Tab 22. Hutton Ranch PUD ApplicationTri-City Planning Office
17 Second St East, Suite 211
Kalispell, MT 59901
Phone: (406) 751-1850 Fax: (406) 751-1858
CITY OF KALISPELL
APPLICATION FOR PLANNED UNIT DEVELOPMENT (PUD)
PROJECT NAME: Hutton Ranch Plaza
1. NAME OF APPLICANT: Hutton Ranch Plaza Associates LLC
2. MAIL ADDRESS: 4 Sunset Plaza Suite 201
3. CITY/STATE/ZIP: Kalispell, Montana 59901 PHONE: (925) 884-4800
NAME AND ADDRESS OF OWNERS IF DIFFERENT THAN APPLICANT:
4. NAME: Philip Harris III and Donna L. Harris
S. MAIL ADDRESS: 360 Tetrault Road
6. CITY/STATE/ZIP: Kalispell, MT 59901 PHONE: (406) 755-6024
7. NAME: Flathead Valley Community College, Contact: Jane Karas
8. MAIL ADDRESS: 777 Grandview Drive
9. CITY/STATE/ZIP: Kalispell, MT 59901 PHONE: (406) 756-3822
10. TECHNICAL ASSISTANCE: Morrison Maierle Inc.
11. MAIL ADDRESS: 1228 Whitefish Stage Road
12. CITY/STATE/ZIP: Kalispell, MT 59901 PHONE: (406) 752-2216
If there are others who should be notified during the review process, please list those.
See attached contact list
Check One:
X Initial PUD proposal
Amendment to an existing PUD
A. Property Address: 2315 Highway 93 North, Kalispell, Montana 59901
B. Total Area of Property: 46.05 Acres
C. Legal description including section, township & range: Tract 1 COS 16333 in
the SW 1/4 of the NW 1/4, Section 31 and a portion of Parcel A COS 14935 in the
NW 1/4 of the SW 1/4 Section 31 all in Township 29 North, Range 21 West, PMM.
D. The present zoning of the above property is: SAG-10, Flathead County
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E. Please provide the following information in a narrative format with supporting
drawings or other format as needed: See attached narrative.
a. An overall description of the goals and objectives for the development of
the project.
b. In cases where the development will be executed in increments, a
schedule showing the time within phase will be completed.
C. The extent to which the plan departs from zoning and subdivision
regulations including but not limited to density, setbacks and use, and
the reasons why such departures are or are not deemed to be in the
public interest;
d. The nature and extent of the common open space in the project and the
provisions for maintenance and conservation of the.common open space;
and the adequacy of the amount and function of the open space in terms
of the land use, densities and dwelling types proposed in the plan;
C. The manner in which services willbe provided such as water, sewer,
storm water management, schools, roads, traffic management,
pedestrian access, recreational facilities and other applicable services
and utilities.
f. The relationship, beneficial or adverse, of the planned development
project upon the neighborhood in which it is proposed to be established
g. How the plan provides reasonable consideration to the character of the
neighborhood and the peculiar suitability of the property for the
proposed use.
h. Where there are more intensive uses or incompatible uses planned
within the project or on the project boundaries, how with the impacts of
those uses be mitigated.
i. How the development plan will further the goals, policies and objectives
of the Kalispell Growth Policy.
j. Include site plans, drawings and schematics with supporting narratives
where needed that includes the following information:
(1). Total acreage and present zoning classifications;
(2). Zoning classification of all adjoining properties;
(3). Density in dwelling units per gross acre;
(4). Location, size height and number of stories for buildings
and uses proposed for buildings;
(5). Layout and dimensions of streets, parking areas,
pedestrian walkways and surfacing;
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(6). Vehicle, emergency and pedestrian access, traffic
circulation and control;
(7). Location, size, height, color and materials of signs;
(8). Location and height of fencing and/or screening;
(9). Location and type of landscaping;
(10). Location and type of open space and common areas;
(11). Proposed maintenance of common areas and open space;
(12). Property boundary locations and setback lines
(13). Special design standards, materials and / or colors;
(14). Proposed schedule of completions and phasing of the
development, if applicable;
(15) . Covenants, conditions and restrictions;
(16) . Any other information that may be deemed relevant and
appropriate to allow for adequate review.
If the PUD involves the division of land for, the ,purpose of conveyance, a preliminary
plat shall be prepared in accordance with the requirements of the subdivision
regulations. -
Please note that the approved final plan, together with the conditions and restrictions
imposed, shall constitute the zoning for the ,district. No building permit shall be
issued for any structure within the district unless such structure conforms to the
provisions of the approved plan.
The signing of this application signifies that the aforementioned information is true
and correct and grants approval for Tri-City Planning staff to be present on the
property for routine monitoring and inspection during review process.
HUTTON RANCH PLAZA ASSOCIATES, LLC, BY
PHILIP HARRIS 8s ASSOCIATES, INC., MANAGER BY
PHILIP HARRIS III, PRESIDENT
31a3jr'!�
(Date)
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APPLICATION PROCESS
APPLICABLE TO ALL ZONING APPLICATIONS:
A. Pre -Application Meeting:
A discussion with the planning director or designated member of staff must
precede filing of this application. Among topics to be discussed are: Master
Plan or Growth Policy compatibility with the application, compatibility of
proposed zone change with surrounding zoning classifications, and the
application procedure.
B. Completed application form.
C. Application fee per schedule, made payable to the Tri-City Planning Office.
PUD Zoning Review Fee
Residential $700.00 + $25/acre
Commercial $800.00 + $25/acre
Mixed Use $850.00 + $25/acre
* Deduct $200 from PUD fee if application is concurrently submitted with a
preliminary plat.
D. A bona fide legal description of the subject property and a map showing the
location and boundaries of the property.
E. A list of the names and mailing addresses of all property owners within 150
.feet of the subject property as shown on the Assessor's roll. Public streets and
right of ways are not included in the 150 feet. See example below and attached
notice from County Plat Room.
Assessor No Sec-Twn-Rn Lot/Tract No Property Owner & Mailing Address
Please consult the with staff of the Tri-City Planning Office for submittal dates and
dates for the planning board meeting at which it will be heard in order that
requirements of state statutes and the zoning regulations may be fulfilled. The
application must be accepted as complete forty-five (45) days prior to the scheduled
planning board meeting.
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Contact List
Bill Buxton, P.E.
Morrison-Maierle, Inc.
1228 Whitefish Stage Road
Kalispell, MT 59901
Phone: 406-752-2216
e-mail: bbuxton@rn m.net
Bill Hall
Crossroads Commercial Properties, Inc
17 East Oregon
Kalispell, MT 59901
Phone: 406-250-5576
bill ., cross r adscom roo.corn
Bruce Lutz, A.S.L.A.
Sitescape Associates
PO Box 1417
Columbia Falls, MT 59912
Phone: 406-892-3492
sites,-ape�`g centu^je..net
Keith Belden, P.E.
Morrison-Maierle, Inc.
306 W. Railroad Street, Suite 105
Missoula, MT 59802
Phone: 406-542-8880
e-mail: kbelden n.m-m.net
Doug Wiele
Foothill Partners, Inc.
5176 Hillsdale Circle, Suite 100,
El Dorado Hills CA 95762
Phone: 916-939-9890
dyxrieIe n foothill •artnerc,corn
Dan Uesugi, AIA
Uesugi & Associates
870 Market Street, Suite 505
San Francisco, CA 94102
Phone: 415-781-4141
e-mail: dan.gesugi -thlink.net
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HUTTON RANCH PLAZA PUD APPLICATION
SECTION E NARRATIVE
A. An overall description of the goals and objectives for .the -
development of the project:
Overall Goal of Hutton Ranch Plaza: The overall goal and objective of Hutton
Ranch Plaza is to create a community of buildings that create a homogeneous
and cohesive town center. The design guidelines promote commonality of forms
and materials that simultaneously allow for creativity and uniqueness. Each
design will be carefully planned and reviewed for adherence to design guidelines
to maintain overall quality and character.
B. in cases where the development will be executed in increments, a
schedule showing the time when each phase will be completed:
Potential Phasing -of the Development: The Hutton Ranch Plaza Planned Unit
Development is proposed to be completed in two phases. Phase 1 consists of
the area north of Hutton. Ranch Road and Phase 2 consists of the land south of
Hutton Ranch Road. The exact timing of when each phase will be completed is
not exactly known at this time and will be driven by interested tenants and when
they would want to start construction. It is anticipated, however, that design and
construction of required Phase 1 improvements would begin immediately upon
approval of the PUD and Preliminary Plat with tenant building construction
beginning in the early spring of 2006. Phase 2 improvements may be
constructed concurrent with Phase 1 or may be delayed until tenants are found
for this half of the development. With underground stormwater detention provided
for the entire site and located in Phase 2, a temporary detention pond may need
to be constructed for Phase 1 until Phase 2 is built out.
C. The extent at which the plan departs from zoning and subdivision
regulations including, but not limited to, density, setbacks and use, and the
reasons why such departures are or are not deemed to be in the public
interest.
Departures from Zoning and Subdivision Regulations: The reason for
creating this PUD is mainly to achieve the architectural theme desired by Hutton
Ranch Plaza Associates. Building heights and types may vary from the
standards set forth by the City of Kalispell. However, other standards, such as
building setbacks, drive aisle widths, and public works design standards will be in
compliance with City of Kalispell standards. At the time of submittal, the new City
Lighting Standards and Architectural Standards will not be approved and
enacted. However, Hutton Ranch Plaza Associates is aware of these new
standards and will design this project with these standards in mind.
According to the City of Kalispell Growth Plan, the northern half of this property is
slated for a neighborhood commercial type of land use. The south half of the
development is labeled as public land since it is owned by Flathead Valley
Community College. Hutton Ranch Plaza Associates is in the process of
acquiring this land from the college. The proposed land uses are the -same -
classification in the north half as the south half. The plan for Hutton Ranch Plaza
is similar to the other commercial developments in the area, which are Spring
Prairie Center across the -highway and Mountain View Plaza north of the
property.
D. The nature and extent of common open space in the project and the
provisions for maintenance and conservation of the common open space;
and the adequacy of the amount and function of the open space in terms of
the land use, densities, and dwelling types proposed in the plan:
Common Open Space: Open space on the project is composed of landscaping
on the site around the perimeter and in'the US Highway 93 right-of-way. Also,
the center of the development will consist of office space, shops and restaurants
that will be amenable to pedestrians or shoppers resting on park benches or
having a meal on an outside patio typesetting. Common space as defined on
the preliminary plat consists mainly of the parking areas in the north and south
sections of Hutton Ranch. The common space will be constructed, managed and
maintained by Hutton Ranch Associates, LLC. See Appendix A, Covenants,
Conditions and Restrictions, for clarification.
E. The manner in which services, such as water, sewer, storm water
management, schools, roads, traffic management, pedestrian access,
recreational facilities, and other applicable services and utilities are
provided:
Services Provided to the Development: The following paragraphs summarize
the manner in which services will be provided to Hutton Ranch Plaza.
• Water and Sewer Utilities: Water and sewer service will be provided from
existing water and sewer mains located on the western boundary of the
project site. It is anticipated that the entire development will be able to be
serviced by gravity sewer mains that will connect into the existing system.
It is also anticipated that the existing water system will be adequate for.
providing sufficient water to meet both commercial and fire protection
demands based on the modeled performance of the system at Spring
Prairie Center.
• Stormwater Management: The additional stormwater runoff generated as
a result of this development compared to the amount of stormwater runoff
prior to the development will be stored on -site and released at the pre -
development rate. At the time of this submittal several options are being
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considered, however, it is likely the stormwater will be routed through an
underground detention system located under the parking lot on the south
half of the development and released at the pre -development rate into an
existing swale south of the property. Since the underground detention
pond .is located in Phase 2, a temporary above -ground detention .pond
may be constructed to serve Phase 1 until Phase 2 is completely built out.
• 'Schools: Since this development has no residential components, it will not
adversely affect the area schools since no students are being generated.
In fact, it is anticipated that the development will have a positive impact on
area schools as a result of the taxes generated from the project.
• Roads: A new dedicated City Street will be constructed from Highway 93
to the east boundary of the site, and will align with the new road just south
of the future Costco on the west side of US Highway 93. A new stoplight
is proposed -to be constructed in conjunction with the C-ostco project at this
intersection.
Traffic. Management: Complete after traffic study. Traffic study will go in
Appendix A -- -
Pedestrian Access: An existing bike/pedestrian path following Highway 93
along the west boundary of the development will be the point of access
into the site. Sidewalks installed along the new city street will carry
pedestrian traffic west -east through the development. From the middle of
the development, pedestrian traffic can access either the northern or
southern half of the development along sidewalks constructed adjacent to
the interior road.
• Recreational Facilities: One of the main attractions for this development is
the construction of a new 14 screen movie theatre.. The proposed retail
shopping areas will make this an attractive place for all types of area
residents.
F. The relationship, beneficial or adverse, of the planned development
project upon the neighborhood in which it is proposed to be established. -
Relationship with the Surrounding Neighborhoods: This development will be
compatible with the surrounding areas. The property is located in an area that
has seen significant commercial development growth in the past five years. With
the addition of this shopping center, all other surrounding commercial
establishments will benefit from the additional population of people coming to the
area. This will not only help the tenants of Hutton Ranch Plaza, but also those in
Mountain View Plaza and Spring Prairie Center.
G. How the plan provides reasonable consideration to the character of
the neighborhood and the peculiar suitability of the property for the
proposed use:
Character of the Development to the Existing Neighborhood: Hutton Ranch -
Plaza is bounded to the south by Flathead Community College and the north by
Mountain View Plaza. The other surrounding commercial developments, which
entail Lowe's, Home Depot, -Target, and Costco will make this an ideal location
for the theatre and other retail shopping stores. The property itself is well -suited
for this type of development since there can be adequate access from the
highway, the adjacent utilities have the capacity to serve the area, and the layout
of the proposed buildings will provide good visibility for the shops and good
vehicle and pedestrian circulation.
H. Where there are more intensive uses or incompatible uses planned
within the project or on the project boundaries, how the impacts of those
,uses. be mitigated:
Impacts of Intensive Land Use: The property is compatible with development
to the west and north. The Flathead Valley Community College (FVCC) lies
south of the project and is buffered by building setbacks within the PUD and
approximately 500 feet of undeveloped property owned by the college. The uses
are not necessarily incompatible with FVCC benefiting from the nearby
commercial activity. Property to the east is again buffered by larger setbacks
and landscaping. This property is not currently being developed, but could be
developed as transitioning residential site. It is important to note that with the
conclusion of this project FVCC will own the property to the east of the
development.
I. How the development plan will further the goals, policies and
objectives of the Kalispell Growth Policy:
Compliance with Kalispell Growth Policy: The Kalispell Growth Policy is
divided into several sections, which are Growth Management, Land Use,
Economy, Natural Environment, Urban Design, Historic and Cultural
Conservation, Parks and Recreation, Transportation, Infrastructure and Public
Services, and Neighborhood Plans.
Hutton Ranch satisfies the growth policy concerns as described below.
Growth Management: The Hutton Ranch property will be annexed into the City
of Kalispell and will connect to the City water and sewer services. Public water
and sewer service will be extended through the Hutton Ranch Plaza from the
existing mains on the west property line to the east property line to serve
potential future development east of Hutton Ranch. The proposed street will be
constructed to handle traffic for both the Hutton Ranch Plaza and other future
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developments east of the property. These and other improvements will
encourage the orderly development of properties to the east.
Land Use: Hutton Ranch Plaza addresses land use concerns as follows:
• Hutton Ranch will host a variety of businesses, ranging from individual
office space to major retail stores to the 14-screen movie theatre. The site
layout will blend the- attraction of large retail stores into access with
smaller businesses, which will provide more customers access to the
smaller businesses. -
• Public water and sewer service is accessible and will be installed to serve
both Hutton Ranch and any future development east of the site.
• All buildings will be designed and constructed to be architecturally
compatible with other Hutton Ranch Plaza buildings as well as buildings in
the surrounding area: -
Natural Environment: Hutton Ranch is not being constructed within or near any
environmentally sensitive area. No wetlands or riparian areas will be affected by
construction. The property is not located within the 100-year floodplain. Storm
water runoff will be routed through an underground detention system, which will
be designed to meet the Montana Department of Environmental Quality
standards for quality and quantity. All roads and drivable surfaces in the project
will be paved, and dust will be kept to a minimum during construction to preserve
air quality.
Historic and Cultural Conservation: Since Hutton Ranch Plaza is located
north of downtown Kalispell, it will help to preserve the traditional townscape of
downtown main street and residential neighborhoods.
Infrastructure and Public Services: All new roads and parking areas within
Hutton Ranch Plaza will be paved. All buildings will be connected to public
sewer, and the sewer will be extended through the project to serve any future
development east of Hutton Ranch Plaza. All new water mains will be looped to
provide adequate fire flow, and will be sized to not only serve Hutton Ranch, but
also other future development. Stormwater will be detained in an underground
detention system, and released into its primary channel at the pre -development
flow rate. The detention system will be sized to detain the stormwater in
compliance with the City of Kalispell standards.
J. Include site plans, drawings and schematics with supporting
narratives where needed that includes the following information:
(1). Total acreage and present zoning classifications.
The total acreage of the proposed development is 45.98 acres and the property
currently resides in the County. The current county zoning is suburban
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agricultural (SAG-10) The total acreage and present zoning classification is
shown on the 11x17 vicinity map in Appendix B of this PUD Application and on
the 30x42 vicinity map also included as a supplement to this application.
(2). Zoning classification of all adjoining properties.
The property to the north consists of the Mountain View Plaza Subdivision which
is currently zoned B-2/PUD.• The property to the east and directly south of the
proposed subdivision is in the county and is zoned suburban agricultural (SAG-
10) The nearest. parcel to the south of the Hutton Ranch Plaza that is within the
City of Kalispell is the Flathead Valley Community College which is zoned R-1.
Directly west of the north half of the Hutton Ranch Plaza across U.S. Highway 93
is the Spring Prairie Center, which is zoned B-5/PUD. Directly south of the
Spring Prairie Center and west of the south half of the Hutton Ranch Plaza is
Kids Sports, which is zoned P-1. The zoning classification of all of the adjoining
properties is also shown on the 11x17 vicinity map in Appendix B of this_PUD
Application and on the 30x42 vicinity map also included as a supplement to this
application.
(3). Density in dwelling units per gross acre.
The proposed subdivision is a commercial development and no dwelling units are
proposed.
(4). Location, size, height and number of stories for buildings and
uses proposed for buildings.
Building sizes range from 4500 square feet in the outlet pads to over 129,000
square feet for the major retail stores. The larger buildings will be located on the
north, east, and south boundaries of the site. The smaller building pads will be
located along the west boundary and along the proposed street. Most of the
buildings are planned to be single story, with the exception of the two-story office
building and the motel, which is planned to be four stories.
The major buildings are of a scale proportional to its area at a height 28'-0", while
maintaining pedestrian elements that create a pleasant human scaled
environment. The roof lines shall be varied, with forms accentuating the main
entrance and the corners of the buildings up to 42'-0". The building mass will be
de-emphasized by articulating vertical planes, creating shadow lines and
variation of materials. There are varied treatments at the cornice, wainscot,
canopies, and storefront areas. Display and merchandising areas are
encouraged.
The smaller stores and retail shops have even more flexibility and variation in
their overall massing with wall heights up to 21'-0" and entry ways ranging up to
33'-0". There will also be one two-story_ building with roof heights to 35'-0".
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Varying roof lines, undulating vertical planes, unique entrances, and large
storefront areas will be encouraged. Rich in variety, the shops will have
architectural detailing enhancing the pedestrian environment.
The Theatre building will incorporate similar features of the major building and -
shops. The theatre will have a grand entrance, with a 50-foot high vertical
element alluding to the iconic tower form associated with movie theatres. The
generous entry canopy will provide shelter and emphasize the building type. The
ticket booth will be highlighted. Pedestrian scaled wainscot and varying exterior
wall treatments will breakdown the building mass. Recessed self -illuminated
poster cases will also punctuate the wall and enhance the pedestrian experience,
as well as accent LED lighting.
The design guidelines for the Hutton Ranch Plaza will similarly, control the Hotel
building design, featuring a grand entry statement, vertical plane variation,
cornice and wainscot treatments. It is anticipated the Hotel will be a three=story
structure with a pitched roof, -with a total height of approximately 60 feet. .
Elevation drawings showing the building heights are included on a 30x42 drawing
-that is a supplement to this application.
(5). Layout and dimensions of streets, parking areas, pedestrian
walkways and surfacing.
The proposed street will be designed and constructed as a collector street per
the City of Kalispell standards. The right of way will be approximately 60 feet.
The street will begin at Highway 93, and will be in line with the proposed South
Road south of the new Costco in Spring Prairie Center. The proposed street will
extend to a dead end at the eastern property line, and will be constructed to allow
for further expansion to the east when development occurs east of Hutton Ranch
Plaza.
All parking lot areas in Hutton Ranch Plaza will be constructed in accordance
with the City of Kalispell standards. The standard dimensions of the 90' parking
spaces are 9 feet wide by 20 feet long. The angled parking proposed in the
center of the development is a 60' angled parking space with a 20-foot depth,
also 9 feet wide. There are no compact parking spaces proposed in Hutton
Ranch. Drive aisles between the parking stalls are to be 24-feet wide, unless the
drive aisle is also a truck route. Truck routes are to be 30-feet wide, and are
typically located along the front and back of the buildings and at the entrances off
of the proposed street.
Pedestrian walkways will be placed along both sides of the proposed street
running from the west to the east property lines. Typically, the sidewalks will be
installed per the City of Kalispell standards, which require a minimum width of
five feet. However, in the center area, the sidewalks will become much wider into
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a courtyard type of area, approximately 32 feet wide. From the center of the
development, sidewalks extend to the north and south to access the major retail
complexes. Where the sidewalks cross streets or parking areas, handicap
accessible ramps will be installed per ADA requirements. Pedestrian walkways
will also be constructed along the front of all major and semi -major retail.
buildings, the movie theatre, the office building, and the smaller shops. All other
pads will have sidewalk placed to accommodate pedestrian traffic and meet ADA
requirements.
All parking lot and driving surfaces will be paved with asphalt paving. All
sidewalks will be concrete, with the exception of the bike path, which is asphalt.
Landscape areas will be surfaced in accordance with the landscaping plan.
A site plan illustrating the features described above has been submitted as a
supplement to this application.
(6). .Vehicle, :emergency and pedestrian access, traffic circulation
and control. -
Vehicular access to Hutton Ranch Plaza will be. from Highway 93 North. The
main entrance to the site will be from a full movement intersection in the middle
of the property. Additionally, the north and south areas of the site each will be
accessible by right-in/right-out intersections accessing the northbound traffic
lanes of the highway. An additional entrance to the south side of the property will
be from an access road connected to the north entrance of the Flathead Valley
Community College, which will allow,traffic to enter or exit the site southbound on
Highway 93. Southbound traffic from the highway will access the site through the
intersection of the highway with the proposed street. This intersection will be full
movement with a stoplight. The proposed street will divide the property into the
north and south areas. Both the north and south sections of Hutton Ranch Plaza
will have three entrances off the proposed street. An additional entrance to the
south section for truck traffic and emergency vehicles is located at the eastern
boundary of the site. For clarification, see the Traffic Impact Study in Appendix
B.
Pedestrian traffic will be able to access any building within the site from any
parking space, as well as from the existing pedestrian/bike path along the east
side of Highway 93. Sidewalks will be placed along both sides of the proposed
street, providing access to both the north and south sections of the site.
Sidewalks will also be installed along the entrances to the north and south
sections from the proposed street, which will allow pedestrians access to cross
from the north to the south, providing access to the front of all major and semi -
major retail buildings, as well as the office space and shops along the proposed
street.
M.
Emergency access to the site can be from any of the four entrances. The new
Kalispell North Fire- Station will be constructed only '/ mile west of the
intersection of the proposed street and Highway 93. Fire trucks from this station
will be able to enter the site from the proposed street and access any building
within the site. Ambulances and other emergency vehicles will also be able--to--
access the site at any entrance.
Traffic entering the site will be able to access either the north or south sections,
regardless of which entrance off the highway they enter. Driving lanes are
provided along both the front and rear of the ;major and semi -major retail, the
theatre, motel, and other shops. Vehicles will be able to cross the proposed
street at three different crossings: one at the west end, the middle, and the east
end of the site.
(7). 'Location, size, height, color and materials of signs.
The objectives of the sign package are to encourage signage that provides for
unique identity for the center and its tenants while maintaining consistent design
criteria integral to the architecture and image.1 Criteria for signage have been
developed with an eye to establishing certain uniform requirements necessary for
a coherent whole, while allowing opportunity for individual design configurations,
which add interest and liveliness. The complete sign package is included in
Appendix C. Supplemental drawings have also been submitted as part of this
PUD application.
The landlord, landlord's architect, signage consultant and the City of Kalispell will
all play roles in defining the regulatory as well as final aesthetic content of the
Sign Program. An example of the type of sign aesthetics such as color and
materials is included in Appendix C.
The following narrative describes the proposed sign types for Hutton Ranch
Plaza.
Freestanding Signs:. Freestanding signs will have the following characteristics:
1. Pylon Signs. Two (2) pylon signs with a total height of 28 feet are
proposed identifying the center with five tenant identities on each sign.
Tenant identity on pylon signs will be subject to approval of landlord and
availability. The pylon signs will be located along Highway 93 on the
south and north end of the development.
2. Monument Directional Signs. Four monument signs located in the center
of the development providing directions to anchor and major tenants are
proposed. The total approximate height of these signs will be 5 feet 4
inches.
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3. Secondary Directional Signs. Secondary directional signs directing traffic
flow (i.e. deliveries) are also proposed. These signs will be of post and
panel design and will be approximately 32 inches in height.
The site plan submitted as part of the sign package shows the exact location._
of the pylon, monument directional, and secondary directional signs.
Wall Mounted Signs: -Wall mounted signs will have the following
characteristics.
1. Anchor Tenant Signs. Wall mounted signs for anchor tenants who occupy
no less than 40,000 square feet will be located on the fagade over the
entry area and on the side and rear walls, subject to the Owner's approval.
The signs will have a total area of 1.5 square feet per lineal foot of
frontage and will have letters with a maximum recommended height of 6
feet. The signs will also be composed of individual illuminated letters and
logo forms.
2. Major Tenant Signs. Wall mounted signs for major tenants who occupy
from 10,000 to 39,999 square feet will also be located on the fagade over
the entry area and on the side and rear walls, subject to the Owner's
approval. The signs will have a total area of 1.5 square feet per lineal foot
of frontage and will have letters with a maximum recommended height of 4
feet. The signs will also be composed of individual illuminated letters and
logo forms.
3. In -Line Tenant Signs. Wall mounted signs for in -line tenants who occupy
less than 10,000 square feet will also be located on the fagade over the
entry area and on the end walls, subject to the Owner's approval. The
signs will have a total area of 1.5 square feet per lineal foot of frontage
and will have letters with a maximum recommended height of 2 feet. The
signs will also be composed of individual illuminated letters and logo
forms.
4. Cinema Signs. Wall -mounted signs will be composed of individual
illuminated letters and logo forms (may be mounted on raceway, subject to
Owner approval). Wall -mounted secondary signs, such as poster cases,
tickets, or ATM will have decorative neon and/or LED lighting added to
embellish theatre facades and architectural details.
5. Pad Building Signs. Wall mounted signs for pad tenants will also be
located on the fagade over the entry area and on the side and rear walls,
subject to the Owner's approval. The signs will have a total area of 1.5
square feet per lineal foot of frontage and will have letters with a maximum
recommended height of 28-inches. The signs will also be composed of
10
individual illuminated letters and logo forms and will identify only the
freestanding pad building tenants
Under Canopy Signs: Under canopy signs will be non -illuminated double -face
signs with tenant name only, suspended over covered walkways.
Ancillary Tenant Signs: Ancillary tenant signs as described below assist in
providing information and shall conform to the general and specific requirements
enumerated in the sign package.
• Address numbers: Allowed on front and rear entries
• Storefront: Hours, emergency telephone umber, credit card decals
• Window signs: Suspended behind storefront window, i.e. "Open" signs,
etc.
• Temporary Signs:' Allowed for grand openings or change of ownership for
20 days only, with approval of landlord end the City of Kalispell.
Sign Types Prohibited: The following list' describes the signs that will be
prohibited.
1. Signs with flashing or moving lights.
2. Signs with animated or audible components.
-3. Signs constituting any kind of traffic hazard (words, symbols, colors and
forms associated with or interfering with traffic.)
4. Signs with exposed junction boxes, transformers, or electrical apparatus.
5. Unlawful or immoral advertising.
6. Exposed sign manufacturer's names or decals, except as required by city
code.
7. Sign employing vacuum formed plastic letters.
8. Conventional acrylic or polycarbonate faced sign cabinets with applied text
and/or illuminated background.
9. Gold trim capped letters.
10. Letters with spray -painted faces:
(8). Location and height of fencing and/or screening.
No screening or fencing is proposed for this project.
(9). Location and type of landscaping.
Landscape Design Objectives: Landscape Design objectives address
landscaping the plaza environment at Hutton Ranch Plaza in order to:
• Enhance the aesthetics of the site;
• Create a pedestrian friendly environment;
• Provide compatibility between developments, projects or buildings;
11
Break up the mass of buildings;
• Provide screening of service areas or visual buffers between
buildings/uses;
• Enhance the parking and street side environment;
• Define street, parking and building entrances;
• Provide shade and climate control for buildings, parking and walkways.
Landscape Design Concepts: The colors of landscape materials proposed for
Hutton Ranch Plaza should be taken from sustainable and adaptable plant
materials for the Flathead Valley. The landscape palette of the Valley includes
colors that are dominated by yellows and 'grayish -greens of grasslands, beiges,
ochres and grays of exposed earth, browns and grays of stone formations,
reddish browns, tans, grays and whites of tree trunks and olive greens of pine
stands, and various yellows, pinks, whites, reds, blues and other foliage and
flower color variations found in both native and domesticated plants residing in
the Flathead Valley.
See Sheets LA1.0 for the landscape plan and Sheet LA 1.1 for typical planting
details and a suggested plant material list for the project.
Ornamental landscaping should be dominated by whites, yellows/golds and
blues/violets and reds. Flowers should be dominated by perennials and hardy
woody ornamental shrubs with extended bloom periods.
Right of Way Landscaping: Right of Way Landscaping at Hutton Ranch Plaza
should present an attractive and cohesive west perimeter. Visually compatible
landscape solutions should be used at all entrances and intersections. Plant.
materials, massing; spacing, height and characteristics should reinforce the
hierarchy of roadways. Planting, grading and drainage systems should work
together to form a variety of spaces or experiences that are attractive to
pedestrians and that call attention to the landscaped space. The perimeter
landscape elements and treatments should establish an high quality image and
level of finishing for Hutton Ranch Plaza. The use of perennial clusters of plants
will be emphasized at entrances to the project and within planter areas near
building entrances.
Fences along public right of ways will be prohibited.
Project identification signs should be placed away from entrances to avoid visual
competition at roadway turning movements and entrances.
Parkway and median plantings species should be varied to create interest in the
streetscape, attractively defining differing project types within the Hutton Ranch
Plaza development.
12
Landscape materials more than 30-inches in height in their mature state are
prohibited within sight distance triangles, whether at public or private streets.
Utility equipment and devices shall be located and screened in a manner so as to
not detract from the surrounding landscape and architecture. All utilities ---shall --be-
buried unless deemed impractical by the utility provider.
Provide a variety of scale and plant material types within landscaped areas to
provide interest, to accentuate entrances .and signage. Use plant materials that
are complimentary in color, scale and texture.
Perimeter Landscaping at Adjacent Properties: Landscaping should provide
compatibility between properties of similar uses, enhancing the pedestrian
connections. In addition, landscaping should provide visual buffers or screening
where appropriate, mitigating potential conflicts between dissimilar uses, and
especially less intensive uses.
Parking Lot Landscaping: Parking lots should be designed and landscaped to
enhance site and building character and pedestrian approaches, break-up large
areas of surface parking and provide landscaping to visually obscure vehicles
without compromising safe vehicular circulation.
Use landscape mounding and berming whenever possible to provide a grade
difference between parking areas and streets.
Provide a minimum of one shade tree in every landscaped island within surface
parking lots, and shrubs, beds or sod as appropriate.
Decorative paving surfaces may be utilized to accentuate pedestrian crossings.
Separate all landscaping from parking lot surfaces and drive aisles with raised
curbs and associated mounding.
Building Site and Foundation Landscaping — Individual Building Sites:
Landscaping shall be provided at the perimeter of buildings in a manner to
identify, enhance and soften building entrances, and to accentuate building
architecture.
Landscaping shall be provided at building perimeters in locations and with
irrigation in a manner that is acceptable in relation to the soil conditions of a site
and according to the geo-technical engineering recommendations for building
foundation design.
Employ landscaping that is of an appropriate scale for the adjacent structure.
Avoid using landscaping materials, which when mature, over reach their
environment, being too high or massive for the adjacent architecture.
13
Accentuate landscaping at building entrances. Protect landscaped beds by
providing raised curbs, beds or walls adjacent to pedestrian turning movements
and building entrances.
General Landscape Requirements: Compatible landscape treatments,
materials and design components shall be used at all areas within Hutton Ranch
Plaza to ensure consistency with the built environment.
Mulch types shall include only the following:
• fire-resistant and wind resistant wood products (ie. shredded cedar)
• 1" Diameter or smaller reddish/brown granular gravel mulch
The required minimum landscaped open area shall include a minimum of 75%
live material when mature. -The use of expansive gravel beds -is prohibited.
Bluegrass areas shall be planted by sod only; no seeding. Dry -land grass areas
shall be hydro -seeded or drilled and hydro -mulched.
Weed control fabric shall be placed under all mulch. Fabric shall be flexible, non-
woven polyester that allows water and air exchange to the soil. Plastic weed
barrier is not allowed under any, circumstances.
Landscape Irrigation and Water Conservation: Hutton Ranch Plaza is located
in a semi -humid climate zone and efforts should be designed to conserve water
as a natural resource by utilizing conservative maintenance practices. All
landscaping shall be appropriately irrigated, utilizing state-of-the-art automatic
irrigation systems, combinations of spray and drip systems, zoning and
scheduling to maintain efficiency and conserve water. Employ efficient drip
irrigation for shrub and perennial beds and more efficient rotary irrigation heads
for sod areas. Incorporate zoned planting and irrigation schemes that group
comparable varieties of plants which require similar irrigation, or which are
drought and disease resistant. Incorporate drought tolerant plant species suitable
to the climate that have minimal watering and pruning requirements.
Incorporate plant materials other than irrigated sod on steeper slopes, utilizing
large masses of boulder stone interspersed with evergreen and ornamental plant
materials.
Irrigation shall be designed to eliminate the possibility of spreading water on any
non -landscaped areas.
14
Plant Material Sizes: Plant material selections and sizes should be designed to
provide a reasonable compromise between immediate landscape impact and
coverage and the final mature landscape design.
Provide landscape materials according to the following minimum standards:.
• Deciduous shade or canopy trees: 2 11-2 %" caliper
• Ornamental trees: 2 1/4" caliper
• Evergreen trees: 6-8' height
• Multi -stemmed Ornamentals: 6'-8' height
• Shrubs: 5-7 gallon container
• Vines and grasses: 1-gallon container
• Ground cover or perennials: 21/" pots
Plant Material Selections: Materials should be selected from the suggested
plant material list as shown on Sheet LA1.1.
Landscape Standards: Landscape planting should be of high quality, reinforce
attractive site planning and compliment architectural forms in a manner that
results in a vital and healthy landscaped environment.
Landscaped areas should be divided into one or more of the following basic
zones:
High Maintenance Zones that generally located at site and building entrances,
and which normally include:
• Manicured lawns requiring weekly mowing and regular watering
• Formal plantings of trees and shrubs
• Planters and decorative/flower beds
`Medium Maintenance Zones that are generally located along streets and which
normally include:
• Drought tolerant shrubs and grasses that require less watering and
maintenance but which still provide a manicured green look:
• Large shrubs
• Large specimen trees
Low Maintenance Zones generally located in environmentally sensitive areas
such as along waterways or away from buildings, and which normally include:
• Natural areas and native grasses requiring very little water and
maintenance
• Drought resistant plant species
15
• Drainage areas
Plant materials should meet the following minimum requirements:
• Select plant material based on their suitability to climate and setting; -and
their compatibility with the character, functions, and landscape of the
development.
• Select plant materials that are free from disease and harmful insect
problems.
• The quality level of plant materials shall be in accordance with the
guidelines of the American Standard for Nursing Stock by the American
Association of Nurserymen.
• Proper drainage is required for all major plantings to ensure the
establishment of good root systems and healthy growth.
• The installation of all landscaping shall be performed by an experienced
landscape contractor conforming to the procedures- set forth by --the
American Association of Landscape Contractors and its local agencies.
All landscaping and landscape material shall be backed by a warranty
from the Landscape Contractor for a minimum of one year.
Performance standards with a guarantee ensuring the timely completion of
landscaping will be enforced.
• Artificial plants of any type are not permitted.
Choose landscape materials that provide variety and year-round color and
screening, selecting materials that highlight each season:
• Spring: Flowering Plants
• Summer: Shade
• Fall: Leaf color
• Winter: Branch form and texture
Concrete edging is required to separate sodded areas from planting beds. Metal
edging is required around trees that are installed within sodded areas
Landscape and Irrigation plans shall be prepared by a Landscape Architect
registered in the State of Montana.
Retaining Walls (If Required)
Retaining walls shall be designed to function in a variety of uses, both structurally
and non -structurally, creating visual consistency throughout the Hutton Ranch
Plaza to ensure a high quality and natural aesthetic continuity throughout the
park is achieved and maintained.
16
Retaining walls shall be constructed of materials that harmonize with the
surrounding areas, and shall be as approved on the list of acceptable materials
(attached). Railroad ties or other non -approved materials are not allowed.
Use of stepped, tiered or terraced retaining walls of smaller heights that ser_ve_to__
form planting beds or sign bases are encouraged. .
Landscape Lighting: Landscape lighting should be provided in a manner that
identifies and accentuates site and building entrances and pedestrian areas.
Entrances to individual developments shall incorporate some type of landscape
lighting treatment that highlights both vehicular and pedestrian entrances.
Landscape Maintenance/Replacement: The property owner is responsible for
the installation and warranty of all landscaping both on -site and off -site adjacent
to right of ways.
(10). Location and type of open space and common areas.
The open spaces in the Hutton Ranch Plaza will consist of the perimeters areas
of the development including areas within ; the highway right-of-way. The
proposed landscaping standards for the highway right-of-way and perimeter
areas are defined in the landscaping plan discussed in item 9 above.
(11). Proposed maintenance of common areas and open space.
As stated in the Covenants, Hutton Ranch Associates, LLC, will be responsible
for the maintenance of all common areas and open space on the site.
(12). Property boundary locations and setback lines.
Property boundary locations and setbacks are shown on the Preliminary Plat and
site plan. It should be noted that some of the buildings will have zero lot line
setbacks (side lot lines) and that other pad tenants may not always comply with
side and rear lot line setbacks with respect to their property line, but separation
between buildings will meet the setback requirements.
(13). Special design standards, materials and/or colors.
Commonality of building exterior material, finishes and colors will also be critically
important in creating a cohesive family of buildings. The buildings of Hutton
Ranch Plaza will be allowed to achieve identity by selecting from a well controlled
and complementary palette of appropriate materials, finishes and colors. This
palette derives its inspiration from the northern Rocky mountain region, using
stone veneer, wood framing, split face masonry and colors indigenous to the
area.
17
Entry roof forms will be created by standing seam metal roofs, open wood
trusses and framing. Articulated cornices may be created from cement plaster
over foam shapes, wood trellises or bracketing. Vertical planes will be enhanced
by varying the textures, heights, scale of the material used, architectural detailing_
of accent material and will include stone veneer, cement plaster, . split face
masonry, and the accents. The display areas will use glass and aluminum
storefronts and entrances. The concrete sidewalks will have defined areas of
integral colored concrete and special textures, materials and patterns.
Inspired by the natural materials of the regional rocky mountains the colors of the
cement plaster and paint are rich, muted, weathered and sophisticated. The
colors will include deep terra cottas, olive and sage greens, golden browns, warm
tans, burnt orange, slate grey/blue, stone greys.
(14). Proposed schedule of completions and _ phasing of the
development, if applicable.
The Hutton Ranch Plaza Planned Unit Development is proposed to be completed
in two phases. Phase 1 consists of the area north of Hutton Ranch Road and
Phase 2 consists of the land south of Hutton Ranch Road. The exact timing of
when each phase will be completed is not exactly known at this time and will be
driven by interested tenants and when they would want to start construction. It is
anticipated, however, that design and construction of required Phase 1
improvements would begin immediately upon approval of the PUD and
Preliminary Plat with tenant building construction beginning in the early spring of
2006. Phase 2 improvements may be constructed concurrent with Phase 1 or
may be delayed until tenants are found for this half of the development.
The table below summarizes the major improvements anticipated for each
phase. The column labeled "other" relates to the improvements that will be made
when individual pad sites are developed.
Proposed Infrastructure Phasing
Hutton Ranch Plaza
Element
Phase
1
Phase
2
Other
Wastewater Collection — North Side
X
Wastewater Collection — South Side
X
Wastewater Collection — Hutton Ranch Road
X
Water Distribution — North Side
X
Water Distribution — South Side
X
Water Distribution — Hutton Ranch Road
X
Stormwater Collection — North Side
X
Stormwater Collection — South Side
X
Stormwater Collection — Hutton Ranch Road
X
M
Stormwater Storage and Release
X
West Approach and Internal.Road - North Side
X
Center Approach and Internal Road - North Side
X
East Approach and Internal Road - North Side
X
West Approach and Internal Road - South Side
X
- - --
Center Approach and Internal Road - South Side
X
East Approach and Internal Road - South Side
X
Major Tenant Parking - North Side
X
Major Tenant Parkin - South Side
X
Pad Parking
X
Major Tenant Parking Lot Lighting - North Side
X
Major Tenant Parking Lot Lighting - South Side
X
Hutton Ranch Road Lighting
X
Pad Lighting
X
Major Tenant Parking Lot Landscaping - North
Side
X
Major Tenant Parking Lot Landscaping - South
Side
X
Hutton Ranch Road Landscaping
X
Common Area Landscaping - North Side
X
Common Area Landscaping - South Side
X
US 93 Landscaping - North Side
X
US 93 Landscaping - South Side
X
Pad Landscaping
X
US 93 Intersection and Traffic Signal
Improvements
X
US 93 Approach - North Side
X
Second Access Road to FVCC
X
FVCC North Access Intersection Improvements
X
(15). Covenants, conditions and restrictions.
CCR's are located in Appendix A:
(16). Any other information that may be deemed relevant and
appropriate to allow for adequate review.
Parking lot lighting will be designed to maintain 2±foot candles minimum utilizing
30'-0" high poles and 250 watt metal halide lamps. The fixture design will be
compatible with the Plaza design concept.
There will also be pedestrian oriented fixtures along walk ways with 12'-0" high
poles providing general illumination at ground level and landscaping.
Security wall fixtures will also be provided at rear drive aisles and loading areas.
Fixtures will be down lights with no visible lamps.
19
Occasional up lighting on walls may be used to highlight the buildings
architectural character.
HA3919 Phil Harris\004 Commercial Plat PUD\Forms\PUD Narrative -Section E.doc
20
TENANTS OF SOLITARY STRUCTURES SPECIFIED AS PAD BUILDINGS
PAD BLDG TENANT SIGN - INDIVIDUALLY. ILLUMINATED PAN CHANNEL LETTER DISPLAY 1./2" = P-0"
SUGGESTED FABRICATION
ALUMINUM LETTERS WITH 5" RETURNS TO BE PAINTED INSIDE WHITE, OUTSIDE BLACK. 3/4" BLACK TRIM CAPS
AND 3/16" WHITE ACRYLIC FACES W/ TRANSLUCENT VINYL OVERLAY,
LETTERS TO BE ILLUMINATED WITH D/f 15MM NEON TUBES, ELECTROBITS WIRING COMPONENTS AND 30MA/11OV
REMOTE TRANSFORMERS.
LETTERS TO BE MOUNTED ONTO THE FASCIA WITH APPROPRIATE FASTENERS.
SIGNS PLACED ON ALL FOUR SIDES OF BUILDING (IF APPLICABLE)
TOTAL SIGN AREA BASED ON RATIO OF 1.5 SQUARE FOOT FOR EACH LINEAL FOOT OF PRIMARY ENTRY FRONTAGE
SIGNS CANNOT EXCEED 70% OF THE LENGTH OF FASCIA.
TYPICAL ELEVATION 1/16" = 1r4r
Location On facade over entry, side and rear walls subject
to Owner approval
Size 1.5 sf ft per lineal ft frontage, Maximum - 28" letters
Materials Aluminum / acrylic
Finishes per Tenant Corporate color scheme
Illumination Neon or LED internal
Graphics Per Tenant Corporate Graphics
Instaliflon On facades
I—=r
975 hillcroft circle
1-Boxiorcernecticn oakIard, ca 94610
'rn
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(510} 893-5840
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Bndd:ngWal Kalispell, Fontana
HANINEL LEITERS M;PHING DFAIL
N.T.S.
Comprehensive Sign Plan
wed
TENANTS OF ALLOCATED SPACES OF9,999 SQ.FT, AND LESS
----------------------------------- low ----- __------------------------__ Location On facade over entry, and walls subject
I
to Owner approval
LOGO BOX N
Size 1.5 sf ft per lineal ft frontage, Maximum - 24" letters
I r
MEN—
Mateldals Aluminum / acrylic
I
-------------- '--- --- - - -- -- - ` -----------------— --
Finishes per Tenant Corporate color scheme
IN -LINE TENANT SIGN - INDIVIDUALLY. ILLUMINATED PAN CHANNEL LETTER DISPLAY 1/2" = P-0"
SUGGESTED FABRICATION II{umination Neon or LED internal
L I [-I
ALUMINUM LETTERS WITH 5" RETURNS TO BE PAINTED INSIDE WHITE, OUTSIDE BLACK. 3/4" BLACK TRIM CAPS Graphics Per Tenant Corporate Graphics
AND 3/16" WHITE ACRYLIC FACES W/ TRANSLUCENT VINYL OVERLAY.
LETTERS TO BE ILLUMINATED WITH D/T 15MM NEON TUBES, ELECTROBITS WIRING COMPONENTS AND 30MA/110V Installation On facades
REMOTE TRANSFORMERS,
LETTERS TO BE MOUNTED ONTO THE FASCIA WITH APPROPRIATE FASTENERS.
SIGNS CENTERED ON THE FACADE
TOTAL SIGN AREA BASED ON RATIO OF 1.5 SQUARE FOOT FOR EACH LINEAL FOOT OF PRIMARY ENTRY FRONTAGE
SIGNS CANNOT EXCEED 70% OF THE LENGTH OF FASCIA.
TYPICAL ELEVATION 1/16" = 1'-0"
r2--F
3r15 Arryir Free
Neon stand-M
ShortSleeve11actrol$SS5 —
Y
GTOS!eeviag3?30
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End Cap WdeEio trobitECW.5
;
13 rr 15 mm lVan I
BlackTrim-Caps
5' Black Aluminum Ret' ^
N.T.S.
PAN -CHANNEL LETTERS MOUNTING DETAIL
1-Boxiorconnection
hetween the letters
114" x 21l2" Screws
Rin. A Per Urs.l
GTO W re it flex
conduit to remote
transformer wl disconnect
switch above ceiling
Building Wall
915 hiilcroft circle
oalclanu, ca 94610
( 5 1 0 ) 893.5840
fax (510) 893-5841
ierry@ierrywyrnan.com
Hutton Ranch Plaza
Kalispell, Fontana
Comprehensive Sign Plan
TENANTS OF ALLOCATED SPACES OF 40,000 SQ.FT. OR MORE
Location
On facade over entry, side and rear walls subject
to Owner approval -
__ ___
o
Size
1.5 sf ft per lineal ft frontage, Maximum - 6 ft letters
w
Materials
Aluminum / acrylic
'
v
' i
,
w
rr
'
Finishes
per Tenant Corporate color scheme
'--- -_ _ __ _---
--- -- --U- -- ---'
-1
Illumination
Neon or LED internal
ANCHOR TENANT SIGN - INDIVIDUALLY. ILLUMINATED PAN CHANNEL LETTER DISPLAY
3/16" "= 1'-0"
Graphics
Per Tenant Corporate Graphics
SUGGESTED FABRICATION
ALUMINUM LETTERS WITH 5" RETURNS TO BE PAINTED INSIDE WHITE, OUTSIDE BLACK. 3/4"
BLACK TRIM CAPS AND 3/16" WHITE
Installation
On facades
ACRYLIC FACES W/TRANSLUCENT VINYL OVERLAY.
LETTERS TO BE ILLUMINATED WITH D/T 15MM NEON TUBES, ELECTROBITS WIRING COMPONENTS
AND 30MA/110V REMOTE
5
TRANSFORMERS.
1-Box for connection
LETTERS TO BE MOUNTED ONTO THE FACADES WITH APPROPRIATE FASTENERS.
batweeniheletters
3A Fcr/li
114"x21/2'Screws
Neon Stand -Offs
Short Sleeve Electrobit SS5
? (Min. d Per Ltrs.)
x ;
Gi0 Sleewnd 3730
sr
Cap Wide Electrobit E045
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TOTAL SIGN AREA BASED ON RATIO OF 1.5 SQUARE FOOT FOR EACH LINEAL FOOT OF PRIMARY ENTRYFRONTAGE
2/ or 15 kTfilm
r f' B(ackT m-Caps----+:::>s3s:::
transformerow/ disconnect
SIGNS CANNOT EXCEED 70io OF THE LENGTH OF FACADE.
; :<
.::
1 avitch abaveceifng.
5" Black Aluminum Returas---
Building Wall
PAN -CHANNEL LE7ERS MOUNTING DETAIL N.T.S.
UL 6.pproved
TYPICAL ELEVATION 1/32" = P-0"
975 hillcroft circle
oakland, ca 94610
( 5 1 0 ) 8 9 3 - 5 8 4 0
fax (510) 893-5841
ferry@jerrywyntan.com
Hinton Ranch Plaza
Kalispell, Montana
Comprehensive Sign Plan
Anchor Tenant
r--------------
ti- � t
LOGO
I
� 1
TENANTS OF ALLOCATED SPACES OF 10,000 TO 39,999 SQ.FT.
r--- --- AMW-- ---- --- --- --------------------------
Mff
,
� I o
' I �
`--- - - A--
Location On facade over entry, side and rear walls subject
to Owner approval
Size 1.5 sf ft per lineal ftf-rontage, Maximum - 4 ft letters
Materials Aluminum / acrylic
Finishes per Tenant Corporate color scheme
Illumination Neon or LED internal
MAJOR TENANT SIGN - INDIVIDUALLY. ILLUMINATED PAN CHANNEL LETTER DISPLAY 11/2" = 1'-011 Graphics Per Tenant Corporate Graphics
SUGGESTED FABRICATION
ALUMINUM LETTERS WITH 51, RETURNS TO BE PAINTED INSIDE WHITE, OUTSIDE BLACK. 3/4'r BLACK TRIM CAPS Installation On facades
AND 3/1611 WHITE ACRYLIC FACES Vd/TRANSLUCENT VINYL OVERLAY.
LETTERS TO BE ILLUMINATED WITH D/T 15MM NEON TUBES, ELECTROBITS WIRING COMPONENTS AND 30MA/110V
REMOTE TRANSFORMERS.
LETTERS TO BE MOUNTED ONTO THE FACADE WITH APPROPRIATE FASTENERS. R
SIGNS CENTERED ON THE FASCIA
TOTAL SIGN AREA, BASED ON RATIO OF 1.5 SQUARE FOOT FOR EACH LINEAL FOOT OF PRIMARY ENTRY FRONTAGE
SIGNS CANNOT EXCEED 70% OF THE LENGTH OF FACADE
TYPICAL ELEVATION 1/161, = 1'-01,
3/16 A01ir Fos
Neon Stan -Offs
Short 5leeva Eeckobit 555
GTOSle-A-123730 —
En Can Wit: E3echabit ECNS
13 cr 15 mm Neca 14bas
3/d" Mack Trim -Caps —
5" Ol:ck Aluminum
PAN-CHANNLI LETTERS MOUNI)NG MAIL N'.&
UL Ap;rmd
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975 hillcro(t circle
Oakland, ca 94610
(510) 893-5840
fax (510) 893-5841
i erry@i errywyma n. com
Hutton Ranch Plaza
Kalispell, Montana
Comprehensive Sign Plan
Location
Various within site
Size
2' x 4' maximum
Materials
Aluminum post & panel
Finishes
Per Center coolorscheme
Illumination
Non Illuminated
Graphics
per Center Typestyle
Installation
Concrete footings
SIGN D -SMALL WAY -FINDING SIGN
3/4" - I'4'
975 hillcroft circle
Oakland, ca 946 10
( 5 1 0 ) 8 9 3 - 5 8 4 0
fax (510) 893-5841
jerryL%a jerrywyman.com
Hinton Ranch Plaza
Kalispell, Montana
Comprehensive Sign Plan
I1'-6" (ACTIVE SIGN AREA)
y 93 at north and South ends of site
area 199 sq ft
tone surface, structural steel, aluminum cabinet
illuminated letters and graphics
narrt corporate colors
ors, exposed neon
and logo signature - tenant graphics
,to foundation,
SIGN A - PRIMARY PYLON SIGN
1/1111-11-01,
975 hillcroft circle
cakland, ca 94610
( 5 1 0 ) 8 9 3 - 5 8 4 0
fax (5 10) 893-584 1
jerry@bierrywyman.com
Hutton Ranch Plaza
Kalispell, Montana
Comprehensive Sign Plan
PYLON
F (10) LOADING NASHILOADING
PAD A
5.000 15m
MA JOR MAJOR
T ik! v i�..
BUILDING BUILDING
50, 000 S. F. 40, 000 S. F.
PAC) B
5,800 S 1-23M' -
T — 235'
294'
65, u7M u
& H, TH F FFF117
IT I I I ITI I II I&m I I 1711111 I ITFTM F. ,
PAD E
5101
PAD F
5.000
SERVICE TAT I ON
ORAGE
ANKS
U - ult
-CANOPY ABOVE
LOADING
MA JOR
BUILDING
27,000 S.
H
SHOPS
20, 000 S. F.
PAD G
6,000
STORM RETENTION
E BLDG. AREA
60,000 S.F. BL,DG. 3
;D
14 - SCREE
THEATRE
44.650 S.F
2,000 SEAT
3
--------- 130—
ij lil I I I
j
60' 0 RIGHT OF WA
PROPOSED STREET
.................................................................. -------
SITE PLAN
SCALE: 1" = 40'-0"
THEATRE
44. 650 S.F.
2,000 SEATS
RETAIL
177, 350 S.F.
RETAIL PARKING
4.5 STALLS / 1,000 S.F. 798 STALLS REQUIRED
THEATRE PARKING I
5 SEATS / STALL - 4010 STALLS REQUIRPn
MA
®R
SIGN C - WALL DIRECTIONAL SIGN
112" -1'-0°
10'-0"
M
Location
At major intersection within Center
Size
each panel 2' x 10'
Materials
Aluminum - acrylic
Finishes
Per Center colors
Illumination
800 MA Fluorescent
Graphics
Tenant names - arrows
Installation
On masonry wall feature
16"
in
Y 'M e.
975 lhiilcroft circle
oakland, ca 94610
(510j 8 9 3 - 5 8 4 0
fax (510) 893-5841
jerry@ierrywyman.com
Hutton Ranch Plaza
Kalispell, Montana
Comprehensive Sign Plan
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Hutton Ranch Associates, LLC
c/o Philip Harris
4 Sunset Plaza, Suite 201
Kalispell, Montana 59901
DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS AND GRANTS OF EASEMENTS
Im
HUTTON RANCH ASSOCIATES, LLC
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TABLE OF CONTENTS
Page
SECTION 1. GENERAL PROVISIONS AND DEFINITIONS .............................................. 1
SECTION 2. B'UILDING AREA; PA.RKiNG REQUIREMENTS .........................................
7
,-SECTION 3. C ONSTRUCTION AND DEVELOPMENTS....................................................
8
:SECTION 4. COMMON AREA CONSTRUCTION, USE, MAINTENANCE AND
MANAGEMENT; AND SHOPPING CENTER SIGNAGE ..........................
13
SECTION 5. TAXES AND ASSESSMENTS..........................................................................
24
SECTION 6. SHOPPING CENTER USES.............................................................................
24
SECTION 7. EXPRESS GRANTS OF EASEMENTS...........................................................
27
SECTION8. INSURANCE.......................................................................................................
29
;. SECTION 9. DAMAGE AND DESTRUCTION....................................:...............................
33
SECTION 10. THE ASSOCIATION........................................................................................
37
SECTION 11. MORTGAGEE PROTECTION.......................................................................
43
:, SECTION 12. MISCELLANEOUS PROVISIONS................................................................
43
SECTION13. NOTICES...........................................................................................................
47
SECTION 14. AMENDMENT; TERM AND TERMINATION; OTHER MATTERS ......
48
EXHIBITS:
.•
B LEGAL DESCRIPTION OF ENTIRE PROPERTY
C SITE PLAN
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DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS AND GRANTS OF EASEMENTS
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND GRANTS] OF EASEMENTS ("Declaration") is made as of the day of ,
2005, by Hutton Ranch Associates, LLC, a Delaware limited liability company ("Developer"),
located at 4 Sunset Plaza, Suite 201, Kalispell, Montana 59901.
RECITALS
A. The property subject to this Declaration (hereinafter referred to as the "Entire
.Property" or the "Shopping Center") is .situated in the City of Kalispell ("City"), County of
Flathead ("County"), State of Montana ("State"). The Entire Property is shown on the Site Plan
attached hereto as Exhibit A (the "Site Plan"), and legally described in Exhibit B attached hereto.
;Each of the pafcels comprising the Entire Property is also shown on Exhibit A and is legally
described on Exhibits C-1 through C- attached hereto.
B. Developer is the owner of the Entire Property.
C. Developer desires that the Entire Property at all times be developed, owned and
operated as an integrated mixed use commercial retail center for the mutual benefit of all land
comprising the Entire Property and any and all subsequent owners thereof and their Occupants
(as hereinafter defined), and accordingly does hereby establish a general plan for the
improvement, development, maintenance and use of the Shopping Center as a commercial,
mixed use shopping center and for such purposes. Developer does hereby establish certain
easements, covenants, restrictions, liens and charges (collectively, the "Restrictions") as are
hereinafter set forth, upon and subject to which the Entire Property shall be improved,
maintained, held, exchanged, leased, used, occupied, sold and/or conveyed.
SECTION 1. GENERAL PROVISIONS AND DEFINITIONS.
1.1 Site Plan. Developer intends to develop the Shopping Center in generally the
manner shown on the "Site Plan". Nothing on the Site Plan constitutes any representation or
warranty that any particular occupant will be located in or will remain in or operate in the
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Shopping Center. Developer reserves the right to (i) modify the Site Plan from time to time
including the configuration of the parking and drive aisles, provided the parking requirements set
forth in Section 2.2 are not thereby violated; (ii) in accordance with the requirements of the
Montana Department of Transportation or other governmental agency of competent jurisdiction,
modify the access points from Highway 93 into the Shopping Center; and (iii) modify the lot
lines of individual Parcels provided the parking ratios set forth in Section 2.2 are not thereby
violated.
1.2 Building and Common Areas. For the purpose of this Declaration, the Entire
Property is divided into two (2) categories which relate to use, ' hereinafter referred to
respectively as "Building Area" and "Common Area", as more particularly described- below.
Within the definition of "Common Area", for various purposes as set forth herein, there shall be
various categories, i.e. Common Area that is located on an Owner's Parcel between the exterior
of the Building and the inside of the curb line on such Owner's Parcel, Cominon Area that is on
an Owner's parcel from the inside of the curb line to the Parcel boundary, and Common Area
that is developed primarily for purposes of parking and ingress and egress to the Shopping
Center and is shown on the Site Plan as "No -Build Area".
1.3 Intent that Declaration Controls Development and Use of Entire Property. Each
of the Restrictions (i) is imposed upon each parcel of land now or hereafter comprising all or any
portion of the Entire Property (each, a "Parcel," and together, the "Parcels") as a mutual
equitable servitude in favor of all Parcels comprising the Entire Property, (ii) shall create
reciprocal rights and obligations between and among each Owner of such Parcels, and (iii) shall
create a privity of contract and estate between and among the Owners of such Parcels. Each of
the Restrictions are intended to and shall run with the land, and each parcel of land now or
hereafter comprising all or any portion of the Entire Property is and shall be burdened by the
covenants of its Owner for the benefit of the other Parcels in the Entire Property. Each covenant
to do or refrain from doing some act on a Parcel (i) is a burden upon such Parcel for the benefit
of the Entire Property, (ii) runs with each Parcel, and (iii) shall bind each Owner of a Parcel
during its ownership of such Parcel or any portion thereof or any interest therein derived in any
manner.
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1.4 No Gift, Dedication or Third Party Beneficiaries. Nothing herein contained shall
be deemed to be a gift or dedication of any portion of the Shopping Center or of any Parcel or
portion thereof to the general public, or for any public use or purpose whatsoever. ._Except _.as.
herein specifically provided, no right, privileges or immunities of any Owner or Occupant shall
inure to the benefit of any third party, nor shall any third party be deemed to be a beneficiary of
any of the provisions contained herein.
1.5 'Right to Appoint Occupant as Attorney -in -Fact. Each Owner of a Parcel shall
have the right; to appoint one Occupant of its Parcel as its attorney -in -fact and to assign to one
Occupant of its Parcel the right to enforce the rights and benefits such Parcel is entitled to, and to
satisfy the obligations of such Parcel and the Owner thereof, under this Declaration. However,
no such appointment and/or assigrunent shall relieve the Owner of the primary responsibility to
satisfy all obligations of the Owner and its Parcel hereunder. Notwithstanding any such
appointment or assignment, the Parcel Owner shall continue to have the right to independently or
concurrently enforce the rights and benefits such Parcel is entitled to hereunder, and if the
i
position of the Owner and its Occupant conflict, the Owner's position shall prevail with respect
to the other Owners.
1.6 ' Definitions. When used in this Declaration, the terms defined in the Recitals shall
have the meanings set forth in the Recitals and the terms defined elsewhere in the Declaration
shall have the meaning set forth in the Declaration and the following terms shall 'have the
following meanings:
(a) Affiliate. When used with reference to a specific Person, any Person that
directly or indirectly through one or more intermediaries controls or is controlled by or is under
common control with the specific Person.
(b) Building. Any structural improvement on any Parcel which is enclosed by
exterior walls, floor and roof and is designed for human occupancy and the conduct within of
activities and business by the Owner or Occupant of such improvements. For purposes of an
Owner's maintenance obligations, Building canopies, awnings, overhangs, support columns,
pilasters, footings and Service Facilities shall not be deemed part of the Common Area, but shall
be deemed Building.
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(c) Building Area. All those areas on each Parcel lying within the Building
Limit Lines shown for that Parcel on the Site Plan which are from time to time covered with a
Building.
(d) Building Limit Lines. Lines established by the Developer, from time to
time, within each Parcel and across Parcel lines.
(e) Common Area. All those areas on each Parcel which are not a Building
Area or a Service Facility together with those portions of the Building Area on each Parcel which
are not from time to time actually covered by a Building or other commercial structure or which
cannot under the teens of this Declaration be used for Buildings.
(f) Curb Line. The lines as shown on Exhibit which consists of a
concrete or similar partition between the sidewalk surrounding a Building and parking area
adjacent to the sidewalk. The Curb Lines may be relocated in connection with a modification of
the location of Building Limit Lines.
(g) Developer. Hutton Ranch Associates, LLC, or any "Developer Affiliated
Entity" or "Developer Assignee") (as hereinafter defined) which acquires all or a portion of the
Shopping Center and to which the rights and obligations of Developer hereunder are assigned.
For purposes of this Declaration, (i) the term "Developer Affiliated Entity" shall mean Philip
Harris, an individual, or any partnership, corporation, limited liability company or other entity
owned, directly or indirectly, in whole or in part by Philip Harris; and (ii) a Developer Assignee
shall be any single entity acquiring twenty percent (20%) or more of the "Permissible Aggregate
Building Area", as herein defined, calculated without reference to the Parcels on which the hotel
and movie theater are located, and to which Developer has assigned its duties, rights and
obligations hereunder.
(h) Floor Area. The total number of square feet of floor space permitted to be
constructed within a Building Area until such time as a Building is in fact constructed and then
the actual Floor Area in the Building whether or not actually occupied (but excluding any
basement, balcony or mezzanine space, if the same is not used for sales area or generally open to
the public). Floor Area shall be measured from the exterior line of the exterior walls and from
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the center line of any party or common interior walls without deduction for columns, walls or
other structural or non-structural components.
(i) Improvements. The Building, Service Facilities, landscaping, signs and
any other improvements constructed by an Owner and located on a Parcel.
Mortgage, Mortgagee. A Mortgage means a mortgage or deed of trust
�1) —.�
encumbering a Parcel or other portion of the Shopping Center. A Mortgagee means the
mortgagee under a Mortgage.
(k) No -Build Area. The portion of the Common Areas designated "No -Build"
Area on the Site Plan, also herein sometimes called "General Comrnon-Area". In no event shall
any occupiable'structure be constructed on the No -Build Area.
(1) Occupant. Any Person claiming a leasehold or subleasehold interest in a
Parcel or similar right to exclusively use and occupy all or any portion of a Parcel under or
through the Owner.
(m) Owner. The record owner, whether one or more persons, of fee simple
title to any Parcel which is part of the Shopping Center. Owner shall not include those having
any such interest merely as security for the performance of an obligation. Owner is sometimes
herein referred to as "owner."
(n) Parcel._ Each of..the _separate Parcels which are described in Recital A,
above. If any Parcel is subsequently divided into one or more separate legal parcels (whether by
parcel map, final subdivision map, lot line adjustment, or other legal process) then the rights and
restrictions set forth in this Declaration that apply to the Parcel which has been so divided shall
apply to each of the resulting legal parcels, as well.
(o) Permissible Aggregate Building Area. The aggregate number of square
feet of Building Area permitted to be constructed in the Shopping Center from time to time,
which shall never be more than the lesser of (i) the amount allowed under applicable legal
parking requirements for the Shopping Center or (ii) the amount allowed pursuant to Section 2.2.
A Parcel size and the permissible building area on any particular Parcel may be modified by
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Developer, from time to time, provided the total number of square feet of Permissible Aggregate
Building Area is not increased thereby.
(p) Permissible Floor Area. The maximum square feet of Floor Area
permitted to be=constructed on a Parcel from time to time.
(q) Permittees. The respective officers, directors, shareholders, members,
partners, employees, licensees, agents, contractors, invitees, visitors, customers and tenants and
subtenants (and each tenant's and subtenant's respective officers, directors, shareholders,
members, partners, employees, licensees, agents, contractors, invitees, visitors, customers and
subtenants) of the Owners and Occupants.
(r) Person. "Person" shall mean a natural person, a corporation, a
partnership, a trust, a limited liability company, or any other form of entity.
(s) Phase I and Phase II. The areas of the Shopping Center as shown on the
Site Plan.
(t) Service Facilities. Loading docks, truck ramps and truck wells and similar
loading areas, trash enclosures, bottle and waste paper storage areas, drive through structures,
outside dining areas, play areas and customer service facilities and other similar service facilities
intended for the exclusive use of less than all Occupants of the Shopping Center.
(u) Sign Program. The sign program for the Shopping Center adopted or to be
adopted by Developer, as the same may be amended from time to time in accordance with the
terms of this Declaration.
(v) Utility Systems. The electrical, gas, fiber optics, telephone, cable or
satellite television, and water, sprinkler, drainage and sewer systems or structures servicing the
Parcels including, among other things, all of the lines, wiring, outlets, pipes, conduits, valves,
and meters relating thereto.
1.7 Approvals by Developer. Where this Declaration specifies Developer's approval
is required, it shall mean the written approval of Developer.
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SECTION 2. BUILDING AREA; PARKING REQUIREMENTS.
2.1 Building Area. The construction, establishment and maintenance of Buildings
upon the Entire Property shall be located only within the Building Limit Lines, as modified by
Developer from time to time pursuant to Section 1.6(M. No Building on a Parcel shall have a
Building Area;in excess of the amount when added to all other Building Areas in the Phase
exceeds the Permissible Aggregate Building Area for the Phase. Every Building shall be of first
quality construction. No Building shall be built in such a manner as to adversely affect the
structural integrity of any other Building in the Shopping Center. Every Building shall be
constructed in such a manner as not to adversely affect the fire rating of any, Building built upon
any other Parcel, so that Buildings built on each Parcel may be fire rated as separate and -distinct
units.
2.2 Parking Requirements. The parking requirements for the portion of the Shopping
Center located; north of the proposed road (Phase I) and the portion of the Shopping Center
located south of the proposed road (Phase II) shall be independent of each other. For Phase I, (i)
if there is a hotel, there shall be not less than 1 parking space per room; and/or (ii) if there is a
theatre, there shall be not less than 1 parking space for every 5 seats in the theatre; and (iii) in
addition to the! arking spaces required for a hotel and/or theatre, there shall be not less than 4.5
ip
parking spaces for, every 1,000 square feet of Building Area in Phase I exclusive of the square
footage occupied by the hotel and/or the theatre. In addition to the foregoing requirements for
Phase I, so long as a theatre is located in Phase I, there shall be not less than 5 spaces for every
1,000 square feet of Building Area in Phase I excluding the square footage of the hotel; except
that if there is neither a hotel nor a theatre in Phase I, then there shall be not less than 4.5 spaces
for every 1,000 square feet of Building Area in Phase I. For Phase II, there shall be not less than
4.5 spaces for every 1,000 square feet of Building Area in Phase II, exclusive of the square
footage occupied by any gas station. Any gas station constructed shall have the number of
parking spaces on the gas station parcel equal to the total number of such spaces required under
parking regulations adopted by the City which are in effect at the time of construction of the gas
station.
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SECTION 3. CONSTRUCTION AND DEVELOPMENTS
3.1 Design and Construction of Buildings.
(a) All Buildings to be constructed in the Shopping Center .shall conform to
the requirement's of the architectural guidelines as modified by Developer and as approved by
governmental authorities from time to time, attached hereto as Exhibit (the "Architectural
Guidelines"). '
(b) The grade or drainage of any Parcel shall conform to the requirements set
forth by Developer at the time Plans and Specifications are reviewed and may not be altered,
modified or otherwise changed in any manner whatsoever without -the consent of Developer,
which may be granted or withheld in Developer's absolute and sole discretion.
3.2 Review and Approval of Plans.
i
O Submittal of Plans. No Improvements of any nature whatsoever shall be
commenced, constructed, placed, assembled, replaced or erected and maintained on any Parcel,
nor shall any addition, change or alteration to the exterior of any Improvements (collectively,
"Construction"):be made until Developer has approved the plans and specifications therefor in
accordance with the provisions of this Section 3.2. Prior to commencing any Construction, the
applicable Owner shall deliver to Developer for Developer's review a complete set of building
and site plans (collectively, "Plans and Specifications") (showing, among other things, exterior
color and architectural design and decor), elevations, aesthetic treatment and other like pertinent
information, and a plan for staging of construction, including, without limitation, the location of
any temporary buildings or construction sheds, the storage of building materials, and the parking
of construction vehicles and equipment, and the location of fencing for such staging and storage
areas. All improvements that will be constructed in the Common Areas whether by Owner or
Developer located on the Parcel that is the subject of the review shall be shown on the Plans and
Specifications. All Improvements shall be commenced and constructed only in accordance with
Plans and Specifications approved by Developer in accordance with this Section 3.2. Each
Owner shall construct its own Building, any adjacent sidewalk (up to but not including the curb)
including installing any landscaping between the Building and the Curb Line, and any Service
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Facilities located on such Owner's Parcel, and shall be responsible for extending to the Building
any utilities brought to the Curb Line by Developer. Subject to the preceding sentence,
Developer shall be responsible for constructing or installing all landscaping, ..all_pavm' g_
(including paving of drive -up or drive -through lanes), and all parking areas, automobile ingress
and egress, curbs and curb cuts, driveways, and the like, whether on an Owner's Parcel or on the
General Common Area. ' Developer shall stub all utilities to the Curb Line on each Parcel.
Notwithstanding the above but subject to the prior approval of Developer pursuant to this Section
3.2, the Owners) of a gas station facility shall be responsible for the construction on its Parcel of
all improvements on such Parcel including but not limited to utilities, paving, striping, etc.
(b) Plan Approval.
(i) Procedure. Within twenty-one (21) days following submission of
the Plans and Specifications, Developer shall notify the applicable Owner whether the same are
approved, disapproved or conditionally approved. Developer may conditionally approve any
Construction. Any disapproval shall set forth the general reasons for such disapproval.
Thereafter, the applicable Owner shall revise its Plans and Specifications to incorporate such
changes as may be requested to secure Developer's approval, and shall resubmit the revised
Plans and Specifications to Developer for review. This process shall continue until such time
that the Plans and Specifications have been approved by Developer, which approval shall not be
unreasonably withheld. To the extent any subsequent material changes are made by the
applicable Owner to any approved Plans and Specifications, such changes shall be subject to the
provisions of this Section 3.2, and the Owner shall secure the approval of Developer as provided
herein.
(ii) Standard of Review; Non -liability for Approval or Disapproval.
Plans and Specifications shall be reviewed by Developer to determine if the Construction is
consistent with the Architectural Guidelines, and to ensure that the Plans and Specifications are
in compliance with this Declaration. The Plans and Specifications shall not be reviewed and/or
approved for engineering design, or for compliance with zoning and building ordinances, or
other applicable statutes, ordinances or governmental rules and regulations. Developer and its
shareholders, officers, directors, employees, members, agents, attorneys, consultants and
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independent contractors shall each not be liable in damages or otherwise for any reason,
including any mistake in judgment, negligence or nonfeasance arising out of or in connection
with the approval or disapproval or failure to approve or disapprove any Plans_._and
Specifications.
(c)i General Construction Requirements.
(i) Manner of Performance. All work performed by an Owner
pursuant to Section 3.2(a) in the Construction of any Improvements located on a Parcel shall be
effected as expeditiously as possible and in such a mariner as not to unreasonably interfere with,
obstruct or delay (A) access to or from any Parcel, or any part thereof, or to or from any public
right-of-way; (B); construction work being performed on any other Parcel; or (C) the use,
enjoyment or occupancy of any other Parcel. Unless otherwise specifically stated herein, an
Owner shall, at its; sole cost and expense, promptly repair and restore all damage on other Parcels
damaged or destroyed in the perfon-nance of such Construction. Any staging area approved by
i
Developer shall b!e removed as soon as possible following completion of Construction and any
damage thereto shall be repaired by the constructing Owner. If an Owner or Occupant
commences Construction of Improvements within the Shopping Center, but such Construction
ceases prior to the completion of the Improvements for a period in excess of one hundred twenty
(120) days, and Developer in its reasonable discretion determines that such unfinished
Improvements create an unsafe or unsightly condition detrimental to the Shopping Center,
Developer may construct a barricade around such Improvements. Upon any such work by
Developer or if the Constructing Owner fails to restore any staging area upon completion of
Construction, the Owner upon whose Parcel the Improvements are located shall reimburse
Developer upon demand for monies so expended. Such reimbursement shall be paid within
thirty (30) days after receipt by Owner of a detailed invoice from Developer. If an Owner or
Occupant commences any Construction of Improvements within the Shopping Center, such
Owner or Occupant is required to diligently pursue such Construction to completion. The cost of
fencing any staging area approved by Developer shall be borne by the Owner.
The person or entity undertaking Construction work on a Parcel shall: (i) pay all, costs
and expenses associated with such work; (ii) take necessary measures to minimize disruption and
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inconvenience caused by such work; (iii) make adequate provisions for the safety and
convenience of Owners, Occupants and their Permittees; (iv) control dust, noise and other effects
of such work using methods customarily utilized in order to control such deleterious effects_
associated with ;construction projects in a populated or developed area; (v) repair any and all
damage which may be caused by or result from such work; (vi) restore all affected portions of
any Parcel to a condition equal to or better than the condition existing prior to beginning such
work; (vii) indemnify and hold harmless Owner and all other Occupants of the Shopping Center
against any mechanics liens for such work, particularly as to Common Areas, and cause any such
outstanding lien or claim of lien to be released or transferred to bond in accordance with
.applicable law. =Such construction shall not unreasonably interfere with the business operations
on any other Parcel and shall not block or impede the Shopping Center ingress or egress from
public streets.
(ii) Standard of Work. All work performed in the Construction of any
Improvements located on any Parcel shall be done in a good and workmanlike manner and, as
applicable, in accordance with good engineering standards.
(iii) Temporary License. Each Owner hereby grants to the other
Owners a temporary license for access and passage over and across the Common Area located on
the granting Owner's Parcel, to the extent reasonably necessary, including temporary staging
area, for an Owner to construct Improvements upon its Parcel; provided, however, that such
license shall be in effect only during periods when actual Construction is being performed, and
provided farther that the use of such license shall not unreasonably interfere with the use and
operation of the Common Area on the granting Owner's Parcel or materially interfere with the
operation of the granting Owner's Parcel, or its occupant's business. Prior to exercising the
rights granted herein, an Owner shall provide each granting Owner with a written statement
describing the need for such license, and shall furnish a certificate of insurance showing that its
contractor has obtained the minimum insurance coverage required by this Declaration. The
Owner shall promptly pay all costs and expenses associated with such Construction, shall
complete such Construction as quickly as possible, and shall promptly clean and restore the
affected portion of the Common Area on the granting Owner's Parcel to a condition which is
equal to or better than the condition which existed prior to the commencement of such
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Construction. Notwithstanding the foregoing, if a dispute exists between the contractors,
laborers, suppliers and/or others connected with such construction activities, the granting Owner
shall have the right to prohibit the contractors, laborers, suppliers and/or others working. for. an...
Owner from using the !Common Area on the granting Owner's Parcel.
In addition, each Owner hereby grants to Developer a temporary construction license and
i
easement for purposes of completing construction of those Common Area improvements
(including Utilities) as set forth in this Declaration to be constructed by Developer which have
not been completed prior to the closing of the sale of the subject Parcel to such Owner.
(iv) Indemnity. In addition to the indemnification set forth in
Section 6.3 herein, each Owner shall indemnify, defend, protect and hold Developer and the
other Owners, and their respective officers, directors, shareholders, employees and agents
hamiless for, from and against any and all causes of action, claims, liabilities, losses, costs and
expenses (including reasonable attorneys fees and court costs) and damages arising out of or
related to injury to or death of an person or damage to or destruction of an property i arising
j Y YP 5 Yp p Y(�) g
out of or resulting from any Construction activities performed by or at the request of such Owner
or its Occupants, or (ii) occurring within such Owner's Parcel during periods of Construction.
(v) Debris; Excavation. During all Construction on the Parcels, the
Owner undertaking such work shall keep the construction site and surrounding areas clean and
free of construction materials, trash and debris, and shall take appropriate precautions to protect
against' personal injury and property damage to the other Owners and their Occupants. Unless
approved or directed by Developer, with regard to excavation, and without limiting any other
provision of this Declaration, no excavation shall be made on, and no sand, gravel, soil or other
material shall be removed from, any Parcel, except in connection with the Construction of
Buildings or Irnprovements approved in the manner set forth in this Declaration, and upon
completion of any such operations, exposed openings shall be backfilled and disturbed ground
shall be graded, leveled and paved or landscaped in accordance with the approved Plans and
Specifications. Each Parcel shall, until developed, be continuously maintained free of debris and
weeds.
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SECTION 4. COMMON AREA CONSTRUCTION, USE, MAINTENANCE AND
MANAGEMENT; AND SHOPPING CENTER SIGNAGE
4.1 Description of Common Area. Once the construction of a Building is completed,
all area outside the exterior walls except Service Facilities shall become a part of the Common
Area; an Owner may later modify, alter or rebuild its Building within its Parcel, subject to the
requirements of Section 3, and provided no such rebuilding shall occur within the "No -Build
Area" and provided, further, that the rebuilding does not cause a violation of the parking
requirements in Section 2.2.
4.2 Parking Areas. Those portions of the Common Area which are constructed and
intended for parking, drive aisle and drive way areas, and access points to public streets, as
shown on the Site Plan, whether or not located on an Owner's Parcel, shall be used only for:
(a) The parking of passenger vehicles and the pedestrian and vehicular traffic
of the Owners, Occupants and their respective Permittees;
(b) The ingress and egress of any of the Owners, Occupants and their
Permittees and the vehicles thereof, to any and from any portion of the Common Area and the
Building Area and public streets adjacent to the Common Area;
(c) The movement of pedestrians and passenger vehicles of Owners,
Occupants and their Permittees between mercantile, business and professional establishments
located or to be located within Building Areas;
(d) The ingress and egress of delivery and service trucks and vehicles to and
from Building Areas or any portion thereof and the public streets adjacent to the Shopping
Center for the delivery of goods, wares or merchandise and the rendition of services to the
Owners and Occupants. Other than in designated loading areas (as designated by Developer),
the Common Area shall not at any time be used for the parking of trucks, or the loading or
unloading thereof, except for the temporary parking, loading or unloading of trucks during and in
connection with the construction or demolition of Buildings upon a Building Area, the servicing
and supplying of a Building Area which cannot be serviced and supplied from areas designated
as loading areas, the delivery or removal of trade fixtures (including signs) or the construction,
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repair or maintenance of parking area and improvements and facilities herein permitted, upon the
condition, however, that any such use. shall be confined to that which is reasonably necessary in
connection with the matters herein specified and shall be diligently and promptly.performed and
shall not interfere; with the normal business operations of, any Permittee and/or delivery or
access to, other Occupants in the Shopping Center.
(e) :! Subject to Section 4.2(d), the temporary parking or standing of trucks,
tractors, trailers and other delivery vehicles used in conjunction with the exercise of any of the
activities described in Section 4.3.
(f) Landscaping and lighting, other facilities such as mailboxes, public
telephones and benches for the comfort and convenience of Owners, Occupants and Peimittees
of the mercantile, business and professional establishments located or to be located upon
Building Areas.
(g) The installation, use, maintenance and repair of underground Utilities.
(h) Developer shall have the right to grant temporary licenses for use of parts
of the General Common Area for incidental uses such as, but not limited to, music fairs, art
shows, farmer markets, etc., so long as such use does not unreasonably interfere with the use and
operation of the General Common Area or material interference with the operations of any
business in the Shopping Center or provided, further, no such use shall be permitted in excess of
two times. in any calendar year or, longer than four. (4) consecutive days.
No Owner or Occupant shall hinder or obstruct the free movement of pedestrians and
vehicles across those portions of the Common Area which are constructed and intended for
parking, drive aisle and drive way areas, and access points to public streets, as shown on the Site
Plan whether or not located on an Owner's Parcel or on the General Common Area.
4.3 Common Areas . Located on a Parcel. Those portions of the Common Area
located on an Owner's Parcel inside the Curb Line may be used as follows:
(a) The sale of merchandise from sidewalks which are immediately adjacent
to Building Areas which use shall not unreasonably impair pedestrian access along said
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sidewalks, impede vehicular traffic flow within the Shopping Center nor diminish the number of
the parking spaces as shown on the Site Plan, and. which .sale may only be conducted after the
Occupant has obtained all necessary governmental permits and approvals at the Occupant's sole
expense and after having obtained from Developer a license for the use of such area;
(b) The storage of shopping carts and the operation of vending machines on
the sidewalks immediately adjacent to a Building, provided such storage and operation does not
unreasonably impair pedestrian access along said sidewalks, and that the Occupant thereof has
obtained all necessary governmental permits and approvals at the Occupant's sole expense and is
consistent with. the architecture and aesthetics of the Entire Property;
P Y;
(c) Outdoor dining and play areas, as approved by Developer;
(d) Such other uses as may be approved by Developer, provided no such use
shall be approved that will detract from the overall image of the Shopping Center as a first-class
commercial, mixed use center.
All the services and activities permitted within the Common Area shall be performed
with reason and judgment, in a manner commensurate with first-class shopping centers in the
region and so as not to create a nuisance or to interfere with the normal business operations of,
and customer access to, other Occupants in the Shopping Center or the serving and supplying of
the loading areas of the Building(s).
4.4 Common Area Improvements.
(a) Common Area Construction. All Common Area improvements, including
but not limited to Utilities, paving, striping, landscaping, signage, and lighting, except for
Service Facilities located within the Common Areas on a Parcel, shall be constructed by
Developer.
(b) No Impediments. The movement of pedestrians and vehicles between the
establishments located and to be located upon the Shopping Center (and to and from the public
streets) shall be unimpeded; accordingly, no building, fence, wall, or barricade shall be erected or
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maintained over or upon the General Common Area or any Parcel, except as otherwise expressly
allowed by this Declaration, and:
(i) Such as may, be necessary to protect members of the public from
construction or excavation activities;
t (ii) Light standards and appropriate landscaping, including hedges,
planters and planting boxes and edgers;
(iii) Architectural elements and other items or features which are (i)
shown on the Site�Plan, (ii) installed or approved by Developer and/or (ii) required by the City or
other governmental agencies;
(iv) Such fences on the perimeter of the Shopping Center as may be
approved by Developer or required by any government agency;
i (v) Mail boxes, public telephones, recycling center, benches, and other
public conveniences approved by Developer;
(vi) Signs as allowed herein or otherwise as approved by Developer
and the applicable governmental authorities.
(c) No Parcel Barriers. Except as specifically depicted on the Site Plan, and
except with respect to railings surrounding outside dining areas as part of a Service Facility, no
fence, division, rail or obstruction of any type or kind shall ever be placed, kept, permitted or
maintained between the properties of any Owners of any portions of the Shopping Center, or
between any subsequent division thereof, or upon or along any of the common Parcel lines of
any portion thereof.
(d) No Charges for Use. No charge, fee, toll or levy shall ever be required,
assessed or made of or received (unless imposed by a governmental agency having jurisdiction)
from any customer of any Owner or Occupant. The cost and expense of the operation,
management, maintenance, replacement and repair of the Common Area shall be borne and
discharged only as provided for in this Declaration.
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4.5 Signage. All signage in the Shopping Center shall comply with the sign program
as may be modified and approved by the City of Kalispell from time to time (the "Sign
Program").
f
(a) Pylon and Monument Sims. Developer may revise and/or supplement the
Sign Program for the Shopping Center from time to time, subject to the approval of all required
governmental authorities and provided that any Owner or Occupant with existing signage in the
Shopping Center shall not have its right to its signage interfered with by such changes unless
such change is approved by at least seventy-five percent (75%) of all Owners and such change is
at no cost to the negatively affected Owner. In the event an Owner desires to vary from the Sign
Program to accommodate the needs of a particular Occupant's exterior-sign(s), the Owner shall,
at the Owner's sole cost and expense, prepare or cause to be prepared the proposed variance
from the Sign Program. The Owner shall submit the proposed variance to Developer for
Developer's review and approval, which, to ensure aesthetic harmony and consistency within the
Shopping Center, Developer may withhold in Developer's sole and absolute discretion. If
Developer approves the proposed variance from the Sign Program, such Owner shall be entitled
to seek variance from the design criteria imposed by any applicable governmental regulation or
requirement governing exterior signs in the Shopping Center (collectively, "Government Sign
Restrictions") so that the Government Sign Restrictions will permit the Owner's proposed
variance from the Sign Program. Developer may, in its sole and absolute discretion, at such
Owner's request and expense, reasonably cooperate with such Owner in seeking such variance
from the Government Sign Restrictions.
(b) Maintenance of Multi -Tenant Signs. The multi -tenant pylon and
monument signs (which includes all utilities serving each such sign) shall be maintained by the
Developer in good, clean and first-class state of order and repair, including the prompt removal
and repainting of graffiti.
(c) Payment of Costs of Maintaining and Operating Multi -Tenant Signs. The
cost of illuminating, operating, maintaining, repairing and replacing the multi -tenant pylon and
monument signs and panels thereon shall be a Common Area Cost. Provided, however, nothing
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in this paragraph shall prohibit nor obligate Developer to seek reimbursement for such costs from
Owners whose signage is located on such pylon or monument sign.
(d) Maintenance of Individual Building Signs. All exterior Building signs
shall comply !with the Sign Program and shall be restricted to identification of the business or
service located or provided in the Building on such Parcel. All exterior Building signs shall be
maintained in good, clean and first-class state of order and repair, including. the prompt
replacement of broken, faded or damaged sign panels, the prompt replacement of bumc&out or
broken light bulbs and the prompt removal and repainting of graffiti. The cost of constructing,
installing, illuminating, operating, maintaining, repairing and replacing each exterior Building
and single -tenant monument signs shall be borne by the Owner of the Parcel on which -such sign
is located.
(e) No Other Sic;ins Permitted. There shall be no signs in the Shopping Center
except (1) as pennitted hereunder; (2) as permitted under the Sign Program; and (3) such
directional signs as are typical for common areas. Any Owner may have more restrictive signage
provisions in a lease with its Occupant than are provided for herein. No Owner shall place or
allow on its Parcel any signs advertising space or land for sale or lease, unless such sign and the
location thereof has first been approved in writing by Developer, and any such sign which is so
approved shall only be maintained for a reasonably temporary period and shall be maintained in
a first class condition and shall not block the visibility of any other signs or interfere with the
convenient use of the Common Area. Occupants may install temporary signs and banners on or
about their premises, provided the same comply with the Sign Program and applicable laws,
are removed within thirty (30) days of initial display (or promptly upon damage thereto), are kept
neat, clean and in first-class condition, and have first been approved by Developer. Any
temporary construction signage shall be removed within seven (7) days following completion of
construction. All signs for promotional events for which Developer grants a temporary license
pursuant to Section 4.2(h) shall be removed immediately upon completion of the event.
Developer shall have an easement over any Parcel to locate any permitted directional or pylon
signs as desired by Developer, provided, no such easement shall be located within the Curb Line
on any Parcel, and no such easement shall interfere with an Owner's permitted Service Facilities.
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4.6 Operations And Maintenance.
(a) Maintenance of Common Areas. Except as set forth in Section , all
of the Common Areas shall be maintained in good condition and repair by Developer. Said
maintenance shall include, without limitation, the provision of adequate lighting, water,
electricity, sweeping, gardening and landscaping, janitorial services, maintenance of recycling
center, repairs to and replacing of asphalt paving so as. to maintain a smooth and level surface,
bumpers, striping, light bulbs, light standards, sign structures and signs advertising the name of
the Shopping Center, snow removal and sprinkler systems and planting areas, any alterations,
additions or improvements required to be made to the Common Area in order to comply with
applicable govern mental laws, ordinances, miles, regulations and orders -not applicable -as of the
date Developer commences the improvements referenced in Section and any other items of
repair, replacement or maintenance that may be needed from time to time to properly maintain
and operate the Common Area. As a part of said maintenance and operation, Developer shall
obtain and maintain insurance as required by Section 8.4. Each Owner hereby grants to
Developer a permanent easement and license for access and passage over and across the
Common Area located on the Owner's Parcel, to the extent reasonably necessary for Developer
to perform its obligations under this Section 4.
4.7 Maintenance Director. Developer may, at its option, appoint an individual or
entity (herein, the "Maintenance Director") to which Developer may delegate its responsibilities
hereunder. The Maintenance Director may be an affiliate of Developer or an Owner or
Occupant. Developer shall have (and is hereby given) the full right and authority of operation,
control and maintenance of the entire Common Area (except for exclusive areas as provided
herein, which the Owners of such areas shall keep in a neat, orderly, safe and attractive
condition, commensurate with the condition of the Common Area as intended hereby), such
authority to also include the right to enact rules and regulations for the use and operation of the
Common Area, including without limitation employee parking. Each Owner hereby grants to the
Maintenance Director a license to enter upon each Parcel in the Shopping Center as reasonably
necessary to discharge its duties to operate, maintain and repair the Common Areas on its Parcel.
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nioomKrnnni P)Ql7rn c
4.8 Contracts, Fee, Records. Developer is hereby authorized to contract with third
parties (each such contract to contain a provision for cancellation upon sixty (60) days notice) for
the operation and maintenance of the Common Areas, and Developer is authorized to _pay for, on-_
behalf of the Owners of the Entire Property, all of the Common Area operating and maintenance
expenses incurred to comply with this Declaration, and charge a service charge of twelve percent
(12%) of such expenses. Developer shall not be entitled to a service charge on insurance
premiums, noni -recurring single- expenditures in excess of ten thousand dollars (which $10,000
amount shall be adjusted every five (5) years by the same percentage that the Consumer Price
Index (U.S. City Average) has increased during the same period, if any), and Utilities.
Developer shall keep accurate books and records in the State of Montana, and agrees to ' allow
each Owner to audit, upon at least ten (10) business days' written notice, at no expense to the
Developer, all records pertaining to the Conullon Area for the last two (2) years. Any such audit
or inspection may only occur at the office of Developer, and any period of such charges may
only be audited once. The audit shall be at the expense of the auditing Owner and may only be
conducted by a salaried employee of the Owner seeking the audit or by a Certified Public
Accountant which charges a flat fee or on an hourly basis, and no audit may be conducted by any
person or firm which charges a "contingency fee" or is otherwise compensated on the basis of
overbilling allegedly or actually discovered. The Owner conducting the audit shall reimburse
Developer the sum of five hundred dollars ($500) as compensation for its staff time in
responding to the audit request. If it is determined that the Owner's pro rata share of Common
Area Costs exceeds such Owner's payments, Owner shall pay the deficiency to Developer within
thirty (30) days. If it is determined that the Owner's payments exceed such Owner's pro rata
share of Common Area Costs, Owner shall receive a credit against Common Area Costs next
thereafter becoming due. No Owner shall be entitled to a credit or refund for payments of excess
Common Area Costs made more than two (2) years prior to the end of any calendar year.
4.9 P@Inent of Pro Rata Share; Audits; Annual Adjustment. The Owners shall pay to
Developer monthly, on an estimated basis, their pro rata share (as provided in Section 4.10) of all
Common Area Costs, for operation, management, repair, replacement and maintenance costs
(including service charge) with the first payment date being the first day of the month following
fifteen (15) days after the date said Common Area is open for use to the general public.
Developer shall reasonably estimate such expenses in advance for a given calendar year and bill
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the Owners for such expenses (including service charge) in equal monthly amounts. The
Developer may revise such yearly estimate based on the actual expenses being incurred, and
inform Owners'of the new estimated amount. The Owners shall pay the estimated_ monthly._
payment on the first day of each calendar month until Developer makes the annual adjustment
referred to below. Said annual adjustment shall identify each maintenance category, vendor and
amount. An annual; adjustment based on actual expenses in such calendar year shall be made by
Developer within sixty (60) days following the close of each calendar year whereby an Owner
shall receive a refund or pay any additional amount, both within ten (10) days of owner's receipt
of notice thereof (provided that Developer's failure to provide such adjustment within such 60
days shall not relieve any Owner of the duty to pay its pro rata share of such expenses).
As used herein, "Common Area Costs" means all real property taxes on the
General Common Areas, premiums and other costs of the insurance carried by Developer
pursuant to Section 8.4, security (if deemed necessary) and all other costs of owning, managing,
operating, repairing and replacing the General Common Areas, and otherwise of performing
Developer's obligations under this Declaration, including without limitation, capital expenditures
incurred by Developer for necessary replacements of Common Area improvements (such as
paving) including, at Developer's sole election, reserves therefor ("Common Area Expenses")
4.10 Pro Rata Shares. Developer shall use good faith efforts, using sound accounting
principles and practices, to allocate Common Area Costs to Phase I and Phase II or both, as
applicable.
(a) Phase I. Regardless of the Floor Area, if a movie theatre is constructed in
the Shopping Center, the Owner of the Parcel on which the movie theatre is constructed (the
"Theatre Owner") shall bear 25% of Common Area Costs. Regardless of the Floor Area, if a
hotel is constructed in the Shopping Center, the Owner of the Parcel on which the hotel is
constructed (the "Hotel Owner") shall bear eight -tenths of one percent (.8%) of Common Area
Costs for each 10 rooms or fraction thereof. The balance of Phase I Common Area Costs shall
be borne by the Owners of the remaining Parcels in Phase I after deducting payments by the
Theatre Owner and the Hotel Owner, if applicable. The pro rata share of the cost of operation,
management, repair and maintenance of the Phase I Common Area that is to be borne and paid
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monthly in accordance with Section 4.9 by the Owner of a Phase I Parcel other than the Theater
Owner and Hotel Owner shall be in the same ratio that the number of square feet of Permissible
Floor Area within such Owner's Parcel(s) bears to the total number of square feet of.Permissible-
Aggregate Building Area allowed within Phase I (excluding the Theater and the Hotel). If a
Building is damaged or destroyed from any cause, for the purpose of calculating pro rata shares
such event shall not change the number of square feet of Floor Area within the affected Parcel.
(b)` Common Area Costs for Phase II shall be borne by the Owners of Phase II
for the cost of operation, management, repair and maintenance of the Phase II Common Area and
shall be paid monthly in accordance with Section 4.9 in the same ratio that the number of square
feet of Floor Area within such Owner's Parcel(s) bears to the total- number of square- feet of
Permissible Aggregate Building Area allowed within Phase II. If a Building is damaged or
destroyed from any cause, for the purpose of calculating pro rata shares such event shall not
change the number of square feet of Floor Area within the affected Parcel excluding the Floor
Area of any Parcel on which a gas station is located. The Owner of a Parcel on which a gas
station is locatedshall be solely responsible for all Common Area Costs associated with such
Parcel, as well as general Common Area Costs which Developer reasonably believes is a benefit
to and therefore allocable to the gas station Parcel.
4.11 Damage or Destruction of Common Area. In the event any of the Common Area
is damaged or destroyed by any cause whatsoever, whether insured or uninsured, the Developer
shall repair or restore such Common Area in accordance with the provisions of this Section 4.11.
The cost to repair and restore the Common Area shall be a Common Area Cost.
4.12 Default by Owner. In the event that any Owner fails or refuses at any time to pay
its share of any of the Common Area Costs when due, then, after written demand and failure to
pay within ten (10) days after receipt of such demand, legal action may be instituted by the
Developer against the defaulting Owner for reimbursement, plus interest at the rate set forth in
Section 12.15. Any and all delinquent amounts together with said interest shall be a lien and
charge upon all of the Parcel of such defaulting Owner subject to, and junior to, and shall in no
way impair or defeat the lien or charge of, any bona fide mortgage or deed of trust upon the same
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Parcel which is recorded prior to the recording of such lien against such Parcel in the official
records of the County.
4.13 Conflict with Leases. Notwithstanding anything contained herein to the contrary,
in the event that the provisions of a particular lease between an Owner and its Occupants with
respect to the calculation, time and method of billing and payment of Common Area operating
and maintenance expenses are different from the provisions of this Declaration, the lease
provisions shall=prevail among said Owner and its Occupants, but as among the Owners, this
Declaration shall prevail.
4.14 Securit . Each Owner and Occupant is solely responsible for the security, safety
and well-being of all persons within its Building and Service Facilities. Each Owner agrees to
conduct its own independent assessment of the need for security guards or other security
measures for its, own protection, and/or the protection of its Occupants and its/their Perri ittees
and all persons coming onto its Parcel or onto the Common Area located thereon. Each Owner
and Occupant acknowledges and agrees that the Developer shall have no obligation to provide
security or policing, and shall have no responsibility or liability to the Owner, its Occupants and
its/their Permittees in connection with the provision or failure to provide security guards or
measures and hereby releases the Developer and each other Owner and Occupant individually
and collectively from any such responsibility or liability.
If an Owner or the Developer elects to provide security personnel, such Owner or the
Developer, as the case maybe, shall carry; 'or require any provider of security personnel to carry
not less than Two Million Dollars ($2,000,000.00) combined single limit commercial general
liability insurance coverage, naming all the Owners and Developer as additional insureds,
insuring against liability arising from the act or omission of such security personnel; provided
that Developer may from time to time by notice to the Owners increase the required amount of
coverage of such public liability insurance to reflect commercial standards then in effect.
Anything herein to the contrary notwithstanding, each Owner shall maintain in good
condition and repair, at its sole cost and expense, any Service Facilities located within the
Common Area on such Owner's Parcel, including but not limited to drive -through structures,
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trash enclosures, loading docks, play structures, dining facilities, and all related equipment, and
the exposed ground area.
SECTION 5. TAXES AND ASSESSMENTS
5.1 Separate Tax Parcels; Dulyto PaY. It is intended and agreed that all real estate
taxes and assessments which may be levied, assessed, or charged by any public authority against
a Parcel, or any part thereof (including the Common Area thereof), shall be paid prior to
delinquency by the respective Owner of said Parcel, subject, however, to the right of any such
Owner to contest the amount or validity of all or any part of said taxes and, assessments.
5.2 Right to Contest. In the event that any Owner shall deem any real estafe tax or
assessment (including the rate thereof or the assessed valuation of the property in question or any
other aspect thereof) to be paid by said Owner to be excessive or illegal or otherwise improper,
said Owner shall have the right, at its own cost and expense, to coiltest the same by appropriate
proceedings, and nothing contained in this Section 5.2 shall require the Owner to pay any such
real estate tax or assessment as long as (a) no other Owner's Parcel could be affected by such
failure to pay, and (b) the amount or validity thereof shall be contested in good faith. If the
failure to pay such -tax would affect any other Owner's Parcel, such other Owner shall have the
right to pay such tax and shall have a lien on the non-paying Owner's Parcel for the amount so
paid. Any such lien shall be subject to, and junior to, and shall in no way impair or defeat the
lien or charge of any bona fide mortgage or deed of trust upon the same Parcel recorded prior to
the recording of such lien in the official records of the County.
SECTION 6. SHOPPING CENTER USES
6.1 General. Except as prohibited in Section 6.2, the types of uses permitted in the
Shopping Center shall include, but not be limited to grocery and non -grocery anchored retail,
motion picture theater, hotel, restaurant, service offices (including but not limited to medical,
dental, optical, real estate, financial, insurance, title and mortgage), mercantile, business and
professional establishments and related facilities. Any restaurant may contain gaming machines,
as defined by state and local authorities, as an ancillary use to the primary restaurant use, so long
as such gaming machines do not occupy more than five percent (5%) of the constructed Floor
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Area in such restaurants and such gaming is not advertised outside the restaurant premises. All
uses in the Shopping Center must comply with all requirements imposed by the City of Kalispell.
No Parcel shall be used for anything other than purposes which may be permitted by -applicable
zoning regulations, nor shall anything be done on any Parcel which shall constitute a public
._.nuisance to the community. No overnight parking shall be permitted in the Common Area
except as required to accommodate any business which operates on a 24-hour basis. No Parcel
shall be used for anything other than purposes which may be permitted by applicable zoning
regulations, nor shall anything be done on any Parcel which shall constitute a public nuisance to
the community No sound amplification equipment shall be used by any Owner or Occupant of
the Shopping Center which produces sound audible from outside of an Occupant's space except
for drive-thru speaker audio boxes or similar devices.
6.2 Prohibited Uses. Except as provided below, no portion of the Entire Property
shall be used for the following: (a) any nuisance or obnoxious use or other use inconsistent with
the types of uses typically found in first class mixed use retail/commercial shopping centers; (b)
an adult bookstore or adult video store or other establishment engaged in the business of selling,
exhibiting or delivering pornographic, obscene or so-called "adult" material (including, without
limitation: magazines, books, movies, videos, photographs or so called "sexual toys"); (c) live
"adult" entertainment (including, without limitation, any displays or activities of a variety
involving, exhibiting or depicting sexual themes, nudity or lewd acts); provided, however, that
such prohibition shall not prohibit the sale of adult materials in compliance with applicable.Laws
and as an incidental part of a bona fide video store, such as Blockbuster or Hollywood Video, or
bona fide general interest bookstore, such as Barnes & Noble or Borders, that has an adult
section properly screened from view and with controlled access to exclude minors; (d) a so-
called "head shop"; (e) a game room or arcade (except as are incidental to the operation of other
permitted activities such as a movie theater or hotel), including video game, virtual reality or
laser tag room or facility; (f) an off-track betting parlor; (g) a pawn shop; (h) funeral home,
mortuary or crematorium; (i) a junk yard or flea market; 0) a recycling facility other than one
operated by a supermarket, or as required by law, a land fill, garbage dump or other such facility
for the dumping, disposing, incineration or reduction of garbage; (k) an auditorium, dance hall,
night club, disco or massage parlor•, (1) a bar, tavern, banquet facility or lounge, other than
incidental to, 'as part of and under the same name as a restaurant permitted hereunder; (m) a
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school, educational or training facility, (n) an amusement park, carnival or other amusement
center; (o) any industrial use; (p) the conduct of any auction; (q) any production, manufacturing,
industrial, or storage (including mini -warehouse) use of any kind or nature, except for storage__.
and/or production of products incidental to the retail sale thereof from. the Shopping Center;
(r) for the sale, display for sale, repair or storage (other than temporary parking while transacting
-business within the Shopping Center) of motor vehicles, boats, trailers, or motor homes; (s) any
establishment in which the primary business is (or is similar to) that of Dollar Tree Stores, Big
Lots or 99 Cent Clearance Centers; (t) a body shop or for the repair of motor vehicles, boats,
trailers or motor" homes, except in comnection with a business selling general merchandise which
includes the sale of automobile related items; or (u) a car wash, except in connection with the
approved use of `a Parcel as a gas station.
6.3 Hazardous Materials Use. No Owner shall use, or allow the use of, "Hazardous
Materials" (defined below) on, about, under or in its Parcel, or the Shopping Center, except as
part of the business operation conducted therein in the ordinary course as part of a first-class
shopping center in accordance with the standards of this Declaration, and then only in
accordance with all applicable laws; rules and regulations. In the event of a release in, about,
under or on. the Shopping Center, or any portion thereof, of any "Hazardous Materials" (defined
below), the Owner responsible for such release (which includes releases caused by the Owner, or
the Occupant on the Owner's Parcel, or their Permittees) shall immediately take or cause to be
taken such remedial actions as may be necessary to clean up the same in accordance with the
-requirements of all Environmental Laws. -Each Owner shall use, handle and store any Hazardous
Materials hereunder in accordance with the applicable requirements of Environmental Laws.
Each Owner shall notify the other Owners of any such release of Hazardous Materials of which it
gains knowledge or receives notice, and of any violation of Environmental Laws of which it
receives notice from any governmental agency having jurisdiction. Each Owner shall indemnify,
defend, protect and hold the other Owners harmless from and against any and all claims, actions,
proceedings, losses, suits, liabilities, damages, deficiencies, fines, penalties, costs or expense
(including without limitation sums paid in settlement of claims, reasonable attorneys' fees,
consultants' fees, investigation and laboratory fees, court costs and litigation expenses), which
arise out of or in connection with the indemnifying Owner's breach of the provisions of this
Section 6.3.
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For purposes of this Section 6.3, the following terms shall have the following meanings:
(a) "Environmental Laws" shall mean all present and future statutes, ordinances, orders, rules
and regulations of all federal, state or local governmental agencies relating to_ the_use,_.generation,._
manufacture, installation, release, discharge, storage or disposal of Hazardous Materials; and (b)
"Hazardous Materials" shall mean petroleum, petroleum products, asbestos, polychlorinated
biphenyls, radioactive materials, radon gas and any chemical, material or substance now or
hereafter defined as or included in the definition of "hazardous substances,." "hazardous wastes,"
"hazardous materials," "extremely hazardous waste," "restricted hazardous waste" or "toxic
substances," or words of similar import, under any Environmental Law, or listed or identified in,
or regulated by, any Environmental Law.
SECTION 7. = EXPRESS GRANTS OF EASEMENTS
7.1 Ingress, Egress and Parking. Each Owner, as grantor, hereby grants to each other
Owner and to its respective Occupants and Pen-nittees, for the benefit of the grantee Owner's
Parcel and the" use thereof by the grantee Owner and its Occupants and Pem-ittees, a
nonexclusive appurtenant easement for ingress and egress by vehicular and pedestrian traffic and
vehicular parking upon, over and across that portion of the Common Area located on the
grantor's Parcel(s) and improved for such purposes from time to time, except for those areas
devoted to Service Facilities or drive up or drive through customer service facilities or except as
otherwise expressly provided in this Declaration.
7.2. Utility Lines and Facilities. -
(a) Grant of Utility Easements. Each Owner, as grantor, hereby grants to the
Developer for the benefit of each Parcel belonging to the other Owners, as grantees, a
nonexclusive appurtenant easement (subject to relocation as provided below) under, through and
across the Common Area of the grantor's Parcel(s) for the operation of Utility Systems, all of
which shall initially be installed by Developer to the Curb Line on each Parcel. All such
systems, structures, mains, sewers, conduits, lines and other utilities shall be installed and
maintained below the ground level or surface of such easements except for ground mounted
electrical transformers and such other facilities as are required to be above ground by the utility
providing such service. Developer shall be responsible for the operation, maintenance, repair
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and replacement of such Utility Systems, the cost of which shall be included in Common Area
Costs unless the need for repair results from the willful misconduct or negligence of any
particular Owner or Occupant; in which event the cost of such repair shall be paid..hy.._ such
Owner (on behalf;of itself or its Occupant).
(b)' Relocation. At any time and from time to time the Owner of a Parcel shall
have the right to irelocate on its Parcel any Utility System installed pursuant to the foregoing
grant of easemnni which is then located on the land of such Owner, provided that any such
relocation: (i) shall be performed as expeditiously as reasonably possible and only after sixty
I
(60) days notice of the Owner's intention to undertake the relocation shall have been given to all
the other Owners; whose Parcels will be affected by such relocation; (ii) shall not materially
interfere with or diminish utility service to the Parcels served by the Utility System; (iii) shall not
reduce or unreasonably impair the usefulness or function of the Utility System; (iv) shall be
performed without cost or expense to the Owner or Occupant of any other Parcel; (v) shall
provide for the original and relocated area to be restored to the original specifications in a
manner harmonious with the condition and operation of the Shopping Center; and (vi) shall not
interfere with or alter the grading and drainage patterns in the Shopping Center nor interfere with
the use of any other Parcel or the business located on any other Parcel. if any such relocation
work would result in a disruption of utility service to any other Parcel or Occupant for any period
of time whatsoever during the normal business hours thereof, such work shall be scheduled for
non -business hours, at the sole cost of the Owner performing the relocation. The Owner
performing such relocation shall -provide as -built plans for all such relocated Utility Systems to
the Owners of all Parcels served by such Utility Systems within thirty (30) days after the date of
completion of such relocation.
(c) Additional Utility Easements. Each Owner agrees to grant such additional
easements as are reasonably required by any public or private utility for the purpose of providing
the utility lines and facilities described herein and allowing for the proper maintenance, repair
and replacement thereof, provided such easements are not otherwise inconsistent with the
provisions of this Declaration.
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7.3 Building_ Encroachments. Each Owner, as grantor, hereby grants to the other
Owners for the benefit of each Parcel belonging to the other Owners, as grantees, an
underground easement for footings, piers, piles, grade beams and the like which m, y__encroach
into or under the grantor's adjoining Parcel(s). The easements granted in this Section 7.3 shall
survive this Declaration and shall last so long as the encroaching Building is standing following
its initial construction or following its reconstruction where such Building is substantially
restored to its prior condition within two (2) years following a casualty or condemnation. In no
event shall anything in this Section 7.3 be construed or interpreted so as to create any easement,
license, or other right allowing encroaclunent of any Building onto another Parcel.
7.4 Continuation of Easements. Unless all of the Owners -agree otherwise irr-writing
prior to the expiration or earlier termination of this Declaration, the non-exclusive easements
granted in this Section 7 shall be perpetual and shall survive the expiration or earlier ternination
of this Declaraion and, to the -extent requested by any Owner upon the expiration or earlier
termination of; this Declaration, the Owners shall enter into and record an easement agreement
memorializing' such perpetual non-exclusive easements.
7.5 Restriction. No owner shall grant any easement for the benefit of any property
not within the Shopping Center; provided, however, that the foregoing shall not prohibit the
granting or dedicating of easements by an owner on its Parcel to governmental or quasi -
governmental authorities or to public utilities, subject to the approval of Developer which shall
not be unreasonably withheld.
SECTION 8. INSURANCE
8.1 Property Insurance on Each Parcel. At all times during the term of this
Declaration, each Owner shall, at its sole expense, continuously maintain or cause to be
continuously maintained property insurance in an amount equal to one hundred percent (100%)
of the insurable replacement cost from time to time, without a co-insurance penalty, on all
Buildings and Service Facilities located on its Parcel. Coverage must be not less than that
provided by the ISO Causes of Loss -Special Form CP1030, and shall include a sprinkler leakage
endorsement. An Owner may satisfy its obligation hereunder by causing an Occupant of its
Parcel to provide and keep in force the required insurance.
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8.2 Release and Waiver of Subro ag tion. Each Owner (the "Releasing Owner")
hereby releases and waives for itself and on behalf of its insurer any rights it may have against
Developer and each and all other Owners (the "Released Owners") from and against an liability
whether arising in contract or tort (including the active or passive negligence of the Released
Owners) for any loss or damage to any property of the Releasing Owner located upon any
portion of the Shopping Center (whether or not the party suffering the loss or damage actually
carries any insurance, recovers under any insurance or self insures the loss or damage) or which
right of recovery arises from loss of earnings or rents resulting from loss or damage to any such
property. The foregoing waiver shall extend to losses for which a Releasing Owner may have
self -insured or which are within the amount of any deductible provided for under a policy of
insurance. Each Releasing Owner shall notify its property insurer of the provisions hereof and
shall obtain therefrom, a waiver of the insurer's right of subrogation against the Released
Owners, by endorsement or otherwise. It is the intent of the Releasing Owner that with respect
to any loss from a risk of the nature referred to above, the Releasing Owner shall look solely to
its insurance companies or programs of self-insurance for recovery. However, to the extent
possible without violating any law or voiding any insurance coverage, failure to obtain such
waiver shall not affect the release herein given. If an Owner's insurer will not give such a
waiver, or will do so only with the payment of an additional fee, the Owner shall inunediately
notify the other Released Parties of such fact, who shall have the right to pay such fee in order to
obtain the waiver. Each lease and sublease for any Parcel shall contain a provision similar to the
above pursuant to which the lessee or sublessee waives its claims against the Released Parties for
loss or damage to the property of the lessee or sublessee:
8.3 Liability Insurance.
(a) At all times during the term of this Declaration, each Owner shall, at its
sole expense, continuously maintain or cause to be continuously maintained commercial general
liability insurance, with a combined single limit of at least a limit of One Million and 00/100
Dollars ($1,000,000) per occurrence and Two Million and 00/100 Dollars ($2,000,000.00)
annual aggregate, with coverage at least as broad as the standard ISO Occurrence Form CG0001,
endorsed to cover personal injury (including false arrest), bodily injury and property damage,
liability arising from the use and occupancy of its Parcel and the Owner's operations in the
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Shopping Center. Said policy limit may be adjusted from time to time to reflect commercial
standards then in effect at the election of Developer. If the use of a Parcel includes the sale of
alcoholic beverages, Owner shall also obtain or cause its Occupant to obtain for the.bejwat of all_
Owners coverage for liquor liability, or so-called "dram shop" liability, providing coverage of
not less than One Million Dollars ($1,000,000.00) on an "occurrence" basis and not on a "claims
made" basis.
(b) ! Each Owner shall, upon written request of any other Owner, furnish
certificates of such insurance or other satisfactory written evidence of such insurance at any time
during the tern hereof.
8.4 Common Area Insurance.
(a) At all times during the tern of this Declaration, the Developer shall
continuously maintain or cause to be maintained commercial general liability insurance, and
such other coverage as the Developer may deem prudent, endorsed to cover personal injury
(including false arrest), covering the Common Area and the operations of the Developer with
respect thereto. Such insurance shall afford protection to the Developer and all Owners as
additional insureds, with a combined single limit of not less than Two Million and 00/100
Dollars ($2,000,000.00) per occurrence with coverage at least as broad as the standard ISO
Occurrence Form CG0001 for death of, or bodily injury to, or personal injury to, one or more
persons. Developer shall furnish to all Owners, within thirty (30) days after issuance of the
policy and within thirty (30) days after each renewal thereof, a certificate stating that: _ (a) such
insurance is in full force and effect; (b) all Owners are designated as additional insureds; and (c)
such insurance may not be canceled or coverage reduced below the levels required to be
maintained hereunder without at least thirty (30) days prior written (ten (10) days for non-
payment) notice to Developer and the additional insureds.
Said policy limits may be adjusted from time to time to reflect commercial standards then
in effect at the election of Developer; provided, the Developer shall not in any way be liable for
any failure to adjust such limits.
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(b) The premiums for the above policy shall be apportioned among the
Owners as a Common Area Cost as set forth in Section 4.9.
8.5 Insurance for Construction. Prior to commencing any Construction activities
within the Shopping Center, each Owner shall obtain or require its contractor to obtain and
thereafter maintain so long as such Construction activity is occurring, at least the minimum
insurance coverages (as may be measured by Developer to reflect commercial standards then in
effect) set forth below:
(a) Workers' Compensation statutory limits
(b) Employers' Liability $1,000,000
(c) Conunercial General Liability and Business Auto Liability as follows:
(a) and (b) above;
(i) Bodily Injury - $1,000,000 per occurrence '
(ii) Property Damage - $1,000,000 per occurrence
(Ili) Independent Contractors Liability; same coverage as set forth in
(iv) Products/Completed Operations Coverage which shall be kept in
effect for two (2) years after completion of work;
(v) "XCU" Hazard Endorsement, if applicable;
(vi) "Broad Form" Property Damage Endorsement;
(vii) "Personal Injury" Endorsements;
(viii) "Blanket Contractual Liability" Endorsement.
If the construction activity involves the use of another Owner's Parcel (without implying
any obligation of the other Owner to consent to the same, unless this Declaration allows for such
use, and then only in accordance herewith), then such other Owner shall be named an additional
insured only under the insurance provided for in Section 8.5(c), and such insurance shall provide
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that the same shall not be canceled, or reduced in amount or coverage below the requirements of
this Declaration, without at least thirty (30) days prior written notice to the named insureds and
each additional. insured. If such insurance is canceled or expires then the constracling_ Owner
shall immediately stop all work on or use of the other Owner's Parcel until either the required
insurance is reinsf,ated or replacement insurance obtained. The foregoing insurance requirements
shall not apply to routine maintenance of the Common Area by the Developer or its agents.
8.6 Policy Form. All policies of insurance required herein shall be issued by
insurance companies with a general policy holder's rating of not less than "A-" and a financial
rating of not les's�than Class "VIII", as rated in the most current available `Best's Key Rating
Guide", and which are authorized to do business in the State of Montana. -
SECTION 9. ° DAMAGE AND DESTRUCTION
9.1 Rebuilding. If an Owner rebuilds or restores a Building on its Parcel after an
event of destr cti";on of, or damage to, the Building of such Owner, said Owner shall rebuild,
repair and restoresuch Building within the Building Area of such Parcel, and damaged Common
Area and Service Facility (with respect to Parcels permitted hereunder to have a Service Facility)
to inside the Curb Lines surrounding such Building Area to the same general appearance and
condition (or such other mamzer as approved by Developer pursuant to this Declaration), and
consistent with the requirements of this Declaration and an integrated, first-class shopping center
located in Kalispell, Montana, as existed prior to the damage or destruction or as otherwise
allowed hereunder. All other Common Areas on an Owner's Parcel shall be repaired or rebuilt
pursuant to Section 3.
9.2 Time Limit. Any Improvements or Common Area rebuilt, repaired or restored by
an Owner pursuant to this Declaration, shall be rebuilt, repaired and restored and ready for
occupancy within one (1) year from the time when the rebuilding commenced, subject, however,
to delays caused by strikes, labor difficulties, governmental restrictions on building activity, fire,
war or acts of God. Notwithstanding the foregoing, in the event that the provisions of a
particular lease between an Owner and its Occupant are different from the provisions of this
Section 9, then (a) as between such Owner and its Occupant, the lease provisions shall prevail,
and (b) as among the Owners, this Declaration shall prevail.
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9.3 Requirements. Any repair, reconstruction or replacement of any Improvements or
Common. Area performed by any Owner, pursuant to this Section 9, shall be performed in
accordance with the following requirements:
;(a) Plans and specifications therefor not previously approved for the original
Construction of any Improvements shall be approved by Developer as to exterior architectural
design, exterior construction and location of Improvements being restored, prior to the
commencement of the work of such repair, reconstruction and replacement, which approval shall
not be withheld without good and valid reason and notice thereof made in writing.
(b) Any Improvements .and Common Area being restored shall be at least of
equal quality, and at least as usable for its intended purpose, as such Improvements and Common
Area were just prior to the happening of such casualty.
9.4 tlection Not to Rebuild.
(a) In the event any Owner does not promptly rebuild and restore its damaged
Improvements in accordance with the provisions of this Section 9, such Owner shall clear its
Building Area and Common Area to the Curb Line of all debris and hazardous conditions, and
shall maintain: its Building Area and Common Area to the Curb Line in a clean, safe and
attractive condition; provided, however, that in no event shall any Owner have the right to
withdraw its Parcel or portion thereof from the Common Area, or from any easements created
and provided for hereunder, .or.be.relieyed_of any Common Area Costs as required in Section
4.9.
(b) Recapture. In the event of damage to or destruction of the Improvements
on a Parcel, or partial condemnation of a Parcel, following which the Owner fails to rebuild its
Improvements and re -open for business within eighteen (18) months following the date of such
damage or destruction or the date on which the taking occurs, Developer shall have the right to
repurchase the subject Parcel at fair market value, by giving notice to the Owner within sixty
(60) days after expiration of the eighteen -month period ("Recapture Notice"). Developer shall
notify the Owner of the Fair Market Value as determined by Developer in its Recapture Notice.
If the Owner agrees with Developer's Fair Market Value determination, Owner shall so notify
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Developer within fifteen. (15) business days after Owner's receipt of the Recapture Notice
("Notice of Agreement"). If Owner fails to deliver a Notice of Agreement within such 15-
business day period, Owner shall be deemed to have accepted Developer's determination of the
Fair Market '. Value. If Owner agrees with or is deemed to have accepted Developer's
determination of the Fair Market Value, then the closing shall occur at such price within thirty
(30) days after the end of such 15-business day period at a title company selected by Developer.
If Owner disagrees with Developer's determination of the Fair Market Value, then within such
15-day period, Owner may elect to have the Fair Market Value determined by arbitration, which
arbitration shall be conducted in accordance with.the following:
"Fair Market Value" shall mean the price for similar property in similar shopping
centers in Kalispell, Montana, with similar amenities, taking into consideration all relevant
factors, including: size and location. The arbitration shall be conducted and determined in the
City of Kalispell in accordance with the then prevailing rules of the American Arbitration
Association or its successor for arbitration of commercial disputes, except that the procedures
mandated by such rules shall be modified as follows:
(1) Owner's demand for arbitration shall be in writing and shall
specify the name and address of the person to act as the arbitrator on Owner's behalf. The
arbitrator shall be a real estate appraiser with at least five (5) years full-time commercial
appraisal experience who is familiar with the Fair Market Value of shopping center real estate in
the City of Kalispell. Failure on the part of Owner to make the timely and proper demand for
such arbitration shall constitute a waiver of the right thereto. Within ten (10) business days after
the service of the demand for arbitration, Developer shall give notice to Owner specifying the
name and address of the person designated by Developer to act as arbitrator on its behalf, which
arbitrator shall be similarly qualified. If Developer fails to notify Owner of the appointment of
its arbitrator, within or by the time specified, then the arbitrator appointed by Owner shall be the
arbitrator to determine the Fair Market Value for the Parcel.
(2) If two arbitrators are chosen pursuant to subparagraph (1) above,
the arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is
appointed and shall appoint a third arbitrator, who shall be a competent and impartial person with
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qualifications similar to those required of the first two arbitrators pursuant to subparagraph .(1)
above. If they are unable to agree upon such appointment within five (5) business days after
expiration of such ten (10) day period, the third arbitrator shall be selected by the parties
themselves. If the parties do not agree on the third arbitrator within five (5) business days after
expiration of the foregoing five (5) business day period, then either party, on behalf of both, may
request appointment of such a qualified person by the then president of the Northwest Montana
Association of Realtors. The three arbitrators shall decide the dispute, if it has not been
previously resolved, by following the procedures set forth in subparagraph (3) below. Each party
shall pay the fees and expenses of its respective arbitrator and both shall share the fees and
expenses of the third arbitrator. Attorneys' fees and expenses of counsel and of witnesses for the
respective parties shall be paid by the respective party engaging such counsel or calling such
witnesses.
(3) The Fair Market Value shall be fixed by the three arbitrators in
accordance with the following procedures. Each of the arbitrators selected by the parties shall
state, in writing, his or her determination of the Fair Market Value supported by the reasons
therefor and shall make counterpart copies for each of the other arbitrators. The arbitrators shall
arrange for a simultaneous exchange of such proposed resolutions within ten (10) business days
after appointment of the third arbitrator. If either arbitrator fails to deliver to the other arbitrators
his or her determination within such ten (10) business day period, then the determination of the
other arbitrator shall be final and binding upon the parties. The role of the third arbitrator shall
- be to select which of the two proposed resolutions most closely approximates his or her
determination of Fair Market Value. The third arbitrator shall have no right to propose a middle
ground or any modification of either of the two proposed resolutions. The resolution he or she
chooses as that most closely approximating his or her determination of the Fair Market Value
shall constitute the decision of the arbitrators and shall be final and binding upon the,parties. If
either party fails to pay its share of the fees of the third arbitrator within five (5) business days
after receipt of an invoice, or fails to execute and deliver any documents reasonably required by
the third arbitrator within five (5) business days after receipt thereof, then the Fair Market Value
shall be determined solely by the arbitrator selected by the other party.
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(4) In the event of a failure, refusal or inability of any arbitrator to act,
his or her successor shall be appointed by him or her, but in the case of the third arbitrator, his or
her successor shall be appointed in the same manner as that set forth herein with respect to the
appointment of the original third arbitrator.: The arbitrators shall attempt to decide the issue
within ten (10) business -days after the appointment of the third arbitrator. Any decision in which
the arbitrator appointed by Developer and the arbitrator appointed by Owner concur shall be
binding and conclusive -upon the parties, except that such arbitrators shall not attempt by .
themselves to mutually ascertain the Fair Market Value and any such determination, in a manner
other than that provided for in subparagraph (2) above, shall not be binding on the parties.
(5) The arbitrators shall have the right to consult experts and —
competent authorities for factual information or evidence pertaining to a determination of Fair
Market Value; but any such consultation shall be made in the presence of both parties with full
right on their part to cross-examine. The arbitrators shall render the decision and award in
writing with counterpart copies to each party. The arbitrators shall have no power to modify the
( provisions of This Section 9.4(b).
SECTION 10. THE ASSOCIATION
10.1 Formation of Association.
(a) Formation. So long as Developer owns any portion of the real estate
constituting the Shopping Center, Developer shall, have all the rights and obligations of the
Developer hereunder. Developer may assign its rights and obligations hereunder to a Developer
Affiliated Entity, . or to a Developer Assignee, in which case the assignee shall assume all the
rights and obligations of the Developer hereunder. At such time as Developer owns no portion
of the real estate constituting the Shopping Center, and has not assigned its rights and obligations
hereunder to either a Developer Affiliated Entity or to a Developer Assignee, the Association
shall automatically succeed to the rights and obligations of the Developer hereunder.
(b) General. At any time after the date of this Declaration, Developer may
cause an Association to be formed and take such steps as may be necessary or appropriate in
connection with such formation including the preparation, execution, and filing of articles of
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incorporation (the "Articles of Incorporation") and bylaws (the "Bylaws") of the Association and
the making of all other appropriate filings far the following purposes subject to the provisions of
Section 10.1(d): (i) assuming any or all of the rights and obligations of Developer under this
Declaration, and (ii) exercising any or all of the duties and powers set forth in this Declaration, in
the Articles of Incorporation and the Bylaws (hereafter, this Declaration, the Articles of
Incorporation land the Bylaws may sometimes be collectively referred to as the "Governing
s
Documents").
;(c) Corporate Name and Powers. The Association shall be incorporated as a
nonprofit mutual benefit corporation pursuant to the nonprofit corporation law .of the State of
Montana under such name as shall be selected by Developer. The duties and powers of the
Association shall be as set forth in the Governing Documents together with the general and
implied powers of a nonprofit corporation to do any and all things that a corporation organized
under the laws! of the State of Montana may lawfully do which are necessary or proper to operate
for the peace,i health, comfort, . safety and general welfare of its members (the "Members"),
i subject only to the limitations upon the exercise of such powers as are expressly set forth in the
Governing Documents.
(d) Pre -Association Powers. Notwithstanding the formation of the
Association, the Association shall have no rights or obligations hereunder unless and until the
provisions of Section 10.1(a) apply, at which time the voting rights of Members shall become
effective.
10.2 Membership. Upon succession of the Association to the rights and obligations of
Developer, as described in Section 10.1(a), every Owner shall become a member ("Member").
Thereafter, each person or entity that becomes an Owner shall thereupon become a Member.
The terms and provisions set forth in this Declaration which are binding upon all Owners are not
exclusive, and Owners shall, in addition, be subject to the terms and provisions of the Articles
and Bylaws to the extent the provisions thereof are not in conflict with this Declaration and do
not impose material obligations on the Owners other than as contemplated by this Declaration.
The membership (the "Membership") of Owners in the Association shall be appurtenant to and
may not be separated from the interest of such Owner in its Parcel. The sole qualification for
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t.
Membership in the Association shall be a party's status as Owner of a Parcel. Occupants of an
Owner and Mortgagees are not entitled to become Members unless such right is assigned to them
by the Owner of the Parcel. There shall be only one Membership attributable to each Parcel.
10.3 Transfer. The Membership in the Association held by any Owner shall not be
transferred, pledged or alienated in any way, except that Membership with respect to a particular
Parcel shall automatically be transferred to the person who shall acquire all of. an Owner's right,
title and interest in a Parcel or Parcels within the Shopping Center, and upon such acquisition,
the transferor of the Parcel or Parcels shall no longer be a Member as to the transferred Parcel or
Parcels. Any attempt to make a prolibited transfer shall be void and will not be reflected upon
the books and records of the Association. The Association shall have the right to record the
transfer upon the books of the Association without any farther action or consent by the
transferring Owner. The Association shall have the right to impose a reasonable fee on the
transferring Owner to cover the cost of documentation and clerical services incurred with respect
to the transfer of Membership interests on the books and records of the Association.
Notwithstanding any other provision of this Declaration, an Owner's right to vote shall not vest
until such transfer fee has been paid.
10.4 Voting Rights. All voting rights in the Association shall be subject to the
restrictions and limitations provided herein and the other Governing Documents.
10.5 Voting Rights of Members. As of the date that voting rights for all Members
becomeeffective in accordance with"Section 10:1(a), each Member shall be entitled to vote that
percentage of the total votes available to all Members (such total being deemed to be 100)
reflected by (a) for matters affecting all the Shopping Center, the ratio that the total Floor Area
within all Parcels owned by a Member bears to the total Floor Area of all Buildings on the Entire
Property, and (b) for matters affecting only a portion of the Shopping Center (as determined by
Parcels which will be burdened by such matters), the ratio that the total Floor Area within all
burdened Parcels owned by a Member bears to the total Floor Area of all Buildings on those
Parcels burdened by such matter at the time of the vote. Notwithstanding the foregoing, no
provision providing for the sharing of costs by the Members shall be modified or amended or any
covenants or obligations imposed by any Member without the prior written consent of each
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._ Member whose share thereof or covenant and obligation thereof would be increased by such
modification. When more than one person owns a portion of the interest in a Parcel required for
membership, all such persons collectively shall be a Member and the vote for such Parcel shall__.
be exercised as they among themselves determine, but in no event shall more votes be -cast with
respect to any Parcel than could be -cast if such Parcel were owned by only one Member. If any
Member casts a vote representing his Membership, it will thereafter be conclusively presumed
for all purposes that he was acting�with the authority and consent of all other Owners of the same
Parcel. Any votes cast in violation of this provision shall be null and void.
10.6 Approvals and Consents. Unless otherwise specifically provided in this
Declaration or the Bylaws, any provision of the Govenng Documents that requires the -vote or
written consent of the voting power of the Association shall be deemed satisfied by the
following:
(a} the vote of the specified percentage required for the particular issue on
..which the Members are voting at a meeting duly called and noticed pursuant to the provisions of
the Governing 'Documents dealing with annual or special meetings of the Members. The
denominator of such percentage must include the votes representing the Total Floor Area owned
by all Members entitled to vote at such meeting and not just reflect a percentage of those
Members present;
(b) written consents signed by the required percentage of Members as
provided it the Governing Docurrients;' and
(c) in any matter requiring the consent of the Members, but not specifically
provided for in the Governing Documents or any contract executed by the Association, a simple
majority of the voting power of Members entitled to vote on such matters shall suffice.
10.7 Duties and Powers of Association. In addition to the duties and powers
enumerated in the Governing Documents and without limiting the generality thereof, the
Association shall have the specific duties and powers of the Developer as specified in this
Declaration, including, but not limited to:
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(a) Assessments. The Association shall fix, levy, collect and enforce
Common Area Cost assessments as further described in this Declaration and assessments as
further defined in the Governing Documents.
i
(b) Common Area. The Association shall maintain, repair, replace, restore,
operate, control and manage the Common Area and all facilities, improvements and equipment
located thereon, as farther described in this Declaration, except to the extent such maintenance
has been assumed by a governmental agency or public or private utility, and except as otherwise
set forth herein.
(c) The right to appoint a "Maintenance Director" as described in Section 4.7.
(d) Insurance. The Association shall maintain such policy or policies of
insurance as required by this Declaration or as it otherwise deems necessary in its reasonable
{
good faith discretion.
(e) Payment of Expenses. The Association shall pay all expenses and
obligations incurred by the Association in the conduct of its business, including, without
limitation, all licenses, taxes or governmental charges levied or imposed against the property of
the Association.
10.8 General Corporate Powers of the Association. Without limitation on any of the
terms and provisions set forth herein, the Association through the Board shall have the power,
rights and duties provided elsewhere in this Declaration and in the Governing Documents and
those powers granted to a non-profit mutual benefit corporation pursuant to Montana law,
including, but not limited to:
(a) Acquisition of Property. The Association shall have the power to acquire
(by gift, purchase or otherwise), own, hold, improve, operate, maintain, convey, sell, lease,
transfer, dedicate for public use or otherwise dispose of real or personal property in connection
with the affairs of the Association.
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(b) Borrowing. The Association shall have the power to borrow funds to pay
costs of operation, secured by assessment revenues due for succeeding years or by assignment or
pledge of rights against delinquent Owners.
(c) Contracts. The Association shall have the power to contract for goods
and/or services for the Common Area or for the performance of any power or duty of the
Association, subject to limitations set forth elsewhere in this Declaration, the Articles or the
Bylaws. The Association's power to contract shall include, without limitation, the right to enter
into agreements; with one or more other owners' associations for the purposes described in this
Section.
(d) Dele ation. The Association shall have the power to delegate its authority
and powers to committees, officers or employees of the Association, which shall be authorized to
perform all or any designated portion of the duties and responsibilities of the Association
hereunder.
.. (e) Enforcement. The Association shall have the power to enforce this
Declaration.
(f) Variances. The Board, acting for the Association, shall have the power to
grant reasonable variances from the provisions of this Declaration in accordance with and subject
to the provisions of this Declaration.
(g) Membership Disputes. The Board may resolve all disputes concerning
Membership in the Association.
(h) Association Rules. The Board shall also have the power to adopt, amend
and repeal such rules and regulations as it deems reasonable and which are not inconsistent with
the provisions of the Governing Documents which include any prior agreements entered into
between Developer and an Owner (the "Association Rules"), and such rules and regulations shall
be binding upon Owners and Occupants of the Parcels. The Association Rules may include
guidelines interpreting the construction standards. The Association Rules may regulate the use
and enjoyment of the Common Area in a manner not inconsistent with the provisions of this
42972/0812 42
4/29/05/DMU281759.6
Declaration. Each Owner shall observe and comply with and shall cause its Occupants to
observe and comply with the Association Rules.
SECTION 11. . MORTGAGEE PROTECTION
This Declaration and the -rights, obligations, covenants conditions, restrictions and
easements hereunder shall be superior and senior to any lien placed upon any Parcel, including
the lien of any Nlortgage, but no breach of this Declaration shall defeat, render invalid, diminish
i
or impair the lien of any Mortgage made in good faith and for value. This Declaration and all of
the covenants, conditions, restrictions and easements hereunder shall be binding upon and
effective against any person or entity (including any Mortgagee) who acquires title to any Parcel,
or interest therein, by foreclosure,. trustee's sale, deed in lieu of foreclosure or otherwise.
SECTION 12. MISCELLANEOUS PROVISIONS
12.1 This Declaration shall create privity of contract and estate with and among all
Owners of all !or any part of the Entire Property and their respective heirs, executors,
administrators, successors and assigns.
12.2 Any assignment, conveyance or provision in any lease or contract made in
violation of this Declaration shall be void and may be set aside upon petition of Developer or one
or more of the Owners. All costs and expenses of any such suit or proceeding, including
attorney fees as hereinafter provided, shall be assessed against the defaulting Owner and shall
constitute a lien against its real property or the interest therein wrongfully deeded, leased,
assigned, conveyed or contracted for until paid, such lien to be effective upon the recording of
notice in the official records of the County, though any such lien shall be subordinate to any
previously recorded bona fide Mortgage covering any portion of the Entire Property, and any
purchaser at any foreclosure or trustee's sale (as well as any grantee by a deed in lieu of
foreclosure or trustee's sale) under any such Mortgage shall take title free from any such later
recorded lien, though otherwise subject to the provisions hereof.
12.3 If this Declaration provides that a consent or approval shall not be unreasonably
withheld, such consent or approval shall be granted or withheld without unreasonable delay, and,
42972/0812 43
4/29/05/DMU281759.6
i
if consent is withheld or approval not granted, the reasons. for withholding consent or approval
shall be stated with reasonable detail.
12.4 In the event that suit is brought for the enforcement of this Declarafiari or as -the_ .
result of any alleged breach, the prevailing party or parties shall be entitled to be paid court costs,
including reasonable attorney fees, by the losing party or parties including any attorney fees
incurred in executing upon or appealing any judgment.
i
12.5 In the event of any condemnation (by any duly constituted authority for a public
or quasi -public use) of all or any part of the Entire Property, the portion of the award attributable
to the value of any land within the Common Area shall be payable only to the Owner(s) thereof,
and no claim therefor shall be made by other Owners of any other portion of the Entire Property;
provided, however, that all other Owners of the Entire Property may file collateral claims with
the condemning authority over and above the value of the land taken, and provided further,
however, that the Owner of any portion of the, area so condemned shall. promptly repair and
restore the remaining portion of the area owned by such Owner as nearly as practicable to its
condition immediately prior to the condemnation without contributions from any other Owner.
12.6 The captions heading the various sections of this Declaration are for convenience
and identification only, and shall not be deemed to limit or define the contents of their respective
sections.
12.7 Each Owner shall keep, maintain, repair, manage and operate their respective
Buildings, whether occupied or unoccupied, located on its respective Parcel(s) in good and clean
order, operation, condition and repair in conformity with first-class shopping center standards,
and in such manner to establish, maintain and present, at all times, the appearance of a clean,
well -managed, attractive, well coordinated and unified operation.
12.8 Except as herein specifically provided, no rights, privileges or immunities
conferred upon Owners by this Declaration shall inure to the benefit of any Occupant or
Permittee of the Entire Property or any other third party; nor shall any Occupant or Permittee of
the Entire Property or any other third party be deemed to be a third party beneficiary of any of
the provisions contained herein.
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4/29/05/DMU281759.6
12.9 This Declaration and the application or interpretation thereof shall be governed
exclusively by its terns and by the laws of the State of Montana.
12.10 This Declaration may be executed in any number of counterparts f- the same
effect as if each party hereto had signed the same document. All counterparts shall be construed
together, and shall constitute one Declaration.
12;11 Each party hereto shall execute such other and further documents and instruments
reasonably requested by the other party to more clearly evidence and carry out the provisions of
this Declaration.
12:12 Nothing contained in this Declaration shall be deemed -or -construed, either by the
owners or by any third party, to create the relationship of principal and agent or create any
partnership, joint venture or other association between the Owners.
12:13 Nothing in this Declaration will be deemed to be a gift or dedication of any
portion of the Entire Property to the general public or for the general public or for any public
purpose whatsoever. It is the intention of the parties hereto that this Declaration will be strictly
limited to and for the purposes expressed herein.
12.14 Default.
(a) The occurrence of any one or more of the following events shall constitute
. _ a- material default and breach of this.Declaration by the non -performing Owner (the "Defaulting
Party"):
(i) The failure to make any payment required to be made hereunder
within ten (10) days of the due date, or
(ii) The failure to observe or perform any of the covenants, conditions
or obligations of this Declaration, within thirty (30) days (or if such failure cannot with due -
diligence be cured within such 30-day period, then prompt commencement of cure within such
30-day period, and diligent prosecution of cure to completion as soon as possible thereafter) after
the issuance of a notice by another owner (the "Non -Defaulting Party') specifying the nature of
the default claimed.
42972/0812 45
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_ (b) Right to Cure. The .provisions of Section 12.14(a) notwithstanding, any
Owner or Developer shall have the right to enforce the provisions of Section 6.2 of this
Declaration. The provisions of any other provisions of this Declaration may only be enforced by
Developer. ii
(c) Costs and Expenses. Costs and expenses accruing and/or assessed
pursuant to this Declaration (including pursuant to this Section 12.14) shall constitute a lien
against the interest of the Defaulting Party in the Defaulting Party's Parcel. The lien shall attach
and take effect only upon recordation of a claim of lien in the official records of the County. The
claim of lien shall include the following:
(i) The name of the lien claimant;
(ii) A statement concerning the basis for the claim of lien;
(iii) An identification of the Owner or reputed owner of the Parcel or
interest therein against which the lien is claimed;
(iv) A description of the Parcel against which the lien is claimed;
(v) A description of the work performed, if any, which has given rise
to the claim of lien and a statement itemizing the amount thereof, and
(vi) A statement that the lien is claimed pursuant to the provisions of
this Declaration, reciting the date, book and page of recordation thereof. The notice shall be duly
verified, acknowledged and contain a certificate that a copy thereof has been served upon the
Owner against whom the lien is claimed, by personal service or by mailing pursuant to
Section 13. The lien so claimed shall attach from the date of recordation solely in the amount
claimed thereby and may be enforced in any judicial proceedings allowed by law, including
without limitation, suit in the nature of a suit to foreclose a Mortgage or mechanic's lien under
the applicable provision of the law of the State of Montana.
(d) Developer shall have the right to prosecute any proceedings at law or in
equity against any Defaulting Party hereto, or any other person, violating or attempting to violate
or defaulting upon any of the provisions contained in this Declaration, and to recover damages
42972/0812 46
4/29/05/DMU281759.6
for any such violation or default. Such proceeding shall include the right to restrain by
injunction any violation or threatened violation by another of any of the terms, covenants, or
conditions of this Declaration, or to obtain a decree to compel performance of any such terms,
covenants, or conditions, it being agreed that the remedy at law for a breach of any such term,
covenant, or condition (except those, if any, requiring the payment of a liquidated sum) is not
adequate. All of :the remedies permitted or available under this Declaration or at law or in equity
-shall be cumulative and not alternative;- and invocation of any such right or remedy shall not
constitute a waiver or election of remedies with respect to any other permitted or available right
or remedy.
12.15 Any time an Owner shall not pay any sum payable hereunder to another then,
after written demand and failure to pay within ten (10) days after receipt of such demand, such
delinquent Owner shall pay interest on such amount from the due date to and including the date
such payment is received, at the lesser of:
(a) The highest rate permitted by law to be paid on such type of obligation; or
(b) Ten percent (10%).
SECTION 13. NOTICES
13.1 All notices, consents, requests, demands, approvals, waivers and other
communications desired or required to be given hereunder (referred to collectively as "notices")
shall be in writing and signed by the party so giving the notice; and shall be deemed effectively
given or served as of the date hereinafter specified: (i) on the date the notice is received or
rejected, .provided it is sent prepaid, registered or certified mail, return receipt requested, and
(ii) on the date the notice is delivered by a courier service (including Federal Express, Express
Mail, Emery or similar operation) to the address of the person to whom it is directed provided it
is sent prepaid, return receipt requested (if available)
Declaration is set forth below:
The address of each signatory to this
42972/0812 47
4/29/05/DMU281759.6
Developer:
Anyone entitled to receive notice hereunder may, from time to time, change its address for
receiving notices by giving written notice thereof in the manner outlined above, provided such
change contains a street address for personal delivery. In the event any notice using an address
provided in accordance with this Section 13.1 is returned undeliverable, such notice shall be
effective five, (5) days after being mailed to the address as shown on the most recent records of
the County Tax Assessor for the Owner's Parcel.
SECTION 14. AMENDMENT; TERM AND TERMINATION; OTHER MATTERS
14.1 Amendment or Termination. This Declaration may only be amended or
terminated by the written agreement of Developer and with respect .to any amendment which
shall have a material, negative impact upon a Parcel or the use thereof, then also the Owner of
such Parcel, or (b) Owners of seventy-five percent (75%) of the Entire Property. Any such
amendment or termination shall be effective only when duly acknowledged and recorded in the
official records of the County.
14.2 Effectiveness of Declaration. This Declaration, though executed on the date
above written, shall only be effective upon, from and after its recording in the official records of
the County.,_.
14.3 Continuation of Easements. Unless all of the Owners agree otherwise in writing
prior to the expiration or earlier termination of this Declaration, the easements granted in this
Declaration for public street access, passage between parcels, parking, utilities, building
encroachments and signage shall be perpetual and shall survive the expiration or earlier
termination of this Declaration and, to the extent requested by any Owner upon the expiration or
earlier termination of this Declaration, the Owners shall enter into and record an easement
agreement memorializing such perpetual non-exclusive easements; provided, if any of the
foregoing easements are not used and enjoyed by the dominant Parcel for a period of more than
42972/0812 48
4/29/05/DMU281759.6
one (1) year after the expiration or earlier termination of this Declaration, then such easement(s)
shall expire and be of no further force or effect.
14.4 Duration. Except as otherwise provided herein, the term of this Declaration -shall be for seventy-five (75) years from the date this Declaration is first recorded.
14.5 Breach Shall Not Permit Termination. It is expressly agreed that no breach of this
Declaration shall entitle any Owner to .terminate this Declaration.
14.6 Waiver. The failure to insist upon strict performance of any of the restrictions
contained herein shall not be deemed a waiver of any rights or remedies hereunder, and shall not
be deemed a waiver of any subsequent breach or default in the performance of any of the
restrictions contained herein by the same or any other Owner.
14.7 Severability. If any tern. or provision of this Declaration or the application of it to
any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this
Declaration or the application of such tern or provision to persons or circumstances, other than
those as to which it is invalid or unenforceable, shall not be affected thereby, and each tern and
provision of this Declaration shall be valid and shall be enforced to the extent permitted by law.
14.8 Obligation to Give Estoppel Statements. (a) Developer shall, at any time and
from time to time, in connection with the sale, lease, sale -leaseback or other transfer or the
financing or refinancing of an Owner's Parcel, deliver written notice to such Owner and/or the
proposed transferee or lender designated by such Owner certifying in writing that to the best of
the knowledge of Developer: (i) this Declaration is in full force and effect and a binding
obligation of such Owner; (ii) this Declaration has not been amended or modified, or if it has
been amended or modified, identifying the amendments and modifications; and (iii) the
requesting Owner is not in default in the performance of its obligations under this Declaration,
or, if in default, to describe therein the specific nature and details of any and all defaults.
Developer shall execute and return such certificate in writing within fifteen (15) days following
receipt of a request therefor.
(b) Upon the written request of any Owner to another Owner, such other Owner shall
certify in writing whether it has or is aware of any claims or liens against the requesting Owner
42972/0812 49
4/29/05/DMU281759.6
under the terms of this Declaration and, if so, the nature and amount of such claims and liens. If
the other Owner fails to respond within fifteen (15) days after receipt of such request the other
Owner shall be. deemed to have waived any claims or liens against the requesting Owner, provided such request in capital letters identifies this Declaration and Section and explains that
failure to respond shall result in the other Owner being estopped from raising any claim or lien
known to exist by the other Owner against the requesting Owner on or before the other Owner's
receipt of said rglquest.
14.9 Exhibits. The following exhibits are attached to this Declaration and incorporated
herein:
Exhibit A: Site Plan (showing Building Limit Lines) - --
i
Exhibit 13: Legal Description of Entire Property (Recital 1)
Exhibits �-1 through C-_: Legal Descriptions of Individual Parcels
A
i
l Exhibit Sign Program
Exhibit : Architectural Guidelines
[SIGNATURES TO FOLLOW ON NEXT PAGE]
42972/0812 50
4/29/05/DMU281759.6
IN WITNESS WHEREOF, this Declaration is executed by the parties hereto as of the
day and year first above written.
DEVELOPER
By:
Name:
Title:
42972/0812
4/29/05/DMU281759.6
51
STATE OF )
COUNTY OF )
On , before me the undersigned, a notary public; personally
appeared ,
( ) personally known to me, or
( ) proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is (are) subscribed to the within instrument and acknowledged
to me that executed the same in authorized capacity, and that by
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature
STATE OF )
COUNTY OF )
On , before me the undersigned, a notary public, personally
appeared ,
( ) personally known to me, or
tome on the basis of satisfactory evidence- -
to be the person(s) whose name(s) is (are) subscribed to the within instrument and acknowledged
to me that executed the same in authorized capacity, and that by
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature
42972/0812 52
4/29/05/DMU281759.6
TRAFFIC IMPACT STUDY
HUTTON RANCH PLAZA
Kalispell, Montana
April 29, 2005
Prepared for:
Phil and Donna Harris
Prepared by:
Morrison Maierle, Inc
2020 Grand Avenue
Billings, Montana 5.9105,
HA3919W04%011\trafficstudy04 29-05.doc
INTRODUCTION
As part of the review process, the Tri-City Planning Office has requested that a traffic
impact study be completed in accordance with local and state (Montana Department of
Transportation) requirements. The purpose of this traffic impact study is to quantify the
amount of traffic to be generated by the development known as the Hutton Ranch Plaza,
located adjacent to Highway 93 in Kalispell, Montana. This traffic impact study will assess
anticipated traffic impacts associated with the proposed development and recommend
appropriate mitigation measures for the adjacent transportation network.
PROPOSED SITE
The proposed Hutton Ranch Plaza is located in Kalispell, Montana immediately east of
Highway 93, between Grandview Drive and West Reserve Drive. The site encompasses
46.05 acres of undeveloped land. Figure 1 illustrates the proposed_ project location —
Phase 1 development will be the construction of north portion of site consisting of 153,205
I square feet of retail/commercial, a 44,650 square foot (14-screen) theatre, and a hotel.
j Phase 2 developmentwill include construction of the south portion of the site, consisting of
i - an additional 260,825 square feet of major retail and related shops. Internal circulation will
I
permit access to the 14-screen theatre, :major retail,shops, offices, and small businesses.
{ Phase -1 will provide 1,274 parking stalls while Phase 2 will accommodate an additional
'.._ 1,200 spaces. Figure 2 depicts the proposed site plan.
Phase 1 construction is anticipated to begin early spring 2006. Phase 2 construction will
follow immediately thereafter. Full site buildout is expected within a five to seven year
period.
i
STUDY AREA CONDITIONS
Study Area
The development can be expected to draw patrons from Kalispell, Columbia Falls, and
Whitefish. Lincoln, Lake, Sanders and Glacier counties also lay within the greater service
area the Kalispell commercial district. The area of significant traffic impact is viewed
primarily as the adjacent street network that would provide primary service to this facility.
These streets include Highway 93, West Reserve and Grandview Drives.
! Study Area Land Use
i Currently, the proposed site is undeveloped farmland and is zoned as County SAG10. .
Once annexed to the City of Kalispell the site will be zoned B2/PUD. A combination of land
i uses exist in the vicinity of the site including two home improvement stores, a gas
station/convenience store, miscellaneous retail, Flathead Valley Community College, and
fast food restaurants.
I
H:1BM00410111trafficstudy04_29-05.doc Page I of26
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HUTTON RANCH PLAZA PRGJECTND.
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MT FIGURENUMBER
PROPOSED SITE PLAN 2
Other than the proposed development described herein, no further development plans
in this general vicinity have been identified.
-' Site Accessibility
Highway 93 is a five -lane (center two -way -left -turn -lane) principal arterial that runs north -
south in the vicinity of the proposed site and provides primary service between the cities of
-I Kalispell and Whitefish. The 2003 Annual Average Daily Traffic (AADT) volume for this
facility, south of West Reserve Drive was 22,080 vehicles per day (Reference 1).
West Reserve Drive is located north of the proposed site and is a two-lane arterial facility.
East of Highway 93, the 2002 AADT on West Reserve Drive was 12,960 vehicles per day.
l
West of Highway 93, the AADT was 5,000 vehicles per day during this same period
(Reference 1).
Grandview Drive is a two-lane col Iectorfacility located south ofthe.proposed development.
_ .-The AADT on this facility east of Highway 93 was 2,940 vehicles per day in 2002
(Reference 1). Records for this facility west of Highway 93 were not available.
Traffic signals exist at the intersections of Highway 93 and West Reserve Drive, Highway
93 and Treeline Road (north access road to Spring Prairie development and Home
Depot/Target), and Highway 93 and Grandview Drive. Costco Wholesale plans to install
an additional traffic signal at the intersection' of Highway 93 and Hutton Ranch Road
(Costco access) this summer. This location will serve as the main access into Hutton
Ranch. Figure 3 depicts the existing street grid, intersection control, and related lane
geometry.
Both A.M. and P.M, peak hour turning movement counts were recorded at the intersections
of Highway 93 and West Reserve Drive, Highway 93 and Treeline Road, and Highway 93
and Grandview Drive on April 5, 6, & 7, 2005. These counts indicated the peak hours
occur generally between 7:30 and 8.30 AM, and 4:45 and 5:45 PM. Existing (2005) AM
and PM peak hour counts are illustrated in Figure 4. As development is soon to be
completed for both the Spring Prairie and Costco sites, additional site generated volumes
- were added to these background conditions. Site volumes were determined based upon
previous traffic impact evaluations completed for each development (Reference 2).
Existing traffic counts were factored at 1 % per annum (compound interest) to represent
background (existing) traffic conditions in 2010. Similarly, 2015 projections were made
to replicate background traffic conditions for this period. These respective background
traffic volumes are illustrated in Figures 5 and 6.
Local transit service does exist in the Kalispell vicinity. It is assumed that transit routes
will integrate service to the development. Ridership levels are not expected to
dramatically affect or reduce traffic impacts associated with the proposed development.
i
EA3919\0041011\trafficstudy04 29_05.doc Page 4 of 26
1
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EXISTING STREETS AND
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LOCATION
PROJECT NO.
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development have been added to existing volumes at
Treeline Road. Site traffic determined from Traffic
Impact Study, Spring Prairie Center, Peccia do
Associates., Nov. 2003.
2, Site troffic volumes from Costco development
have been added to exisiing volumes at Hutton Rench
Road. Site .traffic determined from Technical v $
Memorandum, Kalispell Costco, Kittelson & Associates.,
Nov. 2004. In
3. Existing counts recorded April 5-7, 205
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HR. VOLUME
HUT -TON RANCH PLAZA
EXISTING TRAFFIC VOLUMES
PROJECTNO.
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93 a"s n VALLEY
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3(B)
LEGEND
xxx(xxx)
I (
PM PEAK HR. VOLUME
FLATHEAD
AM PEAK HR. VOLUME
gg
VALLEY
C.C.
s
-oU)
�i—sfii9n)
�{
�tl 1 GRANDVIEW DR.
°(2)
25(52)
�•??r
iI(�/A�' 7F-��1I--��
IT�17
RISO
Engln..rs 2021 Grand Ave.
DRAWN BY; AIUG
HUiiON RANCH PLAZA
s�
�;';Surv.yors
�
�r\l
MAIERLE)INC.Fax:(405)656.3432
BIIFn9s� MT 59102.
CNMD. BY: RA9
RA8
KALISPELLk
NITyy7�T('1Ph...:(406)666.6000APPR.BY:
APROJECTMOl
DATE: 4129705
An C.ploy--O,,—d C—p.ny
,,,,,,,Bo,,,�,�,��„�. �„
2015 BACKGROUND TRAFFICHn3
919100410111TRAFFIC 20158KGRND.dwg Api 2005
Proposed Street System
Under Phase 1 conditions, the proposed exterior street system will initially remain much the
same as currently exists. Three accesses to the.development are proposed on Highway__
93. The primary access, known for purposes of this report as Hutton Ranch Road, will be
signalized and is located at approximately at the midway point of the 46.05 acre site.
South and/or north of this intersection, a stop controlled right-tum only access is also
planned. These access locations would reduce right turn volumes at Hutton Ranch Road
and facilitate right turn egress movements from the planned parking facility.
The developerforthe Hutton Ranch site is also discussing options with FVCC to connect a
southerly access road to the campus circulation road and ultimately tie to Highway 93 at
the existing location. It is anticipated that combined traffic from both the college and the
Hutton Ranch site will warrant the need for a traffic signal at this location.
Northbound right turn auxiliary lanes are planned adjacentto Hutton Ranch within the limits
of the various access locations to accommodate these maneuvers. Figure 7 illustrates the
proposed lane geometry on Highway�93 adjacent to the development. Internal circulation
will be facilitated via a connector road intersecting Hutton Ranch Road. A series of parking
access aisles will provide access to the connector road.
The Kalispell Bypass (KBP) is planned in the near future. This facility will provide an
additional north -south route west of existing Highway 93, from,West Reserve Drive to south
of the central business district. A connector road from existing Highway 93, at Hutton
Ranch Road, to West Reserve Drive is planned. A connection from Hutton Ranch Road,
east of the proposed site, to West Reserve Drive is also being considered (Reference 3).
The KBP is expected to significantly relieve congestion within the existing Highway 93
corridor. For purposes of this report, Phase 2 conditions have been evaluated under this
planned scenario.
PROJECTED TRAFFIC
As noted previously, the project will be developed in two distinct phases. In order to
assess impacts of each phase, two separate traffic scenarios were reviewed.
i Trip Generation
A trip generation analysis was completed in accordance with nationally recognized
procedures and data referenced in Trip Generation, 71h Edition, Institute of Transportation
Engineers (1TE), 2003 (Reference 4). The information in this document has been obtained
from the research and experiences of transportation engineering and planning
professionals and serves as a tool in estimating the number of vehicle trips generated by a
wide variety of proposed land uses. AM Peak Hour, PM Peak Hour and Daily traffic
generation totals were computed based upon land uses consistentwith the proposed plan.
i
t
H:\3919\004\011\trafficstudy04_29_05.doc Page 9 of26
TREELINE ROAD \
I w
O
W
I N
m I
O I
J
To LOWES -_4� TO TARGET
I
HUTTON RANCH ROAD
x
11
O
1
I
I I�
II
ICI
EV.C.C,
II
MORRISON �"�'"°°" 20RD Giand Ave. DRAWN BY: Mir HUTTON RANCH PLAZA PROJECT NO,
1 BII9n9s, MT 5910z
Surveyors CHK'D. BY: RAB 3919.00d.011
TF armnu,t, KALISPELL MT
MATERLE)INC, PJannen PFax E(4I00j O56 432� APPR. BY. RAB FIGURE NUMBER
An Gmp/oym-0smed Compuny DATE: 4129105
COPYA�GHia1n0AN5bNIWEALE,IIY., 1005 HIGHWAY 93 LANE CONFIGURATION 7
H:13919100410111HW Y 93 LANE GEOMEfRYAVII Ay/30ROD5
Due to the large variation in data size for shopping centers, the fitted curve equations, as
published in the Trip Generation Manual, were used rather than the average rates.
Additionally, the independent variable (1000 sq. feet gross leasable area) was calculated
utilizing the total of the various retail land uses, as the peripheral buildings are considered
i a portion of this single shopping center land use. These trip generation computations are
presented in the following pages in Tables 1 and 2.
As is evident, Phase 1 is estimated to generate approximately 10,792 daily trips, while
Phase 2 is expected to generate an additional 1,0,608 daily trips. At full buildout the
development can be expected to generate approximately 21,400 daily trips.
Trip Distribution
Trip distribution for the development is based on population distribution within the general
vicinity. These values are indicated as follows:
➢ 55% from/to the south on Highway 93
➢ 25% from/to the north on Highway 93
i - - ➢ 15% from/to the east on West Reserve Drive
➢'_5% from/to the west on West Reserve Drive'
A distribution to Grandview/Four Mile Drive was not made as this is expected to be
negligible.
Pass -By and Capture Traffic
An occurrence referred to as pass -by trips is documented for various land uses in the Trip
Generation Manual, 5u' Edition, Institute of Transportation Engineers, 1991 (Reference 5).
This reference states, "pass -by trips are trips made as intermediate stops on the way from
an origin to a primary destination. Pass -by trips are attracted from traffic passing a
particular site on an adjacent street that contains direct access to the generator. The pass-
bytrips estimated to enter and exit the site do not effect the driveway volumes but do affect
the amount of traffic added to the adjacent street system." Pass -by trip data for shopping
centers is quite variable. Figures VIIAA and VII-1 B from the Trip Generation Manual, 5
Edition were utilized. Based on these figures, a value of 30% pass -by trips was assumed. '
The pass -by assignment was made only along Highway 93, with 55% distributed to the
north and 45% to the south. This reduction is applied to the through movements at each I
intersection on Highway 93.
Capture traffic is typically associated with multi -use developments (i.e. residential, office,
retail, etc.). Internal traffic capture suggests trips are made internal to a development (Le,
residential to retail) without these trips appearing on the external street network. Some
internal capture traffic can be expected with a commercial development; however, due to
the relatively homogenous make-up of the proposed land use, effects are expected to be
H:\3919\004\011\trafficstudyD4-29—OS.doe
Page 11 of 26
r
ILITTON RANCH PLAZA - PHASE 1
KALISPELL, MT
ABLE 1
rip Generation Worksheet
Mar-05
WEEKDAY ,4 c
ITE
WKDAY WKDAY
LAND USE
CODE SIZE
UNIT
RATE
TOTAL
Major Comm'l - North
820 92:555
1000 SF
41.30
3823
Pad A
820 5.8
1000 SF
41.30
240
Pad S
820 4.55
1000 SF
41.30
188
Pad C
820 8.1
1000 SF
41.30
335
Pad D
820 12
1000 SF
41.30
496
Pad E
820 12
1000 SF
41.30
496
Shops
820 18.2
1000 SF
41.30
752
Subtotal Retail
153.205
Hotel
310 140
Rooms
8.17
1144
Movie Theatre
445 14
MS**
292.50
4095
'* MS = Movie Screens
TOTAL TRIPS
11,566
internal Trips
774
NET NEW TRIPS
10,792
Pass -By Trips
3470
ITE AM AM AM AM AM AN
LAND USE CODE SIZE UNIT RATE ENTER °/ 'EXIT °% TOTAL ENTER EXIT
Major Comm'I - North
820
92.555
1000 SF
0.89
61%
139%
82
50
32
Pad A
820
5.8
1000 SF
0.89
61%
39%
5
3
2
Pad B
820
4.55
1000 SF
0.89
61%
39%
4
2
2
Pad C
820
8.1
1000 SF
0.89
61%
39%
7
4
3
Pad D
820
12
1000 SF
0.89
61%
39°%
11
7
4
Pad E
820
12
1000 SF
UP
61%
39°%
11
7
4
Shops
320
18.2
1000 SF
0.89
61%
39%
16
10
5
Subtotal Retail
153.205
Hotel
310
140
Rooms
0.55
61%
39%
78
48
31
Movie Theatre
445
14
MS**
N/A
MS
= Movie Screens
TOTAL TRIPS
215
131
84
Internal Trips
12
8
5
NET NEW TRIPS
202
123
79
Pass -By Trips
64
39
25
_` y PM
ITE PM PM PM PM PM PM
LAND USE CODE SIZE UNIT RATE ENTER % EXIT °% TOTAL ENTER EXIT
Major Comm'I - North
820
92.555
1000 SF
3.86
4B°%
62°%
357
171
186
Pad A
820
5.8
1000 SF
3.86
48%
52%
22
11
12
Pad B
820
4.55
1000 SF
3.86
48%
52°%
18
8
9
Pad C
820
8.1
1000 SF
3.86
48%
52%
31
15
16
Pad D
820
12
1000 SF
3.86
48%
52%
46
22
24
Pad E
820
12
1000 SF
3.85
48°%
52%
46
22
24
Shops
820
.18.2
1000 SF
3.86
48%
52%
70
34
37
Subtotal Retail
153.205
MS
= Movie
Screens
Hotel
310
140
Rooms
0.59
53%
47%
83
44
39
Movie Theatre
445
14
MS**
13.64
45 %
55 %
191
86
105
TOTAL TRIPS
865
414
451
Internal Trips
51
24
27
NET NEW TRIPS
814
389
425
Pass -By Trips
259
124
135
HUTTON RANCH PLAZA - PHASE 2
KALISPELL, MT
TABLE 2
Trip Generation Worksheet
Mar-05
1TE
WKDAY WKDAY
LAND USE CODE SIZE
UNIT
RATE
TOTAL
--I Major Comml-North 820 92.555
1000SF
41.30
3823
Major Comm'I - South 020 220A25
10DD SF
41.30
9125
Pad A B20 5.8
iODO SF
41.30
240
Pad 8 820 4.55
_ 10DO SF
41.30
188
• I Pad C 920 8.1
1000 SF
41:30
335
• .. Pad D - 020 - 12
1000 SF
41.30
495
Pad E 820- 12
IWOSF
41.30
495
Pad F 820 8.1
1000 SF
41.30
335
Pad G B20 12
11 ODD SF
41.30
490
Pad H B20 4.5
10DOSF
41.30
186
Pad 1 820 5.4
10DO SF
41.30
223
Pad J 820 6A
1000 SF
41.30
223
' Pad K 820 4.5
10DO SF
41.30
186
' Shops 020 18.2
1000 SF
41.30
762
' Sublotal Retall 414.03
• Hotel 310 140
Rooms
8.17
1144
- Movie TheaB•e 445 - 14 -
MS"
292.50
4095
MS = Movie Screens
TOTAL TRIPS
22,339
Internal Trips '„
939
NET NEW TRIPS y
21,400
- Pass•By Trips -
-
6702
AMIPEAK;HOVR
rr:
AM
AM
AM
AM
AM
AM
LAND USE
CODE
SIZE
UNrr
RATE
ENTER %
EAT %
TOTAL
ENTER
EXIT
I
.... ..
'Major Comml - North
; 820
'_ 92.555
1000SF
0.09
61%
39%
82
5o
32
I
- Major Comm'i-South
820
220.925
1000SF
0.89
61%
39%
190
119
70
'
Pad A-._,. '
B20
5.8
10008F
0.69
01%
39%
5
3
2
' -'---
Pad 0
820
4.55
1ODD SF
0.89
61%
39%
4
2
2
{g:
Pad C
820
8.1
1000SF
0.89
61%
39%
7
4
3
. •--_..
Pad D _
820
_.12
1DODSF
0.89
61%
39%
11
6
4
-`
Pad E
820
12
100DSF
0,119
fit%
39%
11
5
4
•
Pad F
820
8.1
1000SF
0.89
61%
39%
7
4
3
'
Pad G
020
12
1DOOSF
0.89
81%
39%
11
5
4
Pad H
82D
4.5
1000SF
0.89
61%
39%
4
2
2
Pad 1
U20
5.4
1DDO SF
0.89
61%
39%
5
3
2
Pad J
820
5.4
1000 SF
0.89
61Y.
39%
5
3
2
'Pad 'K _.:- "-'
_820'`
4.6 ".
1000 SF`
0.89
61%
39%
4
2
2
.,
Shops
820
18.2
1DOD SF
0.89
fit%
39%
16
10
6
Subtotal Retail
414.D3
Hotel
310
140
Rooms
0.56
61%
3!)%
78
48
31
Movie Theatre
445
14
MS"
NIA
MS = Movie Screens
TOTAL TRIPS
445
272
174
Internal Trips
16
10
6
NET NEW TRIPS
430
262
168
Pass -By Trips
134
82
52
is r HS7,VR'` � '�
+ ;`,:;. _,5 ,:_,,_,
..
`...�,r ,:.
P_M`.PEAK
..: _ :.:,
1,.i�f
..:
• �t
ITE
PM
PM
PM
PM
PM
PM
LAND USE
CODE
SIZE
UNIT
RATE
ENTER %
•EMT %
TOTAL
ENTER
EXIT
Major Commi-North
820
92.555
1000 SF
3,86
48%
5z%
357
172
150
Major Comml - South
820
220.925
1ODD SF
3.86
48%
52%
853
410
444
Pad A
820
6.8
iODDSF
3.06
48%
52%
22
11
12
Pad B
820
4.55
100D SF
3.86
48%
52%
18
8
9
Pad C
B20
8,1
1000 SF
3.86
48%
62%
31
16
i6
Pad D
82D
12
1000 SF
3.86
48%
52%
46
22
24
Pad E
820
12
IODO SF
3.80
48%
5211.
48
22
24
Pad F
820
8.1
100D SF
3.86
48%•
52%
31
15
16
Pad G
820
12
IODOSF
3.86
48%
52%
46
22
24
Pad H
820
4.5
1000 SF
3.86
48%
52%
17
8
9
Pad 1
820
5.4
1000 SF
3.86
48%
52%
21
10
11
Pad J
02D
5.4
1DOD SF
3.00
48%
52%
21
10
11
Pad K
820
4.5
1000 SF
3.86
48%
52%
17
8
9
Shops
820
18.2
1DODSF
3.80
48%
52%
70
34
37
Subtotal Ra1a11
414.03
MS
= Movie Screens
Hole?
310
140
Rooms
0.59
53%
47%
83
44
39
Movie Theatre
445
14
MS..
13.64
45%
55%
191
86
105
TOTALTRIPS
1873
897
975
Internal Trips
152
73
79
NET NEW TRIPS
1721
825
896
Pass -By Trips
562
269
293
,
minimal. A conservative estimate of 10% was assumed in this regard. This reduction is
applied to the total trips forecasted.
Trip Assignment
Based on the preceding discussion, a trip assignment was made for the proposed
development under AM and PM peak hour traffic conditions for Phase 1 and Phase 2
development scenarios. These site traffic assignments are illustrated in Figures 8 and 9.
Total Traffic
Total traffic for each phase was computed by adding the projected 2010 and 2015
background traffic with the total site traffic assignment generated under Phase 1 and
Phase 2.
To account for the effects of the KBP, a further refinement of the 2015 traffic volumes is
justified. The Traffic Forecasting Report for the. Kalispell Bypass, March 2005 was
reviewed in making these adjustment assumptions (Reference -6). As the KBP is
implemented, Highway 93 corridor traffic movements will be distributed amongst both the
existing Highway 93 and the KBP. This will directly influence conditions typically observed
under current Highway 93 conditions. Northbound and southbound projected volumes for
Highway 93 as developed for purposes of this report were compared to the 2015 forecast
volume of 26,000 vpd anticipated under operation of the KBP. Typically, the 2015 forecast
produced herein exceeded volumes presented in the Traffic Forecasting Report. To more
closely replicate 2015 projections, northbound and southbound traffic movements were
factored by 85%. - Eastbound and west bound movements were maintained, using an
anticipated distribution forthe KBP. Volumes at Highway 93 and West Reserve Drive were
not factored in this regard.
The resultant total traffic conditions for AM and PM peak hours under Phase 1 and Phase
2 scenarios are depicted on Figures 10 and11.
TRAFFIC ANALYSIS
iCapacity and Level -of -Service
A review of traffic operations, in accordance with current Highway Capacity Manual
(Reference 7) procedures was conducted to evaluate both existing and proposed traffic
conditions. Two analysis types were performed in order to evaluate the proposed traffic
scenarios and their related effects. These HCM evaluations include:
➢ Signalized Intersections (operations mode)
➢ Unsignalized Intersections (operations mode)
Level -of -service (LOS) at unsignalized and signalized intersections is quantified in terms of
delay. The computation of delay is a fairly complex. Factors such as travel time, driver
discomfort, gaps in the traffic stream, congestion, and vehicle speed are considered. In
general LOS results range from LOS A to LOS F, where LOS A represents the least delay
H:\3919\004\011\traMcstudy04 29_05.doc Page M of 26
—t9(se) W RFSFRVF DR-
LOCATION
LEGEND
xxx(xxx)
— PM PEAK HR. VOLUME
BEAD AM PEAK HR. VOLUME
93
VALLEY
C.C.
:i
a
i
GRANDVIEW DR.
MORRISON
L Y
MAIERLE, INC.
An Employaa-0—d Company
Enyrneors 2020 GryndAve.
Billings, MT 59102
Surveyors
sde�nsr: Phone: 405B5B•0000
P,enna (t II
Fax: 406 956.3432
aaT'auHl> uo 1ncO11ak�EaiE. iNc,
DRAWN BY: l
CHK'D. BY: RAB
APPDA M, RAB
DATE. 4/2910�
KALISPELL
H:13919100410111TRAPRC 2010 SITE.dwg Aprl2912005
HUTTON RANCH PLAZA
2010 SITE TRAFFIC
(Phase 1)
PROJECT NO.
3919.004.011
FIGURE NUMBER
8
0
`.L
W. RESERVE DR.
1`
Y
w 11
w
ow
_m 11
- 11
N 1 ,
TREELINE RD.
II L]
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TO
.:> KBP -
'. . _ - / � � ,• o'er
I HUTTON RANCH RD.
ECT LOCATION
d PEAK HR. VOLUME
K HR. VOLUME
93 VALLEY
C. C.
-1� GRANDVIEW DR.
N_
�i
MORRISON
EnDlnerrs 2020S, MT 910
BUMPS, MT
DRAWN BY: PMI
kUITON RANCH PLAZA
PROJECTNO,
3919.004.071
syoura
CHMD. BY: RAe
KALISPELL
MT
7
1 1 MAIERLE3 INC.
selanllsfe Phon:(405)656-5000
PIa^^°rs Far(A06) 656.0432
APPR.BY: RAg
FIGURENUMBER
DATE: 41291DS
2015 SITE TRAFFIC
Al Cmpl°y—O—dC—p°ny
M.,N.,m
(Phase 2)
9
HA391 MD901 i1TRAFFIC 2015 SITE-BP,&q Apd2912005
N
n
Jl�
42(25)
205(111)-
24D(134)
75(107)
115(2DB)
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,7\1-4N �`
4(127
LEGEND
xxx(xxx)
/
PM PEAK HR. VOLUME
8 FLATHEAD
g
��—
AM PEAK HR. VOLUME
93 $ VALLEY
"$
C.C,
s
34(20
�— 54(94)
GRANDVIEW DR.
9(24)�� 1
I( 5(5)----
_
24(49)
N N
�
MoRRISON
2B20GraT W0
&gw
BlYings, MT 59102
BRAWN BY; PMI
HUTTON RANCH PLAZA
919.004.011
�919.004.01'l
S."Y1rs
S�rvryois
CHK'O. BY: RAB
KALISPELL
MT
uA 11 MAIERLE INC.
smW411:1:
Plan— PFax(06) 65634320
APPRao
FIGURE NUMBER
)
DATE,BY:
ATE: 4129105
2010 TOTAL TRAFFIC
An Emp! Ke-LTvnetl Cm6p4ny
tDPYRA:Hh
(Phase 1)
1
H3391910B41BIATRAFFIG 2010 TOTALdoD ApU2912005
[�127(21 9) __705(848)
�— 499(517) W. RESERVE DR.—39024)
4s(30)—/ / 732(793) -- N
226(117)- 11 2.020)�
�, 11
10(29)
so 111
38(196) .'
/•, I -1 TREELINE RD. I
9(32) --
10
36(99) .�` 1 1
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Y
r 8
3
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45iao)
HUTTON RANCH RD.
f: gym'
93
0
r� N
N
JIB
GRANDVIEW DR.
s(s) —
25(52)
' C°9r°B8rs 2020 Grad Ave. DRAWN BY: P611
MT 59102
M ORRIS ON B,--
Surveyor° CHK'0. BY.' —HAD
��1 4� sal°anslr KALISPELL
W(�,( MATERLE2INC, PrO��Bm PFax: (4(06)406) 6 634320 �PGATE: !129105
A. Cmpl°ytt-O—d C°mp°°y
HUTTON RANCH PLAZA
2015 TOTAL TRAFFIC
(Phase 2)
EJECT LOCATION
PM PEAK HR. VOLUME
AK HR. VOLUME
PROJECTNO.
3919.004.011
MT
FIGURENUMBER
11
and most favorable conditions and LOS F represents significant delay and very poor or
unacceptable conditions. New facilities typically strive for LOS C under long-term
design conditions. If analysis reveals that an existing intersection is operating at less._._
than LOS C conditions, additional traffic impacts should be mitigated at least to the
current LOS condition.
A. Signalized and Unsignalized Intersection Analysis
Analysis .was conducted for existing traffic conditions, as well as, those forecast under
Phase 1 and Phase 2 development scenarios. The�following tables provide a -summary of
LOS results and associated delay (in seconds) for the AM and PM peak hour conditions.
Table 3 — Existina (2005) Traf is Analvsis Sumrnary
'INTERSECTION _
AM PEAK HOUR
PM PEAK HOUR
DELAY
LOS
DELAY
LOS
Hwy 93/Reserve Dr
26.9
C
- 23.6
-C
H 93/Treeline Rd
12.1
: B
23.7
C
Ranch Rd *
17.7
B
18.9
B
t93/Hutton
931Grandview Dr
6.1
= A
11.4
B
-- -*includes Spring Prairie/Costco development site traffic - -
Table 4 —2010 Background Traffic Analvsis Summary
-
INTERSECTION
AM PEAK HOUR
PM PEAK HOUR
DELAY
LOS
DELAY
LOS
Hwy 93/Reserve Dr
27.5
C
24.4
C
Hwy 931-I reeline Rd *
12.4
B
24.8
C
Hwy 93/Hutton Ranch Rd *
18.5
B
19.8
B
Hwy 93/Grandview Dr
6.3
A
11.8
B
"includes Spring Prairie/Costco development site traffic
The previous results indicate that the existing study area intersections will operate at
acceptable levels through 2010 without the impacts of the Hutton Ranch development
The following tables summarize results with the influence of Phase 1 and Phase 2 Hutton
Ranch site traffic. Applicable mitigation measures are discussed in the summary following
each table.
Tnhla s — 2nin Total Traffic Analvsis S1jmmary
INTERSECTION
AM PEAK HOUR
PM PEAK HOUR
DELAY
LOS
DELAY
LOS
Hwy 93/Reserve Dr
27.2
C
27.3
C
Hwy 93/Treeline Rd
13.3
B
27.7
C
Hwy 93/Hutton Ranch Rd
18.8
B
31.3
C
Hwy 93/FVCC Access
9.8
A
15.4
B
Hwy 93/Grandview Dr
6.4
A
13.6
B
HA3919\004\0l 1ltrafficstudy04_29-05.doc
Page 19 of 26
Mitigation Summary —
An additional westbound approach leg was added at the intersection of Highway 93 and
Hutton Ranch Road to accommodate development access. This approach should initially -
consist of a single left turn lane and a combined thru/right turn lane. Additionally a
southbound left turn lane and a northbound rightiurn lane are programmed on Highway 93
at this location.
The connection to.FV.CC will combine Hutton Ranch development and college traffic at the
currently stop -controlled access location. Trafficwolumeswill likely warrant the installation
of a traffic signal. Initially, the westbound approach should consist of a single approach
lane serving both left and right turning traffic.
Minor signal timing adjustments were made at: most intersection locations to optimize
volume -to capacity (v/c)ratios_of the critical lane movements and minimize corresponding
delay. -
Table 6 — 2015 Total Traffic Analysis Summary
AM PEAK HOUR PM PEAK HOUR
FINTERSECTION DELAY LOS DELAY LOS
Hwy 93/Reserve Dr
28.2
C
26.0
C
Hwy 93/Treeline Rd
9.2
A
19.7
B
H 98/Hutton Kanch Kd 21.6 C 29.8 C
Hwy 93/FVCC Access 8.7 A 12.2 B
Hwy 93/Grandview Dr 11.2 B 11.6 B
W Reserve Dr/Frontage Rd 9.6/15.2 A/C 10.7122.9 B/C
Mitigation Summary
Implementation of the KBP will enhance traffic operations on existing Highway 93 as
demonstrated by the above analysis. Overall, traffic operations are expected to exhibit less
delay and improved LOS under this design year scenario, as compared to the 2010
evaluation.
An additional westbound through lane was added at the intersection of Highway 93 and
Hutton Ranch Road to facilitate heavier through movements bound for the KBP via the
proposed West Reserve connector.
The south approach to the West Reserve Drive via the proposed Frontage Road is planned
in conjunction with the KBP. This analysis assumes a shared left/right turn lane will be
constructed at the approach. It may, however, be prudent to tie this approach to a revised
access configuration for Home Depot. Currently, two access locations for Home Depot
exist on West Reserve Drive, west of the proposed frontage Road intersection.
Again, minor signal timing adjustments were made at most intersection locations to
optimize volume to capacity (v/c) ratios of the critical lane movements and minimize
corresponding delay.
H:\3919\004\01 Nraffcstudy04_29_O5.doc Page 20 or26
The proposed street and traffic control plan, encompassing these improvements, is
indicated on Figure 12.
An additional evaluation was conducted undorthe scenario that the KBP is not constructed
under the 2015 design horizon. 2015 site and total traffic volumes, under this condition,
are illustrated in Figures 13 and 14 respectively. The following table depicts these results:
Tahle 6 — 2015 Total Traffic.Analvsis Summary without the Kalispell Bvpass
INTERSECTION
AM PEAK HOUR
PM PEAK HOUR
DELAY
LOS
DELAY
LOS
Hwy 93/Reserve Dr
27.6
C
36.7
D
Hwy 93/Spring Prairie Rd
9.2
A
38.0
D
Hwy 93/Hutton Ranch Rd
14.7
B
67.5
E
,,Hwy 93/17VCC Access
6.3
A
_ 21.2
C
Hwy 93/Grandview Dr
6.0
A
11.6
B
Under PM peak hour conditions many traffic movements are functioning at, or near
capacity and poor LOS conditions result. Should construction of the KBP be delayed for
any reason, short-term mitigation measures may be necessary. A heavy concentration of
southbound left turn maneuvers at Hutton Ranch'Road may induce the need for a dual left
turn lane into the site. _However, in the event of a delay, it may not be prudent to
significantly improve existing Highway 93 to meet 2015 traffic demands if implementation of
the KBP is imminent.
Speed Considerations and Traffic Safety
The speed limit on Highway 93 in the vicinity of the proposed development is 55 mph. This
speed is considered excessive forthe level of development proposed and associated traffic
operations. Upon further development, a speed study could confirm an appropriate posted
speed limit for this area. It is anticipated that the maximum speed under full development
conditions would be 45 mph.
Current site distance in this corridor is predominantly unconstrained. A Policy on
Geometric Design of Highways and Streets, 4 Edition, AASHTO, 2001 (Reference 8)
identifies "sight distance (requirements) sufficient for a stopped vehicle on a minor road
approach to depart from the intersection and enter or cross the major road. Departure
sight triangles should be provided in each quadrant of each intersection approach
controlled by a stop sign." It is anticipated that Highway 93 ultimately would be signed with
a speed limit of no more than 45 mph in the vicinity of the proposed development. In this
case the desirable sight distance at stop controlled intersections would be approximately
450 to 500 feet in either direction from a point approximately 15 feet from the edge of the
major road travel way. As development occurs, attention to potential sight distance
obstructions should be noted. This may include buildings, parked vehicles, landscaping,
fences, signs, etc. Generally items within the site triangle and in excess of 3.5 feet would
I constitute an obstruction.
{
,C
Ha39191004\O11\traf CStudy04 29_05.doc Page21 of26
l �
W. RESERVE DR.
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-
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// - 11
TREELIKE RD. ` I
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o
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'LANE CONFIGURATION WITH \\ PROJECT LOCATION
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AND KALISPELL BYPASS
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FLATHEAD
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GRAND VIEW DR.
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DATE: A129M PROPOSED STREETS AND
An 6mploycc-Owned Cempony cmmmm umm�awweninwc_ :ws TRAFFIC CONTROL
12
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s {{---
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n
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PROJECT LOCATION
LEGEND
xxx(xxx)
��— PM PEAK HR. VOLUME
AM PEAK HR. VOLUME
gg VALLEY
C.C.
GRANDVIEW DR.
i
+? 2020Giand Ava. DRAWN BY: PMI
MORRISON fn9lneers HUTTON RANCH PLAZA
BlNnga, ldT 59192
survoyorr CHR'D. BY: RAB
KALISPEL•L
0 1 Plana: (406) 656-6000 APpR. BY: RA9
A.IERLE INC. P,a�na� Pax: 1406) 656.3432
An Employce-OrvnedC pony DATE: 4129105 2015 SITE TRAFFIC
EaPYPIGHI� ngiPJ5�Nd1UEA!EIhL ]Yh (Phase 2) W/O KALISPELL BYPASS
H:13919100410111TRAFFlC 20IS SITEdwg Aptl2912005
PROJECTNO,
3919.004.011
MT FIGURE NUMBER
13
42(30)
205(117)-
258(182)
115(541)
dBt(841)
W. RESERVE DR.
111
� n m
n
Lt1 {—
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ow
T �
R
n
10(29)
C TREEELINE RD, >----I
o(32) —
72(1B5)
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� n
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\/m J
RD.
_---- _-
PROJECT LOCATION
N n
1
\\
a(2Di)
LEGEND
1
XXX(XXX)
e
��— PM PEAK HR. VOLUME
FLATHEAD
AM PEAK HR. VOLUME
gg
VALLEY
C.C.
v N
35(24)
I
5(5)
/
56(98)
GRANDVIEW DR.
11
5(5) —
25(52)
r n R
e'
:==
MORRISON
TT�\( ?�
2020 Grand Ave.
fgfnears Bll p,MT69102
Survayorr
sc onnrrr
DRAWN BY; PMI
CHK'D. BY: RA8
KAL IS PELL
HUTTON RANCH PLAZA
MT
PROJECT NO.
3919.004.011
��
1--1 1H--5
MAI RL INC
Plannoa PFax:(05)66-343Z
Fax: 40665G343i
APPR.BY: Rqg
FlGURENUMBER
)
DATE: d@9105
2015 TOTAL TRAFFIC
An Cmply—O—d Compuny
rwxanirn WWS011u . E.n:C —
(Phase 2) W!0 KALISPELL BYPASS
14
H'.1391910W10111TRAFFIC 2015 TOTALdwg Ap0292005
AASHTO states, "at signalized intersections, the first vehicle stopped on one approach
should be visible to the driver of the first vehicle stopped on each of the other
approaches while left turning vehicles should have :sufficient sight distance to select
gaps in oncoming traffic." -
Obstacles such as signal and light standards, utility poles, and other potential vehicular
safety hazards should be placed outside the clear zone. A desirable clear zone for
curbed facilities is 5-10 feet, if practical (Reference;9).
CONCLUSION AND RECOMMENDATIONS
Based upon the analysis provided herein, it is concluded that traffic operations will continue
to function adequately through development of the Hutton Ranch Plaza. Generally, traffic
impacts associated with Phase 1 and Phase 2 development can be mitigated with proper
traffic control measures, signal timing, phasing and isolated capacity enhancements. It is
clear that the KBP will play a crucial role in reducing congestion and enhancing future
traffic operations within this corridor. If implementation of this facility is delayed beyond full
buildout of Hutton Ranch Plaza, deterioration in traffic operations along Highway 93 is
anticipated.
A traffic signal is proposed at the intersection of Highway 93 and FVCC. This traffic signal
would serve the combined traffic of the college and Hutton Ranch development. A detailed
warrant analysis in accordance with the Manual `on Uniform Traffic Control Devices
(MUTCD), 2003 Edition has not been conducted. However, it appears as though Warrant
3 Peak Hour, as provided in this reference, would be met under both 2010 and 2015 total
traffic conditions (Reference 10). Installing a traffic signal at this location would effectively
maintain 1/4 mile spacing of signals from West Reserve Drive to Grandview Drive. In order
to optimize traffic operations and vehicle progression along the Highway 93 corridor, these
signals should be developed as part of a coordinated (interconnected) system.
Alternative scenarios utilizing a single (signalized) primary access for Hutton Ranch, in
conjunction with restricted movement stop -controlled accesses (right in/right out), resulted
in poor LOS for many traffic movements, particularly at Hutton Ranch Road and Highway
93. The proposed access plan would ease congestion, disperse traffic volumes for
enhanced ingress/egress operations, and facilitate development of the KBP.
RA3919\004\O11ltrafficstudy04 29_05.doc Page 25 of 26
REFERENCES
1. Montana Department of Transportation traffic count records, 1999-2003. - -- -
2. Traffic Impact Study, Spring Prairie Center Mixed -Use Development, Robert
Peccia & Associates, November 2003 and Kalispell Costco Technical
Memorandum, Kittelson &-Associates, Inc., November 18, 2004.
3. Exhibits by Stelling Engineers, Inc., Great Falls, MT.
4. Trip Generation, 7th Edition, Institute of Trarisportation Engineers (ITE), 2003.
5. Trip Generation, 5th Edition, Institute of Transportation Engineers (ITE), 1991.
6. Kalispell Bypass, UPN 5-3 (59), CN 2038, Traffic Forecasting Report, Stelling
Engineers, Inc., March 2005.
7. Highway Capacity Manual (HCM2000), Transportation Research Board, 2000.
8. A Policy On Geometric Design of Highways and Streets, 4th Edition, AASHTO,
2001,
9. Road Design Manual, Montana Department of Transportation; November 2000.
10. Manual on Uniform Traffic Control Devices (MUTCD), 2003 Edition, Federal
Highway Administration,
H:\3919\004\011Vraffics[udy04_29_05.doc Page 26 of26
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KALISPELL, MONTANA
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