a part
hereof, and which hereinafter is referred to as the
"Subject Property"; and,
WHEREAS, DOMESITE, PACK, and the present fee owners of the Subject
Property have made request or intend to request
annexation of the property described into the City of
Kalispell; and,
WHEREAS, (i) DOMESITE and PACK desire to have the Subject Property
rezoned from Industrial (I-1) to a Commercial (B-2)
Planned Unit Development (PUD), mapped with certain new
streets, building locations and accesses from U.S.
Highway. #93 and West Reserve Drive; (ii) PACK, has filed
a PUD and Annexation application which contains (a) Zone
change application, (b) PUD Narrative with Exhibits (c)
perimeter legal description, (d) Title Report, (e) land
owner consent to plan and (f) large map exhibit; and,
WHEREAS, in order to allow the PUD and Annexation, assure the
installation of infrastructure improvements with 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.
DOMESITE PUD AGREEMENT -1-
I. DEFINITIONS
1.01 Agreement shall mean this Planned Unit Development Agreement
between DOMESITE, PACK, 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 DOMESITE with respect to Areas A and B of
the Subject Property, and PACK or its successor in interest
with regard to Area C of the Subject Property.
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 Master Site Plan means the site plan proposed for the
development of the Subject Property annexed hereto as Exhibit
B.
1.09 Project Site Plan means the site plan proposed for the
development of the Subject Property annexed hereto as Exhibit
C.
1.10 Phase means a stage of development within a portion of the
Subject Property designated in the Master Site Plan.
1.11 Proposed Buildings means the buildings shown on the Master
Site Plan, contemplated to be built in phases.
1.12 Subject Property or Subject Area means the real property
described in Exhibit "A" annexed hereto and made a part
hereof.
1.13 Substantial Completion shall mean that substantially all of
the work to be performed in the development of each Phase
shall have been performed and the improvements 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.
DOMESITE PUD AGREEMENT -2-
II. GENERAL DEVELOPMENT AND USE OF THE SUBJECT PROPERTY
2.01 Development Overview
(A) Subject to the other provisions of this Agreement, any
development within or use of the Subject Property
occurring after the effective date of this Agreement
shall substantially conform to and comply with the
provisions of the PUD Application of July 22, 1998, as
amended and approved by the FRDO Staff Report #KPUD-98-1
and the City County Planning Board meeting on August 11,
1998, and the documents and drawings annexed to this
Agreement.
(B) Developer represents, and it is agreed between the
parties, that the development of the Subject Property
shall be accomplished in Phases, as follows:
(1) Phase I shall consist of (i) ground preparation and
site leveling of the entirety of the Subject Area;
and, (ii) the construction, installation, and
extension of utility mains and water lines to the
Subject Area.
(2) Phase II shall consist of construction of the
roads, parking lots, landscaping, and other site
improvements and interior streets in those portions
of the Subject Area comprising "Area A" and "Area
B" as described on the Site Plan, which may be
installed as each area is developed within the
site, and which may be developed to the extent
necessary to serve each area during development.
(3) Phase III shall consist of final site preparation,
streets, installation of parking lots, landscaping,
and construction of the building improvements in
that portion of the Subject Areas comprising "Area
C" as described on the Site Plan, specifically the
coliseum, main convention center, and adjoining
facilities.
(C) Notwithstanding paragraph 2.01(B)(1) above, it is
anticipated that site preparation and ground leveling of
areas currently occupied by batch plant facilities will
be delayed during the construction phases described
above, for a term not to exceed five (5) years, after
which, it is agreed that removal and relocation of the
NUPAC batch plant, associated equipment, and warehouses
will be completed.
DOMESITE PUD AGREEMENT - 3-
(D) Developer represents, and it is agreed between the
parties, that the highest point of the roof or parapet
wall of the buildings constructed on the Subject
Property, when measured from the average level of the
finished ground surface surrounding the structure within
a distance of twenty feet (201), shall not exceed thirty
feet (301) in Area A, shall not exceed fifty-five feet
(551) in Area B, and in Area C, the coliseum shall not
exceed a height of 110 feet (110').
(E) The use of large blank walls on the buildings within the
development, particularly Area A which face U.S. Highway
#93 and West Reserve Drive, shall be minimized.
2.02 Uses
(A) The primary use of Areas A and B of the Subject Property
shall comprise a variety of commercial uses, including
but not limited to retail establishments, offices,
restaurants, hotels, and other similar uses, but shall
not include commercial establishments which require large
areas for outdoor displays, such as automobile sales,
recreational vehicle sales, boat sales, and other similar
uses. It is agreed that no more than 25% of the
merchandise- placed for display for sales by any
commercial user may be placed outdoors.
(B) Area C shall be comprised of a sports and multipurpose
coliseum complex, with additional commercial amenities
adjacent thereto.
(C) Developer agrees that building design and construction
upon the Subject Property shall conform to the relevant
Building Departments regulations governing commercial
construction.
(D) Developer agrees that the development shall be comprised
of buildings with a consistent architectural theme as
initially determined by the Developer, that will convey
a "village concept."
2.03 Ownership
(A) In Areas A and B, DOMESITE represents, and it is agreed
between the parties, that the Subject Property and
buildings constructed thereon may be conveyed, with
ownership transferred by DOMESITE to the building
DOMESITE PUD AGREEMENT -4-
occupant. It is anticipated that ownership of a portion
of the property comprising Areas A and B will remain in
DOMESITE, which will enter into leases with the occupants
of the buildings constructed thereon.
(B) In Area C, it is anticipated
fee simple with PACK until
developer has been procured
construction of the coliseum
underlying real property in
contract between the current
coliseum complex developer.
2.04 Relationship to Zoning Ordinance
that title will remain in
such time as a suitable
to commence and complete
complex. Ownership of the
Area C will be subject to
fee owner and the future
Except as specifically modified or superseded by this
Agreement and attached drawings, the PUD Application of July
22, 1998 as amended and approved in the FRDO Staff Report
#KPUD-98-1 and the City County Planning Board on August 11,
1998, the laws, rules, and regulations of the City of
Kalispell governing the use and development of land and
buildings, including the City of Kalispell Zoning Ordinance,
shall apply to the Subject Property.
2.05 Drawings
The site plan drawings attached and the PUD Application dated
July 22, 1998 as amended and approved in the FRDO Staff Report
#KPUD-98-1 and the City County Planning Board on August 11,
1998, are an integral and essential component of this
Agreement and are incorporated herein by reference.
2.06 Effectiveness and Cancellation
(A) The provisions of this Agreement regarding construction
of improvements on the Subject Property shall become
effective simultaneously with the approval of the PUD
Ordinance and Annexation request by the City Council and
shall terminate upon the issuance of a building permit(s)
for development of the last Phase on the Subject
Property, as set forth above. This Agreement may only be
modified or amended as set forth in Article V, hereof.
(B) Notwithstanding the terms of paragraph (A), supra, upon
the termination of this Agreement, the terms of this
Commercial PUD related to zoning shall continue to be
effective as the regulations pertaining to the DOMESITE
Planned Unit Development.
DOMESITE PUD AGREEMENT - 5-
2.07 Certification Procedure
Whenever under this Development Agreement a certificate by the
Director of Public Works is required to be given, such
certificate shall be given after the receipt of a completed
application therefor and approved by the Director. Such an
application shall be deemed completed upon receipt of such
drawings and narrative information as are reasonably necessary
for the issuance of such certificate, which certification
shall not be unreasonably withheld or delayed.
III. SITE CONDITIONS
3.01 Development
The Subject Property shall be developed with the
infrastructure improvements as described in this Agreement.
3.02 Access
(A) Primary access to the Subject Property shall be via the
major entrances located on the south boundary of the
Subject Property from U.S. Highway #93 and on the east
boundary of the Subject Property from West Reserve Drive.
Secondary accesses will be provided via four (4) right -
turn only accesses, both in and out, along U.S. Highway
#93 North and on West Reserve Street, as shown on Exhibit
"A. -"r
(B) DOMESITE agrees that it shall, at its owns expense, have
a comprehensive traffic impact study completed, which
will identify all expected traffic impacts and will
provide proposals for mitigation.
(1) Following completion of the comprehensive study,
Developers will obtain all necessary access permits
from the Montana Department of Transportation
and/or Flathead County Road Department and CITY
prior to use.
(2) Developers agree to pay for
turn lanes, traffic signals,
signs and signals directly
and egress to and from U.S.
Reserve Drive, as required
traffic study and CITY.
DOMESITE PUD AGREEMENT - 6-
all necessary traffic
and other regulatory
pertaining to ingress
Highway #93 and West
by the comprehensive
(C) 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.
(D) The two primary accesses shall be constructed to
accommodate a multi -lane roadway which will be
constructed along the south and east perimeter boundaries
of the Subject Area, as shown on Exhibit "A," which
roadway shall comply with recommendations of the traffic
study referred to above, and which shall be reviewed and
subject to approval by CITY.
(E) Emergency fire, ambulance, police and public vehicle
access shall be at all times available through said
primary and secondary access without impediment.
3.03 Private Internal Roadways, Bike Paths and Sidewalks
(A) DOMESITE and PACK acknowledge that the development of the
Subject Property includes development, at the Developer's
expense, of internal roadways providing access to the
lots within the PUD.
(B) Developers agree that the interior roadways within the
PUD shall be constructed to CITY standards with curb,
gutter, and sidewalks on at least one side of the
roadways, in accordance with the proposed Site drawings
and applicable CITY Standards for Design and Construction
for local and collector streets, as amended to account
for multi -lane road traffic with respect to the main
access roadway.
(C) Internal local and connector streets and roadways, with
landscaping amenities shall be constructed as necessary
to service all building sites and lots requiring access,
and shall be named and signed in accordance with the City
Standards for Design and Construction.
(D) DOMESITE and PACK agree that they will maintain all
internal streets, boulevards, and sidewalks as private
with unrestricted public access.
(1) Sidewalks__ shall be provided as shown on the Site
Plan, in addition to sidewalks which will connect
Area A to the west with Area B to the east, within
the medians indicated on the Site Plan at the
perimeter of the parking lots.
DOMESITE PUD AGREEMENT -7 -
(2) There will be a minimum of one pedestrian sidewalk
connection between Area B and Area C, which will be
located between Lots 8, 9, 10, 11, and 12, at
Developer's discretion.
(E) The primary access roadway shall consist of a multi -lane
roadway as required by the traffic study referred to
above and shall be located on the south boundary of the
Subject Property which intersects with U.S. Highway #93,
and continuing to the east boundary of the Subject
Property where it will intersect with West Reserve Drive.
(1) It is anticipated that construction of the multi-
lane roadway will be accomplished in conjunction
with the development phases.
(2) Developers and CITY agree that during the
development of Areas A and B, an improved roadway,
the size of which will be determined by the traffic
study and which will be subject to approval by the
CITY, will be permissible for interior site access.
(3) At such time as construction of the building
structures is commenced in Area C, Developer will
at that time be required to expand the primary
access roadway to multiple lanes as provided in the
FRDO Staff Report #KPUD-98-1, dated August 4, 1998,
as amended August 11, 1998, and as required by the
traffic study to be completed by Developer in
accordance with this Agreement.
(4) The primary access multi -lane roadway along the
perimeter of the Subject Property shall be designed
and developed so that it does not exceed a six -
percent (6%) grade in any area. Lanes shall be
twelve feet (121) in width with a five foot (51)
wide bicycle path on each side.
(5) The primary access roadway shall be posted with a
maximum 25 mile per hour speed limit.
(6) Following completion of the main access roadway as
part of Phase III of the Development, it is agreed
that the main roadway -located on the southerly
boundary and continuing on the easterly boundary of
the Subject Property shall be dedicated to the
public and shall at that time be maintained by CITY
in the same manner as other publicly -dedicated CITY
roadways.
DOMESITE PUD AGREEMENT -8-
(F) Prior to the Building Department issuing any permit of
any foundation or building permit on a Phase, Developers
shall furnish security for the development, in
substantial conformity to and compliance with the
provisions of this Agreement, of the improvements
specified in this section. Such security shall consist
of, at the sole option of Developers, performance bond(s)
issued by a surety company licensed to do business in
Montana, irrevocable letter(s) of credit issued by a bank
licensed to do business in Montana, the real property
subject to this PUD Agreement, or such other security as
shall be reasonably acceptable to the CITY. Such
security shall be for the benefit of and enforceable and
collectible by the CITY, acting through the City Manager,
and shall be in an initial face amount equal to 125% of
the direct estimated cost of the work so secured, as
certified by Developer's licensed professional engineer
and the City's Director of Public Works. If such security
consist of letter(s) of credit, the face amount thereof
shall be reduced by Developer from time to time in an
amount equal to three-quarters of the cost of the work
completed, as certified by Developer's licensed
professional engineer and approved by the City's Director
of Public Works. Determination of the amount of the
reduction shall be made within 30 days of receipt by the
Public Works Director of said certification. Developer
may request final release of the performance bond upon
filing with the Building Department a Notice of
Completion, which will then be reviewed by CITY for final
approval.
(1) In the event land is offered as collateral
security, it is agreed that the value of the land
shall be adequate to provide CITY with the
guarantees of performance required under this
section.
(2) It is further agreed, that as each parcel of land
is developed, bond security will be substituted for
the land, such that the entirety of the
infrastructure improvement required hereunder are
continually guaranteed throughout all phases of
development of the Subject Property. -
(3) In the event Developer appears to be prospectively
unable to complete its obligations under this
Agreement, or is otherwise unwilling to complete
its obligations under this Agreement, the CITY may,
at its option, demand that Developer provide CITY
DOMESITE PUD AGREEMENT - 9-
reasonable assurance of future performance, which
may include, but not be limited to the following
options:
(i) Transfer of unencumbered fee title to the
undeveloped portions of the Subject Property
owned by Developer, to the CITY;
(ii) Require the Developer to post bond security in
sufficient amounts to guarantee completion of
all infrastructure improvements on the real
property;
(iii)Any other similar forms of security reasonably
deemed adequate by CITY to assure completion
of the infrastructure improvements on the
entirety of the Subject Property.
(4) In no event shall this Agreement be construed as to
require CITY to complete installation of
infrastructure improvements on the Subject
Property, or on any portion thereof, during any
phase of development of the Subject Property.
3.04 Sewer and Water
(A) Sanitary sewer service to the Subject Area shall be
accomplished via extension from the existing twelve inch
(12") main existing at the current terminus near the
Flathead Valley Community College (FVCC). Said sanitary
sewer service shall be stubbed out at the further
boundary through the property, in accordance with the
CITY Extension of Services policy.
(B) CITY agrees that water service to the Subject Area may be
provided by means other than a looped extension of the
existing twelve inch (12") line which will be extended to
the Subject Area from the current terminus near FVCC. An
existing on -site water well will provide an alternative
source of water service to the Subject Property, in the
event maintenance requires a shutdown of the CITY water
main to the Subject Property.
(1) DOMESITE and PACK agree that the on -site water well
will be constructed in accordance with the City of
Kalispell's Standards for Design and Construction.
(2) The on -site water well will be capable of producing
sufficient quantities of water necessary to service
DOMESITE PUD AGREEMENT -10-
needs to the Subject Property, as determined by
hydraulic modeling tests, to be prepared by
Developer prior to construction on the Subject
Property. All costs associated with upgrade of the
on -site water well, necessary to meet applicable
City of Kalispell Standards and needs as determined
by hydraulic modeling tests, shall be borne by
Developer.
(3) PACK represents and agrees that a valid water
appropriation right has been filed and is of record
with the State of Montana Department of Natural
Resources and Conservation (DNRC). PACK agrees
that this water right shall be transferred to the
CITY at no cost to CITY at the completion of the
project. At its option, PACK may transfer
ownership of the said water well to CITY prior to
completion of construction, with the understanding
that CITY will not charge PACK or the Developer for
well water used on -site during construction.
(C) All sanitary sewer and water utilities shall be designed
and installed as shown on Project Plan C4.1, and in
accordance with the City of Kalispell's Standards for
Design and Construction.
(D) All utility infrastructure located within the Subject
Property shall be the property and maintenance
responsibility of Developers, until such time as the
installation is completed and dedicated to the public.
(E) Developer agrees to obtain all necessary easements for
the extension of water and sewer to the Subject Property.
In addition, Developer will grant to CITY any and all
easements necessary for CITY to perform maintenance of
water and sewer lines installed pursuant to this
Agreement.
(F) No expansion of the sanitary sewer system is anticipated.
However, in the event that CITY requires installation or
expansion of water and/or sewer lines larger than those
required to service the current needs of CITY and of
Developer as determined by hydraulic modeling tests, then
CITY shall pay those only costs associated with the
increased utility main sizing to the Subject Property.
(G) Prior to the Building Department issuing any permit of
any foundation or building permit on a Phase, Developers
shall furnish security for the development, in
DOMESITE PUD AGREEMENT -11-
substantial conformity to and compliance with the
provisions of this Agreement, of the improvements
specified in this section. Such security shall consist
of, at the sole option of Developer, performance bond(s)
issued by a surety company licensed to do business in
Montana, irrevocable letter(s) of credit issued by a bank
licensed to do business in Montana, the real property
subject to the PUD Agreement, or such other security as
shall be reasonably acceptable to the City. Such
security shall be for the benefit of and enforceable and
collectible by the City, acting through the City Manager,
and shall be in an initial face amount equal to 125% of
the direct estimated cost of the work so secured, as
certified by Developer's licensed professional engineer
and the City's Director of Public Works. If such security
consist of letter(s) of credit, the face amount thereof
shall be reduced by Developer from time to time in an
amount equal to three-quarters of the cost of the work
completed, as certified by Developer's licensed
professional engineer and approved by the City's Director
of Public Works. Determination of the amount of the
reduction shall be made within 30 days of receipt by the
Public Works Director of said certification. Developer
may request final release of the performance bond upon
filing with the Department of Public Works a Notice of
Completion, which will then be reviewed by CITY for final
approval.
(1) In the event land is offered as collateral
security, it is agreed that the value of the land
shall be adequate to provide CITY with the
guarantees of performance required under this
section.
(2) It is further agreed, that as each parcel of land
is developed, bond security will be substituted for
the land, such that the entirety of the
infrastructure improvement required hereunder are
continually guaranteed throughout all phases of
development of the Subject Property.
(3) In the event Developer appears to be prospectively
unable to complete its obligations under this
Agreement, or is otherwise unwilling to complete
its obligations under this Agreement, the CITY may,
at its option, demand that Developer provide CITY
reasonable assurance of future performance, which
DOMESITE PUD AGREEMENT - 1 2 -
may include, but not be limited to the following
options:
(i) Transfer of unencumbered fee title to the
undeveloped portions of the Subject Property
owned by Developer, to the CITY;
(ii) Require the Developer to post bond security in
sufficient amounts to guarantee completion of
all infrastructure improvements on the real
property;
(iii)Any other similar forms of security reasonably
deemed adequate by CITY to assure completion
of the infrastructure improvements on the
entirety of the Subject Property.
(4) In no event shall this Agreement be construed as to
require CITY to complete installation of
infrastructure improvements on the Subject
Property, or on any portion thereof, during any
phase of development of the Subject Property.
(H) Following completion of installation of the sewer and
water lines on the Subject Property by Developer, it is
agreed that the said utility lines shall be dedicated to
CITY, and shall at that time 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 as
shown on the Project Site Plan and shall be handled in
accordance with regulations of the CITY and the Montana
Department of Environmental Quality.
(B) Storm Water will not be retained, treated or discharged
off -site.
3.06 Site Grading
(A) Site Grading of the Subject Property shall be subject to
the City of Kalispell's Emission Control Plan and CITY
Standards for Design and Construction.
DOMESITE PUD AGREEMENT -13-
(B) Prior to commencement of site grading DOMESITE and PACK
agree 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.
(C) A site grading plan shall be submitted to the Director of
Public Works for review and approval prior to the
commencement of any grading work.
3.07 Fire Suppression
(A) Prior to the Building Department issuing any permit of
any foundation or building permit on a Phase, the Fire
Chief for CITY must certify that Developer 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 beacceptableto the ��Fire Chief.
i k CGa 4_ Lv r �e` C
(B) DOMESITE and PACK agree to instZll a hydrants and water
mains 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) Street trees shall be placed within the landscaped
boulevard for the street connecting the primary access
with the secondary access and be spaced at 50 foot
intervals and shall be a minimum of two-inch caliper at
planting.
(B) The primary access roadway shall have a one hundred foot
(100') landscaped median in the middle lane at each major
perimeter road entrance as shown on the Site Plan and a
landscaped median for the entire length of the radius of
the turn at the southeast perimeter corner of Area C of
the Subject Property.
(C) Landscaping and shrubbery in interior parking lots other
than along pedestrian sidewalks will be installed and
maintained below driver eye level to facilitate rapid
recognition of potential driving hazards and to increase
public safety.
(D) Except as hereinafter provided, retaining walls in excess
of six feet (6') tall shall be minimized.
DOMESITE PUD AGREEMENT —1 4—
(1) In the area of the coliseum/convention center
loading dock, retaining walls higher than six feet
(61) will be permissible.
(2) It is anticipated that landscape terracing will be
utilizing retaining walls for the transition area
between Areas B and C.
(E) The landscaping along U.S. Highway #93 and West Reserve
Drive shall include street trees placed at seventy-five
foot (751) intervals which are a minimum two-inch caliper
at planting.
(F) In Area B, a landscaped area will be installed at the end
of each parking aisle and the parking medians which will
include a minimum of one street tree with a minimum of
one -inch caliper at planting, along with other shrubs or
greenery.
3.09 Off -site Bike Paths
DOMESITE agrees to install a bike path along U.S. Highway #93
and West Reserve Drive as shown on the Site Plan, which will
be consistent with the existing bike path along U.S. Highway
#93, as soon as site conditions allow, or are practical.
Internal bike paths on the Subject Property shall be
constructed in accordance with requirements set forth above in
Section 3.03.
3.10 Lighting
(A) Developers shall submit a lighting plan __to CITY which
utilizes attractive lighting fixtures and a type and
level of lighting not exceeding what is appropriate for
its purpose and which is consistent with all existing
ordinances of the CITY.
(B) The lighting plan shall be reviewed and approved by the
Director of Public Works.
3.11 Signage
(A) Developers agree to submit a sign plan to the Kalispell
Zoning Administrator which complies with the Kalispell
Zoning Ordinance.
(B) The major entrance signs located at the entrances from
U.S. Highway #93 and West Reserve Drive shall not exceed
DOMESITE PUD AGREEMENT -15-
a height of thirty-five feet (351) and shall not exceed
thirty-five feet (35') in width. Reader board signs in
these locations with a surface area of ten feet (10') by
twenty-four feet (241) will be acceptable, with
substantial supports utilizing masonry facing.
(C) All signage on the Subject Property shall be made of
natural colors and materials and utilize an integrated
architectural design of lettering and materials
compatible with the needs of activity sponsors and
building owners and tenants.
(D) It is specifically agreed that the large entrance sign
referred to in part 3.11(B) above, will not be installed
until construction of the proposed Dome as part of Phase
III of the Development project.
(E) Sculptures at the entrances not exceeding the size
limitations for signage will be acceptable.
(F) Final sign design will be subject to the approval of the
Kalispell City Council.
(G) It is agreed that no signage will be permitted on the
Subject Property advertising activities taking place at
locations other than on the Subject Property.
IV. CITY SEWER/WATER CONNECTION FEES
4.01 Connection Fee Schedule
(A) Connection fees for connection to the City Water and
Sewer Utility, based upon Resolution No. 4287 and
Resolution No. 4288, will be determined in accordance
with CITY Standards and fee schedules, then in effect for
commercial structures of the type to be placed on the
Subject Property.
(B) Developer agrees to pay the connection fees associated
with the utility connections at the time of obtaining the
Building Permit for each structure.
(C) Developer will be entitled to reimbursement of a portion
of the costs of installation and extension of sewer and
water lines through "latecomer's fees" which shall be
recovered in accordance with an agreement to be prepared
within thirty (30) days of this agreement providing that
all design costs, construction costs, right-of-way
DOMESITE PUD AGREEMENT - 1 6-
acquisition costs, or other costs incidental to providing
sewer and water to the Project Site shall be subject to
reimbursement from latecomer's.
(1) These costs shall be prorated to latecomers based
on land area owned or controlled by latecomers who
connect to sewer lines and water lines after
installation thereof by the Developer.
(2) It is further agreed that square footage owned or
controlled by the Developer or his successors and
assigns shall be included in the overall
computation of total square footage for purposes of
determining the appropriate prorated latecomer's
fee.
V. AMENDMENT OR MODIFICATIONS OF AGREEMENT
5.01 Amendment or Modification Procedures
This Development Agreement may be amended or modified only by
application of Developer(s), 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 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.
DOMESITE PUD AGREEMENT -17-
(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) Developers may appeal the decision of the Site Review
Committee to the City Manager or City Council, who may
affirm, reverse or modify the Site Review Committee
decision.
VI. CONSTRUCTION PHASING
6.01 General Requirements
No building permit in respect to the construction in any Phase
shall be issued by the Building Department until:
(A) The Zoning Administrator has certified to the Building
Department that the proposed building(s) substantially
conform to the Master Site Plan and §§2.01, 2.02 and 2.05
of this Agreement.
(B) The Director of Public Works has certified to the
Building Department that the infrastructure improvements
and roads referenced in this Agreement and/or shown on
the Project Site Plan have been constructed or security
guaranteeing the construction has been received by the
City.
(C) For purposes of this Section, the "Security" required
shall be in an amount equal to 125% of the Developer's
licensed engineer's estimate of the cost of constructing
said improvements.
VII. MISCELLANEOUS
7.01 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 severable and the remainder of this Agreement shall
continue to be of full force and effect.
DOMESITE PUD AGREEMENT - 1 8 -
7.02 Recordation
This Agreement shall be recorded in the Office of the Flathead
County Clerk and Recorder.
7.03 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.
7.04 Binding Effect
This Agreement shall be binding upon and inure to the benefit
of the respective parties, heirs, successors and assigns.
Dated this
DOMESITE, L.L.C.
M
Its:
CITY OF KALISPELL
Its:
day of , 1999.
PACK and COMPANY
By:
Its:
Attest:
By:
Its:
DOMESITE PUD AGREEMENT -19-
STATE OF MONTANA }
) ss.
County of Flathead )
On this day of , 1999, before me the
undersigned, a Notary Public for the State of Montana, personally
appeared known to me to be the authorized
representative for DOMESITE, L.L.C., the person whose name is
subscribed to the foregoing instrument and acknowledged to me that
he/she 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
undersigned, a Notary Public for the
appeared known
representative for PACK and COMPANY
subscribed to the foregoing instrument
he/she executed the same on behalf of
STATE OF MONTANA )
) ss.
County of Flathead )
, 1999, before me the
State of Montana, personally
to me to be the authorized
the person whose name is
and acknowledged to me that
the said entity.
Notary Public for the State of Montana
Residing at
My Commission Expires
On this day of , 1999, before me the undersigned,
a Notary Public for the State of Montana, personally appeared
known to me to be the
for the City of Kalispell, and the
for the City of Kalispell, the persons
whose names are subscribed to the foregoing instrument and
acknowledged to me that he/she executed the same on behalf of the
City of Kalispell.
Notary Public for the
Residing at
My Commission Expires
DOMESITE PUD AGREEMENT -2 0-
State of Montana