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01. Ordinance 1312 - Adopting Domesite PUD - 2nd ReadingAt �w - TO: Mayor Bill Boharski and Kalispell City Council FROM: Rich Hickel, Asst. City Attorney Glen Neier, City Attorney SUBJECT: DOMESITE, L.L.C. PUD Agreement --Final Draft MEETING DATE: June 7, 1999 BACKGROUND: This is the second reading on the proposed DOMESITE PUD Agreement. A meeting was held with the City Manager, the Public Works Director, the Asst. City Attorney and representatives of the Developer on Thursday, May 27, 1999 at the office of the City Manager. The items discussed were as follows: (1) Inclusion of a reference to the Uniform Fire Code under the Fire Suppression paragraph 3.07. This item was agreed to and included in Draft #7; (2) Clarification of the point made during the public hearing that the City would have a priority lien position on the undeveloped portion of the subject property, which would not be subordinated during the development stage of the property. The Developer (Ron Christianson) agreed this was his understanding. The real estate collateral is released as each lot is developed within the property and is then replaced by a commercial contractor's bond, which will ensure completion of the infrastructure improvements on the lot. (3) A note from Narda Wilson at FRDO was discussed with the Developer, providing a better description of the "village concept" referred to in the Agreement. Following discussion, most of what Narda proposed was incorporated into section 2.02(D) of Draft #7 of the Agreement. The Developer stated he would review the language in more detail and let us know if any changes were proposed. During a meeting held June 3, 1999, the Developer expressed concern with the proposed language. After further discussion and review of the PUD Application, it was agreed that the language used by the applicant's representative would be used to define the "village concept." The amended language was then inserted into section 2.02(D) of Draft #8. ml?"Y a 0.1 VQ 0 1 L911 • 11 • 1 •• Via. gw2a._.. Mayor and Council Memo Page 2 June 3, 1999 (4) The final item discussed was the issue of suitability of the on -site water well as an alternative to the looped water system. An analysis of the water well was conducted by Land & Water Consulting, Inc., at the request of the DPW. Based on information which has been provided thus far, L&W was unable to determine the feasibility of using the water well as an alternative source of supply to the development. The Developer has maintained that if the well cannot be brought up to Federal, State, and City Standards as a suitable alternative, the looped system alternative adversely affects the economic viability of the entire project. The Developer does not wish to commit to a looped system if the well will not work, so it was proposed and agreed that if the well does not provide adequate water to the site, that either the Developer or the City may rescind the Agreement in its entirety. In section 3.04(B), subparagraph (4) was added permitting a unilateral right to rescind by either party in the event the water well is found to be unacceptable and cannot be made acceptable through reasonable means. The current draft (#8) of the PUD Agreement addresses all the minor matters which remained outstanding during the first reading. The Agreement is in final form and is ready for final action by the Council. The Council may approve the Agreement, disapprove the Agreement, or propose a modification and bring the Agreement up for a Third Reading. RECObNENDATION: If the Agreement is found acceptable by the Council, it should approve the same at Second Reading. FISCAL EFFECTS: As indicated in my previous memo, the overall effect and timing of the fiscal effects cannot be measured at this time. The City will be providing services to the area which are not presently being provided. The Developer will be constructing the project in phases, the details of which will be dependent upon market conditions. Respectfully submitted, 'Rich Hickel, Asst. Ci y Attorney Chris Kukulski, City Manager ORDINANCE NO. 1312 AN ORDINANCE APPROVING A PLANNED UNIT DEVELOPMENT ON CERTAIN REAL PROPERTY OWNED BY THE DEPARTMENT OF TRANSPORTATION, STATE OF MONTANA AND PACK AND CO. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL, AS FOLLOWS: SECTION I. That the Planned Unit Development proposed by DOMESITE upon the real property described in Exhibit "A", attached hereto, incorporated herein, and thereby made a part hereof, is hereby approved, subject to: B) Development Agreement, dated , 1999, between DOMESITE and the City of Kalispell, [Exhibit "B", attached hereto, incorporated herein and thereby made a part hereof]. 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 17TH DAY OF MAY, 1999. Wm. E. Boharski Mayor ATTEST: Theresa White City Clerk H:\attsect\wp\pud\dome.wpd 1 EXHIBIT "A" Parcel 1 That portion of Government Lots 1 and 2, the Northeast Quarter of the Northwest Quarter, and the Southeast Quarter of the Northwest Quarter of Section 31, Township 29 North, Range 21 West, P.M.M., Flathead County, Montana, more particularly described as follows: Commencing at the Northwest corner of Section 31, Township 29 North, Range 21 West; thence along the North line of said section South 89°49'30" East, a distance of 70.00 feet to the Easterly line of U.S. Highway No. 93 right of way; thence along the Easterly line of said right of way South 00007' 10" West, a distance of 299.84 feet to the Point of Beginning of the parcel being descnbed; thence continuing along the Easterly line of said right of way South 00007' 10" West, a distance of 640.87 feet; thence leaving said right of way South 89°04'58" East, a distance of 464.06 feet; thence South 30°1734" East, a disatnce of 490.59-feet; thence South 35°16'49" West, a distance of 267.08 feet; thence South 00°05'30" East, a distance of 367.06 feet; thence South 89°58'50" East, a distance of 1100.31 feet; thence North 14°58'20" West, a distance of 1932.64 feet to the Southerly line of West Reserve Drive, a deeded County road; thence along the Southerly line of said West Reserve Drive the following courses: North 89°39'54" West, a distance of 363.71 feet, North 00°20'06" East, a distance of 20.00 feet, North 89038141" West, a distance of 374.94 feet, North 00°21' 16" East, a distance of 5.55 feet, and North 89°57'09" West, a distance of 107.45 feet to the Southeasterly line of that parcel described in Deed Document No. 9321115400, records of Flathead County, Montana; thence along the Southeasterly line of said parcel, South 18° 13' 15" West, a distance of 252.67 feet to the Southeasterly corner of said parcel; thence along the the Southerly line of said parcel, North 89°5622" West, a distance of 232.53 feet to the Point of Beginning. Parcel 1 of Certificate of Survey No. 12230. Excepting therefrom public roads and rights of way. Parcel 2 That portion of Government Lots 1 and 2 of Section 31, Township 29 North, Range 21 West, P.M.M., Flathead County, Montana, more particularly described as follows: Commencing at the Northwest corner of Section 31, Township 29 North, Range 21 West; thence along the North line of said Section South 89°49'30" East, a distance of 70.00 feet to the Easterly line of U.S. Highway No. 93 right of way; thence along the Easterly line of said right of way South 00°07' 10" West, a distance of 940.71 feet to the Point of Beginning of the parcel being described; thence leaving said right of way South 89°04'58" East, a distance of 464.06 feet; thence South 30° 17'34" East, a distance of 490.59 feet; thence South 35° 16'49" West, a distance of 267.08 feet; thence North 89009150" West, a distance of 558.60 feet to the Easterly line of U.S. Highway No. 93 right of way; thence along the Easterly line of said right of way North 00°07' 10" East, a distance of 640.91 feet to the Point of Beginning. Parcel 2 of Certificate of Survey No. 12230. Parcel 3 That portion of Government Lot 2 of Section 31, Township 29 North, Range 21 West, P.M.M., Flathead County, Montana, more particularly described as follows: Commencing at the Northwest corner of Section 31, Township 29 North, Range 21 West; thence along the North line of said section, South 89°49'30" East, a distance of 70.00 feet to the Easterly line of U.S. Highway No. 93 right of way; thence along the Easterly line of said right of way South 00*07'10" West, a distance of 1581.62 feet to the Point of Beginning, thence continuing along the Easterly line of said right of way South 00°07' 10" West, a distance of 375.02 feet; thence leaving said right of way South 89°58'50" East, a distance of 559.91 feet; thence North 00°05'30" West, a distance of 367.06 feet; thence North 89°09'50" West, a distance 558.60 feet to the Point of Beginning. Parcel 3 of Certificate of Survey No. 12230. Excepting therefrom public roads and rights of way. THE END 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 1st 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 ins 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 Faster 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 (1101). (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 . " `.r:>:uos:>:::c:>:::::h: :sAxreemef>::>::h DOMESITE PUD AGREEMENT -4- 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 DCMESITE to the building 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 that title will remain in fee simple with PACK until such time as a suitable developer has been procured to commence and complete construction of the coliseum complex. Ownership of the underlying real property in Area C will be subject to contract between the current fee owner and the future coliseum complex developer. 2.04 Relationship to Zoning Ordinance 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 DOMESITE PUD AGREEMENT - 5- 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. 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. " (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 DOMESITE PUD AGREEMENT - 6- 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. 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 referredtoabove, 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. DOMESITE PUD AGREEMENT -7- (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. (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-98-7, dated August 4, 1998, as amended August 11, 19981 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 (5') wide bicycle path on each side. DOMESITE PUD AGREEMENT -8- (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. (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. DOMESITE PUD AGREEMENT - 9- (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 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 beconstruedas 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 DOMESITE PUD AGREEMENT - 1 0- 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 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 DOMESITE PUD AGREEMENT -11- 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 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. DOMESITE PUD AGREEMENT - 12- (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 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 DOMESITE PUD AGREEMENT -13- 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 Emiss_on Control Plan and CITY Standards for Design and Construction. (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 be t::>::>t::::>::xe:::>>re atii3 acceptable to the Fire Chief. (B) DOMESITE and PACK agree to install a hydrants and water mains in accordance with City o-f Kalispell Standards and to obtain approval thereof prior to construction from the City of Kalispell Fire Chief. DOMESITE PUD AGREEMENT -14- 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 (61) tall shall be minimized. (1) In the area of the coliseum/convention center loading dock, retaining walls higher than six feet (6').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 DOMESITE PUD AGREEMENT - 1 5- #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 a height of thirty-five feet (351) and shall not exceed thirty-five feet (351) in width. Reader board signs in these locations with a surface area of ten feet (101) 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. DOMESITE PUD AGREEMENT -1 6- (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 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 DOMESITE PUD AGREEMENT -1 7- 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. (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. DOMESITE PUD AGREEMENT - 18- (B) 'she 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. 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. DOMESITE PUD AGREEMENT -1 9- 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. Its: CITY OF KALISPELL Its: day of , 1999. PACK and COMPANY By: Its: Attest: By: Its: DOMESITE PUD AGREEMENT -2 0- 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 -21- State of Montana r , 1 � INC, • LOT 4 N M w 44 r V a ■ ' cSt RCS Rcscrvc Dr - - ' - -- x .. i. - = - f • - - - ::;_ i - j I - i - _ j 1 - 7 4+ i a AG-8 0. • -- - - _ fj i IN I j NTI +! I i 61hiect Propert M I O� i tPIN LQT 3 10 STATE OF N A MONTANA a a w P- LO? 4 i VICINITY MAP Exhibit A JACKOLA ENGINEERING FOR PACK & COMPANY AND VALLEYDOME L.L.C. REQUEST FOR ANNEXATION INTO CITY OF KALISPELL, AND INITIAL ZONING OF B-2, GENERAL BUSINESS, WITH A PLANNED UNIT DEVELOPMENT (PUD) OVERLAY FILE # KA — 9 8 — 4 PLOT DATE: 07/22/98 SCALE I" = 800' H:\9i3\aice\KA98_4.dwg SEWER MAN P13 TY STANDARDS -s- G.. G\07MU� 00"TC FJE l&K TRAPPIG LIVT ! 1- XT 1[a!1 gOfT WE—.�_....._._..__�— M i1 12' WRAiiA MAN ; TYPE 1 STRZFE7 PER aTY 5 SIDEWALK DEVELOPMENT SIDE ONLY SiANOAR!>a l 2' CURB & GUTTER BOTH SIDES s, WATER MAN - SIDES 6BIKE PATH BOTH SIDES P" CITY 11' DRIVING LANES (5 TOTAL) STANDARDS 4' THICK ASPHALT SURFACE 3' CRUSHED GRAVEL. BASE - - SELECT SUBIBS I ALL WORK PER CITY OF KAUSPQl AIEA CCOLLECTO TION STANDARDS FOR STRE TYPE 2 STREET 5' SIDEWALK ON NORTH VEST SIDE r CURB & GUTTER BOTH SIDES 11' DRIVING LANES (3 TOTAL) 4' THICK ASPHALT SURFACE Y CRUSHED GRAVEL BASE 12' SELECT SUB -BASE ALL WORK PER CITY OF KALISPELL CONSTRUCTION STANDARDS FOR LOCAL STf�ET. ALL SEVER, WATER MR; STORM DRAINAGE SHALL BE PER MONTANA PUBLIC WORKS STANDARD SPECIFICATION STANDARDS AND CITY OF KALISPELL STANDARDS CURRENT EDITIONS. THE SEVER AND WATER MAIN EXTENSIONS ARE ANTICIPATED TO EXTEND FROM CITY OF KALISPELL WATER MAIN AND LIFT STATION AT GRANDVIEW ALONG THE EAST SIDE OF U.S 93 RIGHT OF WAY TO WITHIN THE SOUTH BOUNDARY OF THE DEVELOPMENT. IT IS ANTICIPATED THAT THE ENTIRE DEVELOPMENT MILL COLLECT SEWAGE TO A LIFT PUMPING STATION U71UZING SCHEDULED PUMPING TO THE CITY AT A MINIMUM OF 200 GPM. S WATER MAN PER 4TTT STANDARDS i LOT 8 AREA K -3r 910E PATH 1�! PUTT) E CITY FIRE HALL R1R; Y AREA A LOT I LOLOT 3 T I LDT 4 METALMETALE� r MEMEM MAN r VIATut M AD ��s S A c= PRI ROAD k {111L1iY?EJ11A]E?iT Lion 9 } LOT to LOT 11 { PRIVATE ROAD i U METAL S AREA 0 -1r WATER MAN PER CITY IFT STATION STANDARDS 1 LOT 12 RETAC 11111111111114 wig pit NNr r ®11 IIIIIIIIIiIIIIIIIIIfIIIIIIiI 3 Mil it I1111IIIIIIRII1111111111III111IU mu a LOTI' 16 Eifrlf}IFi2 'DOME' 90' DIA, .a:1 ,OUSEUM ' " ` 8500 SEATS ENTRY� II I I I I I I I I I u fIIIIIIIIIIRTT� nlllllllllllllillllllllJll Ra U I IW PROPOSED MOTEL LOT 14 AREA 8 r WMTER MAN PEA CITY STANDARDS E03T1M0 o-stoAE Put CITY II ETANOAIDs LOT 13 METAL LOT 877�f>� r WATER MAN PER CITY STANDARDS 14' PER YARD PEIt CITY STANDARDS LOT 1 2.15 ACRES LOT 2 0.76 ACRES LOT 3 0.80 ACRES LOT 4 242 ACRES LOT 5 0.92 ACRES LOT 6 1.09 ACRES LOT 7 1.50 ACRES LOT 8 4.23 ACRES LOT 9 2.01 ACRES ' , LOT 10 2.03 ACRES LOT 11 Z15 ACRES 12 4.81 ACRES ST 13 &47 ACRES L0 14 5,61 ACRES LOT t6 22-i9 A= APPROXIMATE TOTAL: 59.14 AC PHASE I - V EU�SPACES HANDICAP: 18 SPACES BUS: 12 SPACES PHASE I - COMME RCIAL �,► TO BE DEVELOPED As, TENANTS/OWNERS ARE ti ESTABLISHED COMMERCIAL PARKIN(; ESTIMATED: 1365 SPACES PHASE V - AUDITORIUM PART OF VALLEYDOME COI OVERLAPPING MAJOR ACTIVITIES ANTICIPATED. TRAPPIC LIGHT .TO END N •,'044ea . vrb � �_-- ii7 73( AVEIKIE EAST FA WX 1134 KAUZ41L. MT. SIM PHOND 406_7SS-32M E+X/HIBIT B P,�RELIMIN/�R Y RAWN: FLEE NECKED: TAJ - ATE: -- - N14m CALE T ■ 2W - ntis y NNW gfla� SHEET OF M o ,--DM@�tU u C GDFL-Zi M -�-�- 317 tiT AYEXIJE EAiT �-- aWo� � zZ G W W a W 3 > = r Q 0 1 E*XI I B'I T C PREj IMIN�1RY DRAWN: _. ROE ---- CHECKED: TAJ DATE:_ 8IL4m SCALP of MAKU w OWANM tee+ SHEET OF