1. Ordinance 1380 - Mountain View Plaza PUD - 2nd ReadingCity of Kalispell
Post Office Box 1997 - Kalispell, Montana 59903-1997 - Telephone (406)758-7700 Fax(406)758-7758
REPORT TO: Honorable Mayor and City Council
FROM: Chris A. Kukulski, City Manager
SUBJECT: 2nfl Reading of Ordinance 13 80, Mountain View PUD Agreement
MEETING DATE: April 2, 2001
BACK GROUND: During the March 19, City Council meeting the Council unanimously approved the
first reading of Ordinance 13 80. There are two items that have been changed in the PUD agreement per the
discussion that took place during the last meeting. Both are minor in nature and have been amended to
further clarify intent. The first change is on 1.15 Infrastructure page 3 line 6. The words "will be dedicated
to the City of Kalispell and" have been removed. Because there are no roads being dedicated to the City we
did not want this to confuse the fact that all infrastructure including streets must be built to the City's urban
design and construction standard weather the city will ultimately own them or not. The second change was
strictly a typo that is in Section3.06 Site Grading B line 2. The removal of"and Pack" was a carry over from
the original PUD and should have been deleted. Crosswell Development is responsible for all obligations
associated with Site Grading, not Pack. Outside of these two changes the PUD Agreement has not changed
from the first reading.
On February 20, 2001 the City Council directed the City Manager and City Attorney to draft a Planned
Unit Development Agreement (PUD) with Crosswell Development Corporation based on 31 Conditions of
Approval. The 31 conditions placed on the Mountain View Plaza development came as a result of a January
9, 2001, Kalispell City -County Planning Board public hearing and input by the City Council and
administration.
As you may recall, the staff was instructed to ensure future retail expansion could be done within the City
of Kalispell with attention to quality infrastructure and aesthetics. Sections 1.15, 3.04, 3.05, 3.06 and 3.07
of the PUD ensure that the infrastructure necessary to service the development meets all City of Kalispell
design and construction standards. Sections 2.01 C and 2.01 F secure, through bonds, that infrastructure and
improvements necessary for the project will be completed, at the developer's cost, no later than May 5, 2005.
The PUD Agreement also ensures quality landscaping, building design and construction materials that are
based on a "lodge/chalet" design.
Page I of 2
Based on taxable values received by the Department of Revenue on similar stores in Missoula and in our
valley, I am estimating the taxable value, at build out, to be $685,000 (Home Depot $220,000; Target
$175,000; Grocery Store $100,000 and five smaller pads of Barnes & Noble, Best Buy, Applebees etc.
$190,000). Remember that this build out is unlikely to take place immediately. Based on this information,
I am estimating that in the first year the development will generate $25,135 and at build out it should generate
$78,261 ($685,000 x 114.25 mills).
The Mountain View project will further secure Kalispell's place as the valley's business and retail center. We
should not forget that a substantial amount of money is removed from this valley by those who choose to
drive to Spokane and Missoula in order to shop in some of these same stores. Also remember that we
entered into this process with the belief that the retailers included in this development were likely to be
approved somewhere within our valley (most likely outside ofthe City in Flathead County). This assumption
is amplified by the fact that K-Mart, Wal-Mart, Shopko and Costco have all been allowed to develop outside
of Kalispell. It is true that the net effect on jobs and tax revenue will be less than what is developed
specifically at Mountain View. There will be a transfer of some jobs and loss in taxable value from other
areas within the valley. However, I do believe that there will be an overall net increase of both tax revenue
and jobs. It should also be noted that Plum Creek and Jore Corporation, two major employers in our region,
are major suppliers of products to Home Depot.
I encourage the City Council to approve Ordinance 1380. Once approved, the staff will work hard to ensure
the success of the development while making sure that the PUD agreement is strictly adhered to.
RECOMMENDATION: The City Council approve the second reading of Ordinance 1380, which is
Planned Unit Development Agreement between the City of Kalispell and Crosswell Development LLC.
FISCAL EFFECTS: Based on information given by the Department of Revenue I estimate Kalispell's
property tax impact not including assessments to be $25,000 in year one and $78,000 at build out.
ALTERNATIVES: As suggested by the Council.
Respectfully submitted
( '"
Chris A. Kukulski
City Manager
Report compiled March 28, 2001
Page 2 of 2
NO. 1380
AN ORDINANCE APPROVING A PLANNED UNIT DEVELOPMENT ON CERTAIN REAL
PROPERTY OWNED BY PACK AND CO., REPEALING ORDINANCE NO. 1324, AND
DECLARING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL, AS
FOLLOWS:
SECTION I. That the Planned Unit Development proposed by
CROSSWELL DEVELOPMENT LLC upon the real property described in
Exhibit "A", attached hereto, incorporated herein, and thereby
made a part hereof, is hereby approved, subject to:
A) Development Agreement, dated 1 2001,
between CROSSWELL DEVELOPMENT LLC, PACK AND
COMPANY, and the CITY OF KALISPELL, Exhibit "B",
attached hereto, incorporated herein and thereby
made a part hereof.
SECTION II. Ordinance No. 1324 ("Domesite") is hereby
repealed.
SECTION III. This Ordinance shall take effect from and after
30 days of its passage by the City Council.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF
THE CITY OF KALISPELL, MONTANA, THIS 2ND DAY OF APRIL, 2001.
Wm. E. Boharski
Mayor
ATTEST:
Theresa White
City Clerk
V:\attsect\wp\pud\crosswell.wpd 1
PLANNED UNIT DEVELOPMENT
AGREEMENT FOR
MOUNTAIN VIEW PLAZA
PARTIES:
EFFECTIVE:
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CROSSWELL DEVELOPMENT LLC
PACK AND COMPANY
CITY OF KALISPELL, MONTANA
TABLE OF CONTENTS
PARTIES AND PURPOSE . . . . . . . . . . . . . . . . . . . . . . 1
I. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . 2
1.01
Agreement . . . . . . . . . . . . . . . . . . . . . . 2
1.02
Building Department . . . . . . . . . . . . . . . . . 2
1.03
City . . . . . . . . . . . . . . . . . . . . . . . . 2
1.04
City Council . . . . . . . . . . . . . . . . . . . . 2
1.05
Developer . . . . . . . . . . . . . . . . . . . . . . 2
1.06
Director of Public Works . . . . . . . . . . . . . . 2
1.07
Easement (s) . . . . . . . . . . . . . . . . . . . . . 2
1.08
Master Site Plan . . . . . . . . . . . . . . . . . . 2
1.09
Area "A„ . . . . . . . . . . . . . . . . . . . . . . 2
1.10
Area "B. . . . . . . . . . . . . . . . . . . . . . . 2
1.11
Phase . . . . . . . . . . . . . . . . . . . . . . . . 2
1.12
Proposed Buildings . . . . . . . . . . . . . . . . . 2
1.13
Subject Property or Subject Area . . . . . . . . . . 2
1.14
Substantial Completion . . . . . . . . . . . . . . . 3
1.15
Infrastructure . . . . . . . . . . . . . . . . . . . 3
II. GENERAL DEVELOPMENT AND USE OF THE SUBJECT
PROPERTY . . . . . . . . . . . . . . . . . . . .
. . . . 3
2.01
Development Overview . . . . . . . . . . . .
. . . . 3
2.02
Hazardous Substances . . . . . . . . . . . .
. . . . 6
2.03
Uses . . . . . . . . . . . . . . . . . . . .
. . . . 8
2.04
Ownership . . . . . . . . . . . . . . . .
. . . . 9
2.05
Relationship to Zoning Ordinance . . . . . .
. . . . 9
2.06
Effectiveness . . . . . . . . . . . . . . . .
. . . . 9
2.07
Certification Procedure . . . . . . . . . . .
. . . . 9
III. SITE CONDITIONS . . . . . . . . . . . . . . . . .
. . . 10
3.01
Development . . . . . . . . . . . . . . . . .
. . . 10
3.02
Access . . . . . . . . . . . . . . . . . . .
. . . 10
3.03
Private Internal Roadways and Sidewalks . . .
. . . 11
3.04
Sewer and Water . . . . . . . . . . . . . . .
. . . 11
3.05
Storm Water . . . . . . . . . . . . . . . . .
. . . 13
3.06
Site Grading . . . . . . . . . . . . . . . .
. . . 13
3.07
Fire Suppression . . . . . . . . . . . . . .
. . . 14
3.08
Landscaping . . . . . . . . . . . . . . . . .
. . . 14
3.09
Off -site Paths . . . . . . . . . . . . . . .
. . . 15
3.10
Lighting . . . . . . . . . . . . . . . . . .
. . . 15
3.11
Signage . . . . . . . . . . . . . . . . . . .
. . . 15
IV. CITY
SEWER/WATER CONNECTION FEES . . . . . . . . .
. . . 16
4.01
Connection Fee Schedule . . . . . . . . . . .
. . . 16
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V. AMENDMENT OR MODIFICATIONS OF AGREEMENT .
5.01 Amendment or Modification Procedures
VI. MISCELLANEOUS . . .
6.01 Severability
6.02 Recordation .
6.03 Entire Agreement
6.04 Integration . .
6.05 Binding Effect
6.06 Substitution of
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Primacy . . .
Parties . . . . .
HH
. . . . . . . 19
. . . . . . . . . 19
. . . . . . . . . 19
. . . . . . . . 20
. . . . . . . . 20
. . . . . . . . 20
. . . . . . . . 21
PLANNED UNIT DEVELOPMENT AGREEMENT
PARTIES AND PURPOSE: This Agreement made and entered into this
day of 2001 is by and between Crosswell Development
LLC, a I with its office and
principal place of business located at ,
hereinafter CROSSWELL DEVELOPMENT LLC; Pack and Company, with its
office and principal place of business at 2355 Highway 93 North,
Kalispell, Montana, hereinafter PACK; and the City of Kalispell, a
municipal corporation, with its office and principal place of
business located at 312 1st Avenue East, Kalispell, Montana 59901,
hereinafter CITY:
W I T N E S S E T H:
WHEREAS, Crosswell Development LLC is the contract purchaser and
developer of certain real property located in Flathead
County, Montana, which is further described in Exhibit
"A" attached hereto and hereby made a part hereof, and
which hereinafter is referred to as the "Subject
Property"; and,
WHEREAS, The Subject Property has previously been annexed into the
CITY by Resolution Nos. 4476 and 4477; and,
WHEREAS, (i) Crosswell Development LLC and PACK desire to have the
Subject Property rezoned from the prior DOMESITE PUD to
Mountain View Plaza, a Commercial (B-2) Planned Unit
Development (PUD), mapped with certain new streets,
building locations and accesses from U.S. Highway #93 and
West Reserve Drive; (ii) Crosswell Development LLC and
PACK, have filed a PUD application which contains (a)
Zone Change application, and (b) PUD Narrative with
Exhibits; and,
WHEREAS, In order to allow the PUD, assure the installation of
Infrastructure within the "Subject Property," permit
connections to the CITY utility systems, and prescribe
the permitted uses within the requested zoning areas, the
parties hereto determine it is to be in their best
interests to enter into this Planned Unit Development
Agreement.
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I. DEFINITIONS
1.01 Agreement shall mean this Planned Unit Development Agreement
between Crosswell Development LLC, PACK, and CITY.
1.02 Building Department shall mean the Building Department of the
City of Kalispell.
1.03 CITY shall mean the City of Kalispell, Montana.
1.04 City Council shall mean the City Council of the City of
Kalispell, Montana.
1.05 Developer shall mean Crosswell Development LLC.
1.06 Director of Public Works shall mean the Director of Public
Works of the City of Kalispell, Montana.
1.07 Easement(s) means the Easement(s) described in §3.04 of this
Agreement.
1.08 Master Site Plan means the drawing_constituting the_site plan
approved for the development of the Subject Property annexed
hereto as Exhibit "C". The actual building location and
building sizes may vary but the buildings will be located
within the general areas as shown on the Master Site Plan.
1.09 Area "A" means that portion of the Subject Property lying
North of the Southerly line of the Main Entrance Road on U.S.
Highway #93 North, as shown on the Master Site Plan.
1.10 Area "B" means that portion of the Subject Property lying
South of the Southerly line of the Main Entrance Road on U.S.
Highway #93 North, as shown on the Master Site Plan.
1.11 Phase means a stage of development within a portion of the
Subject Property designated in the Master Site Plan.
1.12 Proposed Buildings means the buildings proposed to be built
within the "pads" as shown on the Master Site Plan,
contemplated to be built in phases.
1.13 Subject Property or Subject Area means the real property
described in Exhibit "A" annexed hereto and made a part
hereof.
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1.14 Substantial Completion shall mean that substantially all of
the work to be performed in the development shall have been
performed and the Infrastructure constructed in each Phase are
usable for their intended purposes, as certified by the
Director of Public Works and the Building Department, which
certification shall not be unreasonably withheld or delayed.
1.15 Infrastructure means all water, sewer and storm drainage
systems that will be dedicated to the public and have been
installed in accordance with the Montana Public Works Standard
Specifications and the City of Kalispell Standards for Design
and Construction. In addition, Infrastructure shall include
roads that are designed and constructed in accordance with the
Montana Public Works Standard Specifications and the City of
Kalispell Standards for Design and Construction. Said
Infrastructure shall consist of various public utilities and
dedicated streets. Costs for said infrastructure shall be
shown on Engineer's Estimate, Infrastructure, Crosswell
Development LLC PUD, Hwy 93 North, prepared by Thomas, Dean
and Hoskins Engineering, to be attached hereto as Exhibit "D"
after approval by the CITY. Notwithstanding any of the
foregoing, excluded from these terms are: building
construction; parking lot paving; final landscaping in and
around the buildings and parking lot (s); lighting; signage;
and the service lines to each building.
II. GENERAL DEVELOPMENT AND USE OF THE SUBJECT
PROPERTY
2.01 Development Overview
(A) Subject to the other provisions of this Agreement, any
development within or use of the Subject Property
occurring after the effective date of this Agreement
shall substantially conform to and comply with the
provisions of the PUD Application of Crosswell
Development LLC, as amended and approved by the FRDO
Staff Report #KPUD 00-1 and the City -County Planning
Board meeting on January 9, 2001 as amended by the
conditions of approval of the PUD as passed by the
Kalispell City Council on February 20, 2001, and this
Agreement with the documents and drawings annexed hereto.
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(B) Crosswell Development LLC represents, and it is agreed
between the parties, that the development of the Subject
Property will include the following:
(1) Area A when —completed, will include (i) ground
preparation and site leveling of Area "A" of the
Subject Property, (ii) construction, installation
and extension of sewer and water mains to the
Subject Property, (iii) construction, installation
and extension of sewer and water mains, and storm
sewer utilities within Area "A", (iv) final site
preparation, streets, installation of necessary
parking lots, landscaping, construction of the
building improvements and all other improvements
shown on the Master Site Plan in Area "A".
(2) Area B when completed, will include (i) ground
preparation and site leveling of Area "B" of the
Subject Property, (ii) construction, installation
and extension of sewer and water mains, and storm
sewer utilities within Area "B", (iii) final site
preparation, streets, installation of necessary
parking lots, landscaping, construction of the
building improvements and all other improvements
shown on the Master Site Plan in Area "B".
(3) Nothing is to be construed by the foregoing as to
require completion of one Area prior to engaging in
work in the other Area nor should be construed as
requiring the completion of an Area simply because
of the construction of one of the buildings within
that Area, except as provided in Subsection (F),
below.
(C) Notwithstanding paragraph 2.01(B) above, it is
anticipated that site preparation and ground leveling of
areas currently occupied by batch plant facilities will
be delayed during the construction phases described
above, for a term, but, it is agreed that removal of the
NUPAC asphalt and concrete batch plants, office,
associated equipment, maintenance sheds, warehouses and
all other related structures will be completed prior to
the issuance of a building permit for any structure in
any portion of Area "B", however, in any case, prior to
May 5, 2005. It is agreed all facilities on the Montana
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Department of Transportation site will be removed prior
to the issuance of the first building permit. Should the
fee owner of the area or areas stated above be a
signatory hereto or their successor, and should they
refuse to vacate the premises as stated herein, CITY may
bring a legal action to remove them and the improvements
to be removed and CITY shall be entitled to attorney fees
and all expenses for such action as part of the
judgement.
(D) Crosswell Development LLC represents, and it is agreed
between the parties, that three large buildings proposed
for the eastern portion of the site shall not exceed 38
feet in height, with an additional seven foot allowance
for the screening of roof mounted equipment and as an
architectural facade.
(E) The east face of the large buildings shall not be used
for advertising, display of corporate logo or colors and
shall be treated with the approved list of building
materials and with the approved colors, Exhibit "E".
(F) Prior to issuance of any building or construction permit,
Crosswell Development LLC shall furnish security for the
Infrastructure described in § 1.15, supra. Such security
shall consist of, at the sole option of Crosswell
Development LLC, performance bond(s) issued by a surety
company licensed to do business in Montana, irrevocable
letter(s) of credit issued by a bank licensed to do
business in Montana, or such other security as shall be
reasonably acceptable to the CITY, however real property
shall not be accepted as security. Such security shall be
for the benefit of and enforceable and collectible by the
CITY, acting through the City Manager, and shall be in an
initial face amount equal to 125% of the direct estimated
cost of the work so secured, as certified by Crosswell
Development LLC's licensed professional engineer and the
CITY's Director of Public Works. The face amount of the
security shall be reduced by Crosswell Development LLC
from time to time so as to reduce the amount of security
to 125% of the remaining Infrastructure after deducting
125% of the cost of the work completed as determined for
the creation of the security and as certified by
Crosswell Development LLC's licensed professional
engineer and approved by the CITY's Director of Public
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Works. Determination of the amount of the reduction shall
be made within 30 days of receipt by the Public Works
Director of said certification. Crosswell Development
LLC may request final release of the performance bond
upon filing with the Building Department of a Notice of
Completion, which will then be reviewed by CITY for final
approval.
1) The Infrastructure under § 1.15 shall be
substantially completed on or before May 5, 2005.
If said Infrastructure is not completed within the
time allowed, the Council shall redesignate the
undeveloped portion of the Subject Property in
accordance with the Kalispell Zoning Ordinance, and
shall be entitled to demand and receive within 10
days of the written demand on the party offering
the security, the remaining amount of security for
Infrastructure under this Agreement.
2) Said Security shall be in effect until at least
December 5, 2005.
(G) Covenants: Draft Covenants are attached as Exhibit "F".
Prior to any subdivision approval or construction of any
building, Final Covenants will be completed. These
Covenants must be approved by CITY, but CITY may only
seek revision of and review the Covenants so as to cause
compliance with the conditions of approval of the PUD and
not a general review of the Covenants.
2.02 Hazardous Substances
Crosswell Development LLC and PACK acknowledge the existence
of Phase I and Phase II Environmental Site Assessments, NUPAC
Gravel Pit Property, 2355 U.S. Highway 93 North, Kalispell,
Montana prepared by NTL Engineering and Geoscience, Inc.,
Great Falls, Montana, issued August 27, 1999. Said report
establishes the existence of diesel fuel contamination in the
soil near the underground storage tanks, partially buried
above ground storage tanks and other hydrocarbon contaminants.
CITY has received these Assessments.
(A) Prior to the commencement of construction of
Infrastructure within the area depicted as the
remediation area on Exhibit "G", attached, and prior to
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the issuance of a building permit for any building in
Area B, Crosswell Development LLC and PACK will submit
evidence from the Montana Department of Environmental
Quality demonstrating that the Subject Property is free
of contamination.
1) In furtherance of the foregoing, PACK and Crosswell
Development LLC disclose the following from their
Contract to Purchase and Sell: That the closing
date for the acquisition of the Subject Property is
to occur within 30 days of the execution of this
Agreement. With respect to the property which is
described as Parcel 1 and Parcel 2, on Exhibit "A",
PACK will provide to Crosswell Development LLC a
performance bond in the amount of one hundred
twenty-five percent (125%) of the estimated cost of
remediation to ensure that the remedial
environmental cleanup is completed within 60 days
of the vacating of the tract by PACK or NUPAC with
the understanding that should appropriate
environmental authorities require additional time
for inspecting and approving the remediation, an
additional 120 days may be allowed for completion
of the inspection, approvals and any additional
remediation. Crosswell Development LLC will, upon
request, assign its rights under this bond to CITY.
2) In furtherance of the foregoing, PACK and Crosswell
Development LLC disclose the following from their
Contract to Purchase and Sell: That with respect to
Parcel 3 on Exhibit "A", PACK and the Montana
Department of Transportation have determined that
should remediation be necessary, the Montana
Department of Transportation shall be responsible
for completing the same within time frames as set
forth in Subsection A, above.
B) Should PACK fail to provide the bond as stated above, and
should Crosswell Development LLC determine that the costs
for remedial action are such that it would make the
development of this project not economically feasible, it
shall notify CITY in writing and the zoning provided
herein and the terms of this agreement shall be
terminated.
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2.03 Uses
(A) The uses allowed within the PUD shall be those uses
generally allowed under the B-2 zoning pursuant to the
Kalispell City Zoning Regulations except that casinos, as
defined by the Kalispell City Zoning Regulations as they
now exist or are later amended, and those other uses
which require areas for display of large merchandise such
as new and used automobile sales, manufactured home
sales, recreational vehicle sales and alike are
prohibited. It is understood, however, that this
prohibition does not preclude incidental activities in
events associated with other authorized uses occurring
upon the site.
(B) Crosswell Development LLC agrees that building design and
construction upon the Subject Property shall conform to
the relevant Building Department regulations governing
commercial construction.
(C) Crosswell Development LLC agrees that the development
shall be comprised of buildings with a consistent
architectural theme, lodge or chalet, as initially
determined by Crosswell Development LLC and similar to
that shown on the exhibit to the proposed covenants, said
covenants being Exhibit "F", attached hereto. A list of
materials and exterior building treatments is attached
hereto as Exhibit "E", which list shall be an exclusive
list of materials and exterior building treatments to be
used within the development. This list shall be included
in the Covenants to be filed upon the development.
(D) Crosswell Development LLC shall provide CITY with a fire
station pad. The pad shall be a minimum of two acres in
size with not more than one percent grade change
throughout the pad. The ratio of length to the width of
the proposed pad site shall not exceed 2:1 without prior
consultation with and agreement of CITY. Utilities shall
be extended to the pad so that it is ready for future
development by the CITY. Crosswell Development LLC shall,
at the time of granting the pad, provide easements for
access with such access, including, if Crosswell
Development LLC so decides, in Crosswell Development
LLC`s sole discretion, fee interest subject to easements
in favor of Crosswell Development LLC in all or a portion
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of the necessary access. Should such fee interest be
granted, it shall not be considered part of the pad but
shall be considered additional land granted to CITY. This
provision is not to be considered an extraction but was
rather negotiated and added to the conditions of approval
as part of Crosswell Development LLC's desire to
participate in and provide for the future needs of CITY.
2.04 Ownership
Crosswell Development LLC represents, and it is agreed between
the parties, that the Property and buildings constructed
thereon may be conveyed, with ownership transferred by
Crosswell Development LLC. It is anticipated that ownership of
a portion of the property may remain in Crosswell Development
LLC, which will enter into leases with the occupants of the
buildings constructed thereon. This provision is specifically
subject to Section 6.06, below.
2.05 Relationship to Zoning Ordinance
Except as specifically modified or superseded by this
Agreement and attached drawings, the PUD Application of
Crosswell Development LLC, as amended and approved in the FRDO
Staff Report #KPUD 00-1, and the City -County Planning Board
meeting on January 9, 2001 as amended by the conditions of
approval provided by the Kalispell City Council on February
20, 2001, the laws, rules, and regulations of the City of
Kalispell governing the use and development of land and
buildings, including the Kalispell Zoning Ordinance as it now
exists or as amended, shall apply to the Subject Property.
2.06 Effectiveness
The provisions of this Agreement shall become effective
simultaneously with the approval of the PUD Ordinance.
2.07 Certification Procedure
Whenever under this Development Agreement a certificate by the
Director of Public Works is required to be given, such
certificate shall be given after the receipt of a completed
application therefor and approved by the Director. Such an
application shall be deemed completed upon receipt of such
drawings and narrative information as are reasonably necessary
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for the issuance of such certificate, which certification
shall not be unreasonably withheld or delayed.
III. SITE CONDITIONS
3.01 Development
The Subject Property shall be developed with the
Infrastructure as described in this Agreement and Exhibit "D"
to the Agreement.
3.02 Access
(A) Primary access to the Subject Property shall be via one
Main Entry, designated on the Master Site Plan, on U.S.
Highway #93 North and one North Entry, designated on the
Site Plan, on West Reserve Drive. Secondary access shall
be as determined appropriate by the Montana Department of
Transportation and the City of Kalispell under § 3.02
(B) .
(B) Crosswell Development LLC agrees that it shall, at its
own expense, have a comprehensive traffic impact study
completed, which will identify all expected traffic
impacts and will provide proposals for mitigation.
(1) Following completion of the comprehensive study,
Crosswell Development LLC will obtain all necessary
access permits from the Montana Department of
Transportation and/or Flathead County Road
Department and CITY prior to use.
(2) Crosswell Development LLC agrees to pay for all
necessary traffic turn lanes, traffic signals, and
other regulatory signs and signals directly
pertaining to ingress and egress to and from U.S.
Highway #93 and West Reserve Drive, as required by
the comprehensive traffic study.
(C) All primary and secondary entrances shall be completed to
CITY standards prior to occupancy permits being issued
for any site utilizing said entrances for access.
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(D) Emergency fire, ambulance, police and public vehicle
access shall be at all times available through said
primary and secondary access without impediment.
(E) The proposed northernmost access along Highway 93 near
Ole's Country Store shall not be built unless the
aforesaid traffic study establishes it is necessary to
improve safety and traffic.
3.03 Private Internal Roadways and Sidewalks
(A) Crosswell Development LLC acknowledges that the
development of the Subject Property includes development,
at Crosswell Development LLC's expense, of internal
roadways providing access to the lots within the PUD.
(B) Crosswell Development LLC agrees that the interior
roadways within the PUD shall be constructed to CITY
standards with curb, gutter, and sidewalks on at least
one side of the roadways, except that sidewalks shall be
on both sides of the Main Entrance of US Highway 93, in
accordance with the proposed Site drawings and applicable
City Standards for Design and Construction for local and
collector streets.
(C) Crosswell Development LLC agrees that they will maintain
all internal streets, boulevards, and sidewalks as
private with unrestricted public access.
(1) Sidewalks shall be provided as shown on the Master
Site Plan.
3.04 Sewer and Water
(A) Sanitary sewer service to the Subject Area shall be
accomplished via extension from the existing main at its
current terminus near the Flathead Valley Community
College (FVCC). Said sanitary sewer service shall be
extended to the furthest boundary of the Subject
Property, in accordance with the CITY Extension of
Services policy.
(B) Water service to the Subject Property shall be provided
by means of an extension of an existing CITY -owned 12
inch diameter water main from its present terminus near
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FVCC on the East side of U.S. Highway 93. This extended
main shall be looped to provide dual direction of supply
to the Subject Property in the event that this extended
water main is temporarily out of service for repairs or
maintenance. Said looping is to be accomplished by
further extension of the aforesaid water main across U.S.
Highway 93 to the West side and from there South to a
point of connection with the nearest existing CITY owned
water main of the same size, or such other point of
connection as may be authorized by the CITY. Water mains
extended to serve facilities within the Subject Property
shall be looped in similar fashion to ensure the ability
to supply water service in the event a water main is
temporarily out of service for maintenance or repair.
(C) If a well is used on the premises it shall not in any way
be connected to the CITY water supply system.
(D) All sanitary sewer and water utilities shall be designed
and installed in dedicated easements as shown on Exhibit
"D" and in accordance with the City of Kalispell's
Standards for Design and Construction.
(E) All Utility Infrastructure located within the Subject
Property shall be dedicated to the public upon
completion.
(F) Crosswell Development LLC agrees to obtain all necessary
easements for the extension of water and sewer to the
Subject Property. In addition, Crosswell Development LLC
will grant to CITY any and all easements necessary for
CITY to perform maintenance of water and sewer lines
installed pursuant to this Agreement.
(G) In the event that CITY requires installation of water
and/or sewer lines larger than those required to service
the current needs of Crosswell Development LLC as
determined by hydraulic modeling tests, then CITY shall
pay only those costs associated with the increased
utility main sizing or extension.
(H) In no event shall this Agreement be construed as to
require CITY to complete installation of Infrastructure
and other improvements on the Subject Property, or on any
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portion thereof, during any phase of development of the
Subject Property.
(I) Following completion of installation of the sewer and
water lines on the Subject Property by Crosswell
Development LLC, it is agreed that the said utility lines
shall be dedicated to CITY, and shall at that time be
maintained by CITY in accordance with CITY maintenance
policy and standards. However, service lines to
individual buildings on site shall remain under private
ownership and shall be privately maintained.
(J) Should CITY choose not to participate in the _additional
costs as provided in Subsection G, above, and still
requires an up -sizing as described therein, Crosswell
Development LLC, shall be entitled to a Developer's
Extension Agreement as provided in Section 4.01 (C),
below.
3.05 Storm Water
(A) Storm Water retention, drainage, and disposal shall be
handled in accordance with regulations of the CITY and
the Montana Department of Environmental Quality, and such
other City, State and Federal "storm water requirements"
as are in existence and made applicable to the property
at the time of the construction of any improvement.
(B) Storm Water will not be retained, treated or discharged
off -site.
3.06 Site Grading
(A) Site Grading of the Subject Property shall be subject to
the City's Emission Control Plan and Standards for Design
and Construction.
(B) Prior to commencement of site grading, Crosswell
Development LLC agree to obtain an Air Quality
Construction and Demolition Permit from the Director of
Public Works, and to comply with the terms and conditions
of said Permit during construction, including hauling of
material to and from the site.
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(C) A site grading plan shall be submitted to the Director of
Public Works for review and approval prior to the
commencement of any grading work.
3.07 Fire Suppression
(A) Prior to the Building Department issuing any permit for
any foundation or building within the PUD, the Fire Chief
for CITY must certify that Crosswell Development LLC has
supplied a fire site access plan for the Subject Property
and an engineered internal fire suppression system for
the buildings to be constructed on the Subject Property,
which will be in accordance with the Uniform Fire Code
and will be acceptable to the Fire Chief.
(B) Crosswell Development LLC agrees to install hydrants and
water mains in accordance with City of Kalispell
Standards and to obtain approval thereof prior to
construction from the City of Kalispell Fire Chief.
3.08 Landscaping
(A) Prior to commencing construction on the Infrastructure,
the parties shall prepare a plan which shall be attached
as an addendum hereto which shall address grading,
revegetation, irrigation and maintenance of the
undeveloped areas so as to create a weed free, dust free
area until such time as the undeveloped area is
developed.
(B) Trees will be placed within the parking lots at a rate of
1 tree per every 14 parking spaces as stated in the
application. Street trees will be placed at 40 foot
intervals along both sides of the internal roadways
except where they immediately abut a parking lot island
or planter or abut building fronts. Street trees are to
be a minimum of 2 1/4 inch caliper at planting.
(C) Landscaping along Highway 93 and West Reserve Drive will
include street trees placed at 50 foot intervals which
are a minimum of 2 1/4 inch caliper at planting and will
include a hedge or shrub at a minimum height of three
feet between the parking lots and roadways. This shall
comply with site obstruction standards.
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(D) A landscape pod will be placed at the end of each parking
aisle and parking medians which will include a minimum of
one tree at a minimum caliper of 2 1/4 inch planting in
addition to other shrubs and greenery.
(E) The overall landscape plan shall be coordinated with the
Kalispell Parks and Recreation Director as to the exact
size and location of the plantings and the species lists.
This plan shall be attached as an addendum upon approval
of Crosswell Development LLC and the Parks Director.
(F) Landscaped areas within the site shall be as proposed in
the application which includes landscaping, walkways and
gazebos.
(G) All refuse areas shall be screened from public view.
(H) Retaining walls in excess of 4 feet in height will be
avoided as much as possible with the preference being the
implementation of landscape terracing to make transition
in areas with steepest grades.
3.09 Off -site Paths
Crosswell Development LLC agrees to install a pedestrian
walkway as indicated on Exhibit "C" to provide for a
continuous and connected system with the existing walkways
along Highway 93 and West Reserve Drive, including a sidewalk.
3.10 Lighting
(A) Crosswell Development LLC shall submit a lighting plan to
CITY which utilizes standard lighting fixtures with
downward projected lighting in compliance with the Zoning
Ordinance.
(B) The lighting plan shall be reviewed and approved by the
CITY.
3.11 Signage
The maximum signage to be used will be calculated as provided
in this section.
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(A) Wall Signs: The amount of square footage for wall signs
allowed on buildings shall be calculated at 1.5 sq. ft.
for each frontage foot —of any single side of the
particular building as determined by Crosswell
Development LLC.
(B) Ground Signs: Two ground signs shall be permitted, one
foot from the property line fronting U.S. Highway 93.
Each sign will have a maximum height of five feet. One of
the signs shall not exceed 90 square feet per side and
the other shall not exceed 60 square feet per side.
(C) Entrance Signs: An entrance sign shall be allowed at a
minimum of 40 feet from the property line fronting U.S.
Highway 93 at a maximum height of 22 feet. This sign
shall not exceed 158 square feet per side. An entrance
sign will be allowed at a minimum of 30 feet from the
property line fronting West Reserve Drive. This sign will
have a maximum height of eighteen feet and will not
exceed 117 square feet per side.
(D) All other signage will conform to CITY Ordinances.
IV. CITY SEWER/WATER CONNECTION FEES
4.01 Connection Fee Schedule
(A) Connection fees for connection to the CITY Water and
Sewer Utility, based upon Resolution No. 4287 and
Resolution No. 4288, will be determined in accordance
with City Standards and fee schedules for connection
fees, —in effect at the time of the application for a
building permit.
(B) Crosswell Development LLC, or its successors and assigns
which own the property at the time of applying for a
Building Permit, shall pay the connection fees associated
with the utility connections at the time of obtaining the
Building Permit for each structure. This provision is to
assure that the fees are paid at the time of applying for
a Building Permit and is not to be construed as to
prohibit Crosswell Development LLC from requiring
reimbursement or advance payment of the cost from any
potential tenant or purchaser.
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(C) Crosswell Development LLC may be entitled to
reimbursement of a portion of the costs of installation
and extension of water and sewer utilities from future
users who connect to extended water and sewer facilities.
If Crosswell Development LLC anticipates the need for
reimbursement of cost, Crosswell Development LLC's
engineer shall prepare a preliminary design and report
that details the proposed facilities and the estimated
proposed reimbursable costs and will submit said design
and report to the CITY for review and concurrence. Costs
shall be recovered through a developer's extension
agreement and will be subject to the following
conditions.
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1) No reimbursement will be allowed for any costs
associated with meeting the utility requirements
for development of the Subject Property. These
costs shall be determined by Crosswell Development
LLC's engineer and shall be submitted for review
and concurrence by the Director of Public Works.
Said costs shall be the actual costs of
construction, inclusive of engineering and
inspection costs, and shall be submitted as
specified within thirty (30) days of substantial
completion of the work.
2) No reimbursement will be allowed for any costs of
extension of water and sewer facilities, or
increases in size thereof, for which the CITY has
agreed to provide reimbursement as described
elsewhere in this agreement.
3) Costs associated with extensions of water and sewer
facilities to future users shall be determined by
Crosswell Development LLC's engineer and shall be
provided to the Director of Public Works for review
and concurrence that said costs are appropriate for
reimbursement. Said costs shall be the actual costs
of construction, inclusive of engineering and
inspection costs, and shall be submitted as
specified within thirty (30) days of substantial
completion of the work.
4) A developer's extension agreement shall be prepared
by Crosswell Development LLC's engineer and
17
submitted to the Director of Public Works for
review and concurrence. The agreement shall
identify the costs to be reimbursed, the properties
benefitted by the extended utilities, and the
proportionate cost to be reimbursed by each
benefitted property upon connection to the extended
utilities. The agreement shall identify the
recommended method for apportioning reimbursable
costs between the benefitted properties. Said
method shall be the same for all properties. The
term of this agreement shall not exceed a period of
seven (7) years.
5) Upon concurrence, the Director of Public Works
shall submit the proposed developer's extension
agreement to the Kalispell City Council for
approval.
6) Future extensions by the CITY of utility facilities
covered by this PUD agreement shall not be subject
to the cost reimbursement outlined in this section.
V. AMENDMENT OR MODIFICATIONS OF
5.01 Amendment or Modification Procedures
This Development Agreement may be amended or modified only by
application of Crosswell Development LLC, in accordance with
the procedures set forth herein. Applications for amendment or
modification may be made to the City of Kalispell Site Review
Committee.
(A) Modifications of this agreement and the attachments
hereto which are deemed by said Site Review Committee to
be minor modifications shall require only the consent of
the Site Review Committee and shall not require the
consent of the City Council or any other public agency.
Said minor modifications shall include, but are not
limited to, adjustments in size, location and orientation
of specific building pads or other facilities and
amenities, provided that said minor modifications do not
alter the total developed area or number of pads or
amenities as shown on the Master Site Plan.
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(B) All amendments and modifications of this Agreement, other
than minor modifications, shall require the approval of
the City Council.
(C) All applications for modifications or amendments of the
Agreement shall be filed with the Site Review Committee
and the Site Review Committee shall promptly, within 10
days, determine whether the modifications are major or
minor.
(D) The Site Review Committee shall make its determinations
with respect to any application for minor modifications
subject to this Section within 15 days after it
determines the application to be subject to said minor
modification.
(E) If the amendment or modification requested is of such a
nature as to require approval of the City Council, the
Site Review Committee shall refer the matter to the City
Council within fifteen (15) days after it determines the
matter to require Council review.
(F) Crosswell Development LLC may appeal the decision of the
Site Review Committee to the City Manager or City
Council, who may affirm, reverse or modify the Site
Review Committee decision.
VI. MISCELLANEOUS
6.01 Severability
In the event that any provisions of this Agreement shall be
deemed, decreed, adjudged or determined to be invalid or
unlawful by a court of competent jurisdiction, such provision
shall be severable and the remainder of this Agreement shall
continue to be of full force and effect.
6.02 Recordation
This Agreement shall be recorded in the Office of the Flathead
County Clerk and Recorder.
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a
6.03 Entire Agreement — Primacy
This Agreement and the attachments, exhibits, plans, and
reports referenced herein constitute the entire Agreement
between the parties and may only be amended as set forth
herein. In the event during the term of this Agreement, there
is a variance between the provisions of this Agreement and any
drawing or document submitted prior to execution of this
Agreement, this Agreement shall take precedence.
6.04 Integration
This Agreement, together with any attached exhibits and any
addenda or amendments signed by the parties, integrates all
negotiations and previous agreements between the parties and
supercedes any other written or oral agreements or
representations between the parties. This Agreement can be
modified only in writing, signed by all parties hereto. Not
withstanding the forgoing or anything else contained in this
Agreement, the Sale and Purchase Agreement between PACK and
Crosswell Development LLC, dated September 18, 2000 and as
amended on December 26, 2000, and the provisions thereof shall
remain in full force and effect.
6.05 Binding Effect
This Agreement shall be binding upon and inure to the benefit
of the respective parties, heirs, successors and assigns.
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6.06 Substitution of Parties
Parties acknowledge that Crosswell Development LLC is in the
process of forming a Montana legal entity. Upon completion of
that action, the entity shall sign a document assuming all of
the obligations and rights of Crosswell Development LLC. Upon
delivery of that document to the CITY and the recording of an
executed copy thereof, that entity shall be substituted in
full for Crosswell Development LLC in this Agreement.
Dated this _ day of
CROSSWELL DEVELOPMENT LLC
Its:
CITY OF KALISPELL
By:
Its:
STATE OF MONTANA )
) ss.
County of Flathead )
2001.
PACK AND COMPANY
Its:
Attest:
By:
Its:
On this day of 1 2001, before me the
undersigned, a Notary Public for the State of Montana, personally
appeared known to me to be the authorized
representative for Crosswell Development LLC, the person whose name
is subscribed to the foregoing instrument and acknowledged to me
that he/she executed the same on behalf of the said entity.
Notary Public for the State of Montana
Residing at
My Commission Expires
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STATE OF MONTANA )
) ss.
County of Flathead )
On this day of 1 2001, before me the
undersigned, a Notary Public for the State of Montana, personally
appeared known to me to be the authorized
representative for PACK AND COMPANY, the person whose name is
subscribed to the foregoing instrument and acknowledged to me that
he/she executed the same on behalf of the said entity.
Notary Public for the State of Montana
Residing at
My Commission Expires
STATE OF MONTANA )
) ss.
County of Flathead )
On this day of , 2001, before me the undersigned,
a Notary Public for the State of Montana, personally appeared
known to me to be the
for the CITY of Kalispell, and the
for the CITY of Kalispell, the persons
whose names are subscribed to the foregoing instrument and
acknowledged to me that he/she executed the same on behalf of the
CITY of Kalispell.
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Notary Public for the State of Montana
Residing at
My Commission Expires
22
INDEX OF EXHIBITS
Exhibit A: Title commitment or title insurance report containing
the legal description of the premises.
Exhibit B: PUD Application of Crosswell Development; FRDO Staff
Report #KPUD 00-1; Report of the City -County Planning Board based
upon its meeting on January 9, 2001; and the Conditions of Approval
of the PUD as passed by the Kalispell City Council on February 20,
2001.
Exhibit C: Master Site Plan.
Exhibit D: Description of Infrastructure and the costs for bonding
purposes.
Exhibit E: List of materials and exterior building treatments.
Exhibit F: Draft Covenants.
Exhibit G: Remediation Area.
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