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2. Resolution 4661 - Annexation - DNRC - Section 36Tri-City Planning Office 17 Second Street East - Suite 211 Kalispell, Montana 59901 Phone: (406) 751-1850 Fax: (406) 751-1858 tricity@centurytel.net REPORT TO: Kalispell Mayor and City Council FROM: Narda A. Wilson, Senior Planner Chris A. Kukulski, City Manager SUBJECT Annexation and Initial PUD Zoning - DNRC Section 36 MEETING DATE: October 1, 2001 BACKGROUND: The Montana Department of Natural Resources and Conservation (DNRC) has requested annexation into the City of Kalispell and an initial zoning designation of B-5, Commercial / Industrial, R-5, Residential / Professional Office, and R-4, Residential, with a Planned Unit Development (PUD), overlay on approximately 454.4 acres otherwise known as Section 36. The State DNRC manages this property as part of the State School Trust and is interested in developing it in accordance with the Section 36 Neighborhood Plan and the planning objectives for the property. The property is located on the west side of US Hwy 93 with Four Mile Drive on the south, West Reserve Drive on the north and Stillwater Road on the west. The PUD addresses the development of four land use areas identified on the section of land which are designated as a specific development pod. A Mixed Commercial POD is identified on the area adjacent to US Hwy 93 between the Hwy 93 Bypass alignment and the center section line that contains approximately 118 acres. A Mixed Professional POD is identified for the area located in the north half of the section, north and west of the US Hwy 93 Bypass alignment which contains approximately 184 acres. A Mixed Residential POD is proposed for the area in the southwest quarter of the section which contains approximately 152 acres. The Youth Athletic Complex generally occupies the southeast quarter of the section and was previously annexed into the city of Kalispell during its initial development phase. The property proposed for annexation contains a total of 454.4 acres. Prior to developing the annexation and PUD proposal, the Montana Department of Natural Resources was subject to the Montana Environmental Protection Act (MEPA) which included the preparation of an Environmental Impact Statement (EIS) to analyze alternative plans for the school section. The EIS analyzed the impacts related to traffic, water and sewer facilities and mitigation needs. Certain elements of the Section 36 Neighborhood Plan were modified as a result of the MEPA process and the adopted Record of Decision. The details of the MEPA process resultant changes are included in the project narrative. The changes as a result of the MEPA process include a preference for the development of high-tech industries as opposed to general commercial and a provision for an elementary school and high school. The proposed zoning and PUD is in substantial compliance with the Section 36 Neighborhood Plan and furthers its goals and polices. Providing Community Planning Assistance To: • City of Kalispell • City of Columbia Falls • City of Whitefish DNRC Annexation and Initial Zoning September 20, 2001 Page 2 Part of the final analysis included the concept of a PUD overlay with City zoning for implementation of the plan. A PUD for the site was developed to the greatest extend possible and has been filed concurrently with the annexation request and will be considered the initial zoning of the property upon annexation to the city of Kalispell. The Kalispell Zoning Ordinance requires a public hearing before the planning board and the city council as part of the PUD process. The Kalispell City -County Planning Board held a public hearing at their regular meeting of September 11, 2001. A motion passed on a vote of six in favor and two opposed to forward a recommendation that initial zoning for this property should be the proposed zoning with a PUD overlay. The zoning ordinances states that the city council has 60 days after receiving the recommendation from the planning board to hold a public hearing on the PUD. A resolution annexing the property and a resolution of intent to hold a public hearing should be passed by the council. After holding the public hearing, the first reading of the ordinance adopting the zoning and the PUD could be passed with consideration given to the comments presented at the public hearing. Subsequent to the public hearing and adoption of the first reading, the development agreement would be finalized and a second reading adopting the zoning and PUD would be in order. A submittal package has been given to the council and the interim city attorney for review that includes a petition to annex, development agreement, site plan designating the development pods and a narrative overview of the process undertaken by the DNRC. RECOMMENDATION: A motion to adopt the resolution annexing the property and a resolution of intent to hold a public hearing to consider the proposed PUD would be in order. FISCAL EFFECTS: Minor positive impacts once developed. ALTERNATIVES: As suggested by the city council. (� Narda A. Wilson Chris A. Kukulski Senior Planner City Manager Report compiled: September 20, 2001 c: Theresa White, Kalispell City Clerk Attachments: Transmittal letter Petition to annex and legal Staff report KA-01-4 and application materials Draft minutes from 9/ 11 /01 planning board meeting RESOLUTION NO. 4661 A RESOLUTION TO PROVIDE FOR THE ALTERATION OF THE BOUNDARIES OF THE CITY OF KALISPELL BY INCLUDING THEREIN, AS AN ANNEXATION, APPROXIMATELY 454.4 ACRES LOCATED ON THE WEST SIDE OF HIGHWAY 93 NORTH BORDERED BY FOUR MILE DRIVE ON THE SOUTH, WEST RESERVE DRIVE ON THE NORTH AND STILLWATER ROAD ON THE WEST, TO BE KNOWN AS THE SECTION 36 ADDITION NO. 306; AND TO DECLARE AN EFFECTIVE DATE. WHEREAS, the City of Kalispell has received a petition from Jon Dahlberg, Area Manager of the Northwest Land Office of the Department of Natural Resources and Conservation, the owners of the property described as approximately 454.4 acres of the southwest quarter of the northwest quarter and that portion of the northeast quarter lying westerly of the westerly right of way line of US Highway 93 as shown on Federal Aid Project Nos. F 5-3(32)115 and F 5- 3(24)115, excepting therefrom the southwest quarter of the southwest quarter of the northwest quarter and the northwest quarter of the northwest quarter of the southwest quarter all in Section 36, Township 29 North, Range 22 West, P.M.M., Flathead County, Montana, requesting that the City of Kalispell annex the territory into the City, and WHEREAS, the Tri-City Planning Office has made a report on the Department of Natural Resources and Conservation Annexation and Zoning Request, #KA-01-4, dated September 4, 2001, and WHEREAS, the Kalispell City -County Planning Board and Zoning Commission recommended that the territory be annexed into the City of Kalispell, and WHEREAS, on April 3, 1994 the City Council of the City of Kalispell adopted, pursuant to Section 7-2-4610, Montana Code Annotated, an Extension of Services Plan which anticipates development of City services for approximately five years in the future, and WHEREAS, said proposed annexation complies with said extension of services plan and provides for financing the extension of municipal services or maintenance of existing services by utilizing funds allocated and expended, pursuant to the annual City budget without incurring additional bonded indebtedness, and WHEREAS, the area is included within and conforms to the Kalispell City -County Master Plan, and WHEREAS, the City of Kalispell desires to annex said property in accordance with Title 7, Chapter 2, Part 46, Montana Code Annotated. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF KALISPELL AS FOLLOWS: SECTION I. That all the real property as is more particularly described as approximately 454.4 acres of the southwest quarter of the northwest quarter and that portion of the northeast quarter lying westerly of the westerly right of way line of US Highway 93 as shown on Federal Aid Project Nos. F 5-3(32)115 and F 5-3(24)115, excepting therefrom the southwest quarter of the southwest quarter of the northwest quarter and the northwest quarter of the northwest quarter of the southwest quarter of Section 36, Township 29 North, Range 22 West, P.M.M., Flathead County, Montana, shall be annexed to the City of Kalispell and the boundary of the City is altered to so provide, and shall be known as Section 36 Addition No. 306. SECTION II. Upon the effective date of this Resolution, the City Clerk is directed to make and certify, under the seal of the City a copy of the record of these proceedings as are entered on the minutes of the City Council and file said documents with the Flathead County Clerk and Recorder. From and after the date of filing of said documents as prepared by the City Clerk, or on the effective date hereof, whichever shall occur later, said annexed territory is part of the City of Kalispell and its citizens and property shall be subject to all debts, laws and ordinances and regulations in force in the City of Kalispell and shall be entitled to the same privileges and benefits as are other parts of the City. SECTION III. This Resolution shall be effective 30 days from and after its passage by the City Council. PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR THIS 1ST DAY OF OCTOBER, 2001. Wm. E. Boharski Mayor Attest: Theresa White City Clerk Tri-City Planning Office 17 Second Street East - Suite 211 Kalispell, Montana 59901 Phone: (406) 751-1850 Fax: (406) 751-1858 tricitygcenturytel.net September 20, 2001 Chris Kukulski, City Manager City of Kalispell P.O. Box 1997 Kalispell, MT 59903 Re: Annexation and Initial PUD Zoning - DNRC Section 36 Dear Chris: The Kalispell City -County Planning Board met on September 11, 2001, and held a public hearing to consider a request by the Montana Department of Natural Resources and Conservation (DNRC) for annexation and initial zoning on property located on the west side of Hwy 93 between Four Mile Drive and West Evergreen Drive. The applicants are proposing a Planned Unit Development (PUD) overlay on three development "pods" containing approximately 454 acres. The proposed zoning and PUD overlay is intended to reflect and implement the goals and polices of the Section 36 Neighborhood Plan. Tom Jentz representing the Tri-City Planning Office, presented staff report KA-01-4, evaluating the proposed zoning. He noted that this proposal is one more step in the implementation of the development plan for the property. He noted that the southeast quarter of the section was annexed to the City with the ballfield development and this annexed the rest of the section. At the public hearing David Green, representing DNRC, spoke in favor of the proposal. He noted the State had completed the MEPA process and there was substantial information available on the future needs of the infrastructure. The first project that was being considered was a high-tech business park which would require subdivision review. After the public hearing the board discussed the proposal, taking into consideration the neighborhood plan for the property. A motion was made and passed on a vote of six in favor and two opposed that the that initial zoning for this property should be of B-5, Commercial / Industrial, R-5, Residential / Professional Office, and R-4, Residential, with a Planned Unit Development (PUD) overlay. Please schedule this matter for the October 1, 2001 regular city council meeting. You may contact this board or Narda Wilson at the Tri-City Planning Office if you have any questions regarding this matter. Providing Community Planning Assistance To: • City of Kalispell • City of Columbia Falls • City of Whitefish DNRC Annexation and Initial Zoning September 20, 2001 Page 2 Sincerely Kalispell City -County Planning Board GS/NW Attachments: Original petition to annex and legal description Staff report KA-01-4 Draft minutes 9/ 11/01 planning board meeting c w/ Att: Theresa White, Kalispell City Clerk c w/o Att: David Greer, DNRC, 2250 Hwy 93, Kalispell, MT 59901 Jon Dahlberg, DNRC, 2250 Hwy 93, Kalispell, MT 59901 H:\FRDO\TRANSMIT\KALISPEL\2001\KA01-4.DOC KALISPELL CITY -COUNTY PLANNING BOARD MINUTES OF MEETING SEPTEMBER 11, 2001 CITY PROJECTS CALL TO ORDER AND Chairman Greg Stevens called the meeting to order at 7:00 PM. ROLL CALL Members present were: Don Garberg, Dale Pierce, Ron Van Natta, Rob Heinecke, Bill Rice, Greg Stevens; Don Mann, and Brian Sipe. Don Hines had an excused absence. Tom Jentz represented the Tri-City Planning Office. There were approximately 15 people in the audience. APPROVAL OF MINUTES There was a motion by Pierce and second by Mann to approve the OF AUGUST 14, 2001 minutes of the meeting of the city portion of August 14, 2001 as AND AUGUST 21, 2001 presented and the minutes of the meeting of August 21, 2001 as amended. DNRC ANNEXATION Ss A request by the Montana Department of Natural Resources and ZONING/ PLANNED Conservation (DNRC) for annexation into the City of Kalispell and UNIT DEVELOPMENT an initial zoning designation of B-5, Commercial / Industrial, R-5, Residential / Professional Office, and R-4, Residential, with a Planned Unit Development (PUD), overlay on approximately 454.4 acres otherwise known as Section 36. STAFF REPORT Tom Jentz of the Tri-City Planning Office gave a presentation of staff report #KA-01-4, stating this was a request by the Montana Department of Natural Resources and Conservation (DNRC) for annexation into the City of Kalispell and an initial zoning designation of B-5, Commercial / Industrial, R-5, Residential / Professional Office, and R-4, Residential, with a Planned Unit Development (PUD), overlay on approximately 454.4 acres otherwise known as Section 36. Jentz stated that the State DNRC manages this property as part of the State School Trust and is interested in developing it in accordance with the Section 36 Neighborhood Plan and the planning objectives for the property. Jentz said the applicants were proposing four land use areas on the entire section of land designated as a specific development pod; a Mixed Commercial POD on the area adjacent to US Hwy 93 between the Hwy 93 Bypass alignment and the center section line that contains approximately 118 acres; a Mixed Professional POD for the area located in the north half of the section, north and west of the US Hwy 93 Bypass alignment which contains approximately 184 acres; and a Mixed Residential POD proposed for the area in the southwest quarter of the section that contains approximately 152 acres. Stevens said that according to the staff report the PUD overlay is not in accordance with the Neighborhood Plan. Jentz said David Greer would address that issue Kalispell City -County Planning Board Minutes of the meeting of September 11, 2001 Page 1 of 10 APPLICANT/AGENCIES David Greer, staff planner of the Department of Natural Resources, spoke in favor of the proposal saying the project was started in 1998 and they still had to go through subdivision review. Greer said the project was still being called Section 36 and would like to go on record and have it called the Spring Prairie PUD because the tree that is in the ball field complex is called the Spring Prairie tree. Greer said in 1999 a Neighborhood Plan had been approved, and as part of that plan a memorandum of understanding had been done with the City and County which said that any development that they did would adhere to the City of Kalispell's design standards for roads, water, sewer, etc. and that DNRC would pay both personal and property taxes. Greer said that all improvements on the property would be the responsibility of the lessees. Greer said they were working with Hampstead Partners out of California who are still interested in building a 60-acre tech park and they were trying to move this process along to accommodate that particular development. Greer said the first part of the application was a petition to annex and they were asking for the entire project to be annexed and zoned. Greer said in developing the proposal they had to choose what zoning would be appropriate and that was why they were proposing many performance standards so that this would present a very nice entry to the City of Kalispell. Greer said the City didn't have any zoning classifications that would work and after they had gone through the environmental impact process, it had been suggested that they do it as a PUD overlay. Greer said with the PUD overlay the commercial area would be zoned B-5, which allows hundreds uses, but the PUD restricts it to 19 possible uses instead. Greer said the project would be phased over the next 40-50 years, and they wanted to anticipate future needs. Greer said the school district was interested in one of the sites for a high school and grade school; and they had prioritized technical uses over retail commercial uses. Greer said they would be back before Board to create lease lots which will had to go through subdivision review and at that time they would have another opportunity to review the extension of the infrastructure to the property. Greer said one thing they had learned from the environmental impact statement was that this area north of Kalispell is already water deficient, and as development occurred they would have to compensate for those deficiencies, and sometime in the future they may have to look at having a well and storage stank which would tie into the City water supply system or they may have to develop a community water system to service the needs of Section 36. Kalispell City -County Planning Board Minutes of the meeting of September 11, 2001 Page 2 of 10 Stevens asked if this proposal complied with the adopted plan or the amended plan. Greer said in regard to the deviations from the original neighborhood plan the response from the MEPA was a desire to promote technical industry over retail, so they had prioritized technical industry in one area, and if over the next 40 years there were an opportunity to expand, one area would be held in anticipation of future need. Greer said it was not amending the neighborhood plan because they would not do anything until they received permission to do so. Stevens asked how that philosophy jibed with the enabling act of the Montana State constitution to acquire the full -appraised fair market value of the lands to the School Trust. Greer said the land value would not change whether it was commercial or technical. Stevens said he didn't understand this process because when the master plan is amended with a neighborhood plan, there are a series of public hearings before the Planning Board, the City Council and the County Commissioners, and when they amend a neighborhood plan, there are also public hearings before the same boards and governing bodies. Stevens said the staff report is telling him that there are deviations from the neighborhood plan by virtue of the PUD, and when he read the PUD it was essentially telling him that DNRC's decision for the EIS requires certain modifications to the Section 36 Neighborhood Plan. Stevens asked how they were avoiding amending the neighborhood plan with participation by the County Commissioners and that they were doing a PUD before they had a neighborhood plan that would accommodate it. Greer said the staff report meant that the deviations were more restrictive that what had originally been anticipated in the original neighborhood plan. Greer said there was a lot more clarity regarding annexation, the use of City services, and enforcement of architectural control. Greer said the only question was the holding area for future technical uses, but a tech park is only professional offices, and if there was movement into that area, it was at least 10 years away, and if at that time it was necessary to do an amendment to the plan they would. Stevens said it may be more restrictive than the approved plan that the Board recommended approval for and the plan that the County Commissioners approved, but it seemed to him that the School Trust fund was being put on the second burner and that the whole project was designed not to increase revenue to the maximum extent to the School Trust fund, but to meet someone's particular aesthetic designs for that piece of property, and the School Trust fund should have been moved to the first burner. Kalispell City -County Planning Board Minutes of the meeting of September 11, 2001 Page 3 of 10 Greer said with State government and the requirement to do a MEPA analysis, they also had to follow that process which sometimes softens certain intentions to satisfy the State environmental law. Greer said if the tech was successful they wanted to make sure that they had an opportunity for it to proceed, and that after five years it wasn't successful, then the original retail and commercial will be allowed to go in. Greer said another threshold was that if the tech meets the 40,000 thousand square foot allowance and then it stops so that noting happens between years 5 & 10, then the original mixed commercial and retail will go back in. Stevens said page 7 of the PUD said the Section 36 neighborhood plan adopted in 1999 was modified by the record of decision. Stevens said that contrary to the MOU and everything they had been told before that they could unilaterally modify a neighborhood plan, that they didn't have to go before the Commissioners or the regular process of amending the master plan like every one else had to do. Stevens said he finds that disturbing in the sense that when the process first started it was to include every body, and they were now evading the Commissioners involvement. Stevens said page 4 says essentially the same thing. Stevens said at this point in the hearing process he would vote against it because a neighborhood plan should be recommended by the Commissioners and Council and this was circumventing the system. Greer said there was no difference in the plan, it was being restricted even further than it was previously. Greer said the uses were allowed in the adopted plan, and they were only prioritizing them now. Stevens asked if DNRC paid rent. Greer said the EIS showed that they had been granted that piece years ago as an easement, but they had discovered they occupy a little more land then they had thought so they would have to start paying rent on the land they weren't deeded. Stevens asked if the area designated as a state campus would generate funds to the schools. Greer said anything that went on that piece of ground would have to make some type of payment to the School Trust fund. Greer said if a school went on there, they would buy a permanent easement from them, but they would be a tax-exempt agency and wouldn't pay property taxes, but they would have to pay full market value for the land. Sipe asked how the residential homes would be developed. Greer said they struggled with that through the process because how could they do that if they were leasing land. Greer said they had decided to prioritize that area for exchange so that someone could give them land someplace else in exchange for that land so Kalispell City -County Planning Board Minutes of the meeting of September 11, 2001 Page 4 of 10 that it could go to private ownership and be developed in accordance with this plan. Sipe asked how that would help the School Trust fund. Greer said they would have to get the equivalent value or more somewhere else to compensate the trust. Sipe said it was hard for him to see why anyone would lease state lands when there was so much land in the county, because the banks would not back them, and asked now that it was more restrictive how it would help the School Trust. Greer said they were doing the same in Bozeman and Great Falls and because of the location people were will to lease the land. Greer said it didn't work well for residential, which is why they chose to prioritize the southwest quarter for land exchange. Garberg said leasing commercial land was very common in other places and that under the right criteria the banking community would go for a long-term lease. Jeanie Fairbanks, from the Special Uses Bureau in Missoula, stated she was a certified appraiser and spoke in favor of the project saying she believed they could get a fair market value through leasing because the property is not for sale, but the location is right. Fairbanks said it was a financing tool and the location created the market for the state lands. PUBLIC HEARING The public hearing was opened to those who wished to speak on the proposal. PROPONENTS Mayre Flowers, Citizens for a Better Flathead, spoke generally in favor of the plan and commended the DNRC on the thoroughness of the PUD. Flowers said that the additional land that had been set aside for technology should be developed to provide jobs for the community and provide a stable economy. Flowers said in order for this to be successful and if it was appropriate the City and State should work together to recruit the type of economic development to make the plan a success. Flowers said on page 9, Condition #5 referred to the maintenance plan and wanted to be sure there was maintenance for the duration of the development. Flowers said on page 8, Item #5 referenced that the city attorney was to review this document, but she didn't see a letter or any comment from the city the attorney. Flowers said it needed to be reviewed to ensure there were safeguards so there was not another situation like the Valley Dome. Kalispell City -County Planning Board Minutes of the meeting of September 11, 2001 Page 5 of 10 Flowers said on page 9, Condition #8 referred to pedestrian/bike way and she would like to see them included in the recommendation. Flowers said page 6 of the Plan referred to the architectural standards of buildings and asked if there were any plan to put alleys in the development so that the backs of buildings can be buffered from the commercial to the residential. Flowers said page 27 of the Plan references that the sidewalks upon completion will become under ownership of the City and asked if this was normal procedure. Flowers said she feels the plan, especially the residential component, added a much stronger viability to it and she appreciated the process that this has gone through. OPPONENTS Tom Chokovsky, presiding overseer for Valley View Jehovah Witnesses, stated he was not for or against the proposal but did have concerns regarding safety. Chokovsky said their hall was located near the site, and when they had applied in 1992 for a road easement, they had wanted to put their road where the new road is being proposed, and they were told they couldn't because of the safety and clear visibility. Chokovsky said the Plan would provide traffic lights on the other heavily traveled road, but there were no sidewalks on the north side of West Reserve, and they cautioned their people to be careful when they turned into the hall because of the poor visibility. Chokovsky said if visibility was a problem in 1992, then how were they going to handle this additional traffic. Stevens asked who would determine where the access went. Jentz said the road was a state secondary road, and when the access was put in both the State and the County would do a traffic study. Jentz said if it were not the best place for the access, it would be put in the safest place. MOTION Van Natta moved that the Kalispell City -County Planning Board adopt Staff Report #KA-01-4 as fmdings of fact and recommend to the Kalispell City Council that upon annexation the property be giving the proposed zoning with a PUD overlay subject to the 11 conditions as outlined. Rice seconded the motion. BOARD DISCUSSION Van Natta said he would vote in support of the project, and that the State had done a wonderful job in analyzing what could and should happen on this land and did not feel that the master plan is being amended inappropriately or that it was even being amended. Van Natta said if the wording in the staff report was wrong perhaps they could amend it. Stevens said the terminology throughout the whole PUD says it deviates from the neighborhood plan and the language is appropriate. Kalispell City -County Planning Board Minutes of the meeting of September 11, 2001 Page 6 of 10 Rice called for the question. ROLL CALL Rice, Garberg, Pierce, Heinecke, Mann, and Van Natta voted aye. Stevens and Sipe voted nay. The motion passed on a 6-2 vote. GLACIER VILLAGE Sipe excused himself from the Board. GREENS PHASE VI AND VII ANNEXATION A request by Glacier Village Greens Inc. for annexation into the city of Kalispell and an initial zoning designation of R-4, Residential, for Phase VI and Phase VII which contain approximately 8.8 acres. STAFF REPORT Tom Jentz of the Tri-City Planning Office gave a presentation of staff report #KA-01-5, stating that the City of Kalispell has initiated the annexation of the two subdivisions that have been final platted as continued development of Glacier Village Greens. Jentz said that a petition for annexation request by Glacier Village Greens Inc. was submitted with the plats as a requirement. Jentz said Glacier Village Greens Phase VI has 21 lots and two parks and contains approximately 4.698 acres and that Glacier Village Greens Phase VII has 17 lots and contains approximately 4.109 acres. Jentz said the applicants were requesting an initial zoning designation of R-4, Residential, for both Phase VI and Phase VII. Jentz said Tom Reese, president of the Homeowners Association had stopped by the office that afternoon and had said some of the property owners were concerned that the parks would become city property. Jentz said he had told Reese the parks will be annexed, but they will still be maintained and managed by the homeowners association. APPLICANTS/AGENCIES George Schultz, applicant, spoke in opposition saying he hadn't been aware until a few days ago that the property was being annexed. Shultz said he hadn't signed anything, that the City was blackmailing them because if they didn't annex they couldn't file the final plat and they wouldn't be able to develop the lots. Van Natta said there was a petition signed by Glacier Village Greens that requested annexation. Schultz said the only thing they signed was the petition to annex, which Duane Bitney had signed because if they didn't the City won't file their plats. Stevens said they had a petition that was signed in 2001 and that it was for Phase 6. Schultz said the City had opted not to annex Phase 6 until Phase 7 was done. Schultz said the staff report says he requested annexation and he didn't ask, he was being made to. Rice asked Schultz why he didn't want the property annexed. Kalispell City -County Planning Board Minutes of the meeting of September 11, 2001 Page 7 of 10 PETITION NO.: PETITION TO ANNEX. AND NOTICE OF WITHDRAWAL FROM RURAL FIRE DISTRICT The undersigned hereinafter referred to as Petitioner(s) respectfully petition the City Council of the City of Kalispell for annexation of the real property described below into the City of Kalispell. The Petitioner(s) requesting City of Kalispell annexation of the property described herein and further described in Exhibit A hereby mutually agree with the City of Kalispell that immediately upon annexation of the land all City of Kalispell municipal services will be provided to the property described herein on substantially the same basis and in the same manner as such services are provided or made available to other properties within the rest of the municipality. Petitioner(s) hereby state that there is no need to prepare a Municipal Annexation Service Plan for this annexation pursuant to Section 7-2-4610, M.C.A. since the parties are in agreement as to the provision of municipal services to the property requested to be annexed. The Petitioner(s) further herein express an intent to have the property as herein described withdrawn from the West Valley Rural Fire District under the provisions of Section 7-33-2127, Montana Code Annotated; and that incorporated into this Petition to Annex is the Notice requirement pursuant to said Section; and that upon proper adoption of an ordinance or resolution of annexation by the City Council of the City of Kalispell, the property shall be detracted from said district. In the event the property is not immediately annexed, the Petitioner(s) further agree(s) that this covenant shall run to, with, and be binding upon the title of the said real property, and shall be binding upon our heirs, assigns, successors in interest, purchasers, and any and all subsequent holders or owners of the above described property. This City hereby agrees to allow Petitioner(s) to connect and receive the utilities from the City of Kalispell. Qq1A Ut4 .13, 200 J Peti oner/Owner V Date Department of Natural Resources & Conservation, State of Montana STATE OF MONTANA ) ss County of Flathead County On this I S day of �tS , � II , before me, the undersigned, a Notary Public for the State of Montana, personally appeared Jo�x A. k ( i6e r5 known to ape to be"the person whose name is subscribed to the foregoing instrument and acknowledged tr3 me thatte/she executed the same. IN WrfASS WHEREOF, I have hereunto set my hand and a ffixed my Notary Seal the day and year in this certificate first above written. J� Notary Public, State o`f Montana Residing at U6s% My Commission expires: 10 STATE OF MONTANA ) ss County of Flathead County On this day of , before me, the undersigned, a Notary Public for the State of Montana, personally appeared known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he/she executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notary Seal the day and year in this certificate first above written. STATE OF MONTANA ) ss County of Flathead Notary Public, State of Montana Residing at My Commission expires: On this day of I , before me, the undersigned, a Notary Public for The State of Montana, personally appeared and ,the and respectively, of the corporation that executed the foregoing instrument, and the persons who executed said instrument on behalf of said corporation, and acknowledged to me that such corporation executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notary Seal the day and year in this certificate first above written. Notary Public, State of Montana Residing at My Commission expires MONTANA DEPT OF NATURAL RESOURCES AND CONSERVATION (DNRC) TRI-CITY PLANNING OFFICE STAFF REPORT #B:A 01-4 SEPTEMBER 4, 2001 A report to the Kalispell City -County Planning Board and the Kalispell City Council regarding a request for annexation and a Planned Unit Development (PUD) zoning overlay. A public hearing has been scheduled before the Kalispell City -County Planning Board for September 11, 2001 beginning at 7:00 PM in the Kalispell City Council Chambers to consider appropriate zoning upon annexation. The planning board will forward a recommendation to the Kalispell City Council for final action. BACKGROUND INFORMATION- This is a request by the Montana Department of Natural Resources and Conservation (DNRC) for annexation into the City of Kalispell with a Planned Unit Development (PUD), overlay on approximately 454.4 acres otherwise known as Section 36. This property will be annexed under the provisions of Sections 7-2-4601 through 7-2-4610, M.C.A., Annexation by Petition. A. Petitioner and Owners: DNRC Jon Dahlberg 2205 Hwy 93 North Kalispell, MT 59901 (406) 751-2240 DNRC David Greer 2205 Hwy 93 North Kalispell, MT 59901 (406) 751-2240 B. Nature of the Request: A request by the Montana Department of Natural Resources and Conservation (DNRC) for annexation into the City of Kalispell and an initial zoning designation of B-5, Commercial / Industrial, R-5, Residential / Professional Office, and R-4, Residential, with a Planned Unit Development (PUD), overlay on approximately 454.4 acres otherwise known as Section 36. The State DNRC manages this property as part of the State School Trust and is interested in developing it in accordance with the Section 36 Neighborhood Plan and the planning objectives for the property. There are four land use areas identified on the entire section of land designated as a specific development pod. A Mixed Commercial POD is identified on the area adjacent to US Hwy 93 between the Hwy 93 Bypass alignment and the center section line that contains approximately 118 acres. A Mixed Professional POD is identified for the area located in the north half of the section, north and west of the US Hwy 93 Bypass alignment which contains approximately 184 acres. A Mixed Residential POD is proposed for the area in the southwest quarter of the section which contains approximately 152 acres. The Youth Athletic Complex generally occupies the southeast quarter of the section and was previously annexed into the city of Kalispell during its initial development phase. The property proposed for annexation contains a total of 454.4 acres and lies on the west side of US Hwy 93 with Four Mile Drive on the south, West Reserve Drive on the north and Stillwater Road on the west. Page 1 of 9 Prior to developing the annexation and PUD proposal, the Montana Department of Natural Resources was subject to the Montana Environmental Protection Act (MEPA) which included the preparation of an Environmental Impact Statement (EIS) to analyze alternative plans for the school section. The EIS analyzed the impacts related to traffic, water and sewer facilities and mitigation needs. Certain elements of the Section 36 Neighborhood Plan were modified as a result of the MEPA process and the adopted Record of Decision. The details of the MEPA process resultant changes are included in the project narrative. Part of the final analysis included the concept of a PUD overlay with City zoning. A planned unit development (PUD) for the site was developed to the greatest extend possible and has been filed concurrently with the annexation request and will be considered the initial zoning of the property upon annexation to the city of Kalispell. C. Location and Legal Description of Property: The property being proposed for annexation and the PUD zoning is located on the west side of US Hwy 93 with Four Mile Drive on the south, West Reserve Drive on the north and Stillwater Road on the west. The property can be described as the southwest quarter of the northwest quarter and that portion of the northeast quarter lying westerly of the westerly right of way line of US Highway 93 as shown on Federal Aid Project Nos. F 5-3(32)115 and F 5- 3(24)115, excepting there from the southwest quarter of the southwest quarter of the northwest quarter and the northwest quarter of the northwest quarter of the southwest quarter all in Section 36, Township 29 North, Range 22 West, PM.M., Flathead County, Montana. D. Existing Land Use and Zoning: The site is currently being used for agricultural purposes under a lease agreement. Currently this property is in the County zoning jurisdiction and is zoned AG-80, an Agricultural zoning district which has a minimum lot size requirement of 80 acres and generally anticipates large scale agricultural production. E. Adjacent Land Uses and Zoning: North: Single family and multi -family residential, County R-2 and RA-1 zoning South: Undeveloped, single family homes, City ball fields and agricultural, City P-1, County R-1, SAG-10 and R-2 East: Home Depot, Ole's, college and agricultural, City B-2 / PUD and R-1, County 13-1 and SAG-10 zoning West: Agricultural, AG-80 zoning F. General Land Use Character: The general land use character of this area is a mix of rural residential, suburban residential, high density residential, commercial, industrial and agricultural. It lies in a transition area between the rural and urban areas of north Kalispell. G. Utilities and Public Services: Once annexed City services would be available to this site. Sewer: City of Kalispell Water: City of Kalispell Refuse: City of Kalispell Electricity: Flathead Electric Cooperative Telephone: CenturyTel Page 2 of 9 Schools: School District #5 Fire: Kalispell Fire Department Police: City of Kalispell Relation to Zoning Requirements: The applicants are proposing a zoning designation of B-5, Industrial / Commercial, R-5, Residential / Professional Office, and R-4, Two Family Residential, with a Planned Unit Development (PUD), overlay on approximately 454.4 acres. The PUD would identify three distinct development areas with an internal road system established with a limit the permitted and conditionally permitted uses listed in the various zoning districts. The specific terms of the development proposal are outlined in the development agreement and the PUD application. The PUD development proposal has no deviations from the zoning that relate to the various development pods. Lots have not been created for lease, but would be subject to subdivision review and the design standards of the City. The statutory basis for reviewing a change in zoning is set forth by 76-2-205, M.C.A. and the Kalispell Zoning Ordinance. Findings of fact for the zone change request are discussed relative to the itemized criteria described by 76-2-203, M.C.A and Section 27.30.020, Kalispell Zoning Ordinance. This property is within the Kalispell city -county planning jurisdiction and subject to a neighborhood plan for the area. The Montana Department of Natural Resources and Conservation drafted a neighborhood plan that went through the public hearing process and public meetings. The plan was approved by both the City of Kalispell and Flathead County in 1999. In May of 2000 the City, County and State entered into a memorandum of understanding (MOU) agreeing that the DNRC would develop the property in accordance with the neighborhood plan and would comply with all applicable zoning, subdivision and construction standards. The DNRC completed the required MEPA process which resulted in some deviations from the Section 36 Neighborhood Plan. The proposed annexation and zoning with the PUD overlay is an additional step in the implementation of the neighborhood plan and the development of the property in compliance with the DNRC Section 36 Neighborhood Plan. .- -. -• so- a lunwe U92M-. 6 .. . .' - The development is proposed to be served from several accesses to the site. Two accesses would be off of Hwy 93 with the existing access near the DNRC offices being improved. A north access would be developed that would generally align with the access to the east serving the Mountain View Plaza (Home Depot) development. This intersection will be a signalized and the plan has been reviewed and approved by the Montana Department of Transportation. Two accesses would be developed off of Four Mile Drive to the south. This roadway is in marginal condition and would warrant additional upgrades by the developer as a result of the development of this area. The wide swing to the north attempts to circumnavigate the large hill on Four Mile. One access is proposed from Stillwater Road and one from West Reserve Drive. The full implications of the development and the most appropriate location of the traffic lights and accesses as well as review and approval by the City and Montana Department of Transportation. Some more specific analysis of the traffic impacts can be found in the EIS prepared as part of the MEPA process. Page 3 of 9 This property is at the northern boundaries of the city limits which creates some concerns regarding the emergency response times and increases the need for a second fire station in the area. The site is approximately three and one-half miles from the fire station. However, the development of the Mountain View Plaza site to the east has a site for a new fire station. All of the buildings within the development will be required to be constructed in accordance with the Uniform Fire Code. A planned unit development proposal gives the public and administration the opportunity to review the development plan on the site which should result in better overall design, integration into the landscape and as an entrance to the community. Part of the development proposal includes the extension of public water and sewer throughout the site. The extension of these services and the ability of the City of Kalispell to provide services to this site and other properties in the area would be assessed as part of an overall evaluation and review of the utility extension plan. Additional land for commercial expansion will be added to the inventory of developable properties. The planned unit development does not deviate from the zoning regulations and would be subject to all of the development standards of the zoning and those performance standards included in the development agreement. The development proposal includes a phasing of the development pods which should pace the development of the site. At some point the applicants would file for a subdivision that would create these parcels so that the development sites would be able to be conveyed as separate parcels. All of the parcels would comply with minimum standards of zoning. The future development potential of the site would have substantial impacts on traffic and people in the area. Traffic impacts associated with the type and intensity of development proposed pose the greatest concern with regard to undue concentration of people. Mitigation of potential traffic impacts associated with the development of this site would be identified in an traffic impact analysis that will be required by the Montana Department of Transportation and the City of Kalispell which would deal primarily with impacts along West Reserve Drive and Highway 93. This may include the use of deceleration lanes, limited access along the highway, traffic signals and other appropriate means of mitigation. New City infrastructure will need to be extended to the site as it relates to water and sewer. A complete and adequate analysis of the needs of the development and the existing infrastructure and the ability of the City to serve the project have not been fully developed or analyzed but would occur at the time of subdivision review or as a project proposal is fully developed. Fire and police services will also be required to service the site which will require fire safety improvements that will include Page 4 of 9 improvements to the water system, hydrants and sprinkled buildings, for example. The location of this development in relation to the City fire department poses some concerns regarding the City's ISO rating and response times to the site. The location at an intersection of two major arterials and the proximity to City services appears to make this property particularly suited for the particular uses proposed for the site. The character of the area is a mix of rural residential, high density residential, agricultural, industrial and commercial. Development of this property to a commercial use appears to give reasonable consideration to the character of the area. Most of the properties in the area are residential or agricultural in nature with emerging commercial to the east. This development proposal will help to conserve the value of buildings in the area. •- N1511 NO •. Because this rezoning request complies with the neighborhood plan for Section 36, particularly with a PUD overlay, it would seemingly encourage the most appropriate use of this property. The planned unit development will offer some predictability as to how and when this property would be developed. It appears that this rezoning would encourage the most appropriate use of this property and the use of land in the planning jurisdiction. Page 5 of 9 FVAi IATION OF THE Pi NN D TINIT DEVELOPMENT PROPOSAL Project Narrative: The Montana Department of Natural Resources Section 36 contains a total of 640 acres. The Kalispell Youth Athletic Complex is located in the southeast quarter of this section and the City has a lease with the State. The complex occupies nearly the entire quarter section which was annexed several years as part of the development of the ball fields. Groswiler Dairy has approximately 20 acres on the west side of the section that is not part of this proposal with within Section 36. There are approximately 454 acres that are part of this proposal and would be subject to the zoning, the PUD overlay and the development agreement. There are four land use areas identified on the entire section of land designated as a specific development pod. A Mixed Commercial pod is identified on the area adjacent to US Hwy 93 between the Hwy 93 Bypass alignment and the center section line that contains approximately 118 acres. A Mixed Professional pod is identified for the area located in the north half of the section, north and west of the US Hwy 93 Bypass alignment which contains approximately 184 acres. A Mixed Residential pod is proposed for the area in the southwest quarter of the section which contains approximately 152 acres. The project is proposed to be phased over a number of years. The State plans to develop the property on a lease basis wherein the developer would install the infrastructure such was water, sewer, roads and storm drainage in accordance with City design and construction standards. The infrastructure is proposed to be developed and the subdivision stage and would be subject to review and / or bonding at that time. Phase I would be the mixed commercial pod that would be given a B-5, Commercial / Industrial zoning designation. The PUD overlay would limit the types of uses allowed in the development pod and require certain performance standards beyond that required under the zoning. The initial project under consideration would be a high tech business part that is planned for the mixed commercial area. Technology uses have been stated as a priority use for this area which contains approximately 118 acres. The mixed commercial area will be extended to include the entire northeast quarter of the section or an addition 42 acres which would be held as a reserve area for expansion of technology uses beyond the original pod area. This high tech business part currently under consideration would occupy approximately 60 acres of the site and contain approximately 40,000 square feet. Should this project expand an additional area north of the power lines would be available for additional development. There are restrictions on the size and type of uses that would be allowed in this development pod area. Expansion of the mixed commercial pod would not be permitted until at least 60 percent of the initial develop pod has been leased for development. Phase II would be in the mixed professional pod that lies in the northwest corner of the section. This area would be designated with an underlying zone of R-5, Residential / Professional Office. The PUD would have specific development standards for this area. This development pod would contain approximately 180 acres initially with approximately 42 acres to be transferred to the mixed commercial area if the thresholds on development are met. This includes an approximately 18-acre site for a school and natural resource agency campus. Development of this site would be restricted to not more than 20 percent of the site, excluding the school and campus area, until at least 50 percent of the mixed commercial pod is leased for development. Phase III would be in the mixed residential development area located in the southwest corner of the section. This would have an underlying zoning designation of R-4, Two Family Residential. This area contains approximately 150 acres that includes an Page 6 of 9 approximately 20-acre site designated as a deferred development area that could be used for a school or other public facilities. Specific performance standards are outlined in the development agreement that addresses access, development improvements, parking, landscaping, signage building orientation, setbacks as well as exterior finishes and architectural compatibility. None of these standards present a deviation from the Kalispell Zoning Ordinance. Criteria for the r-reation of a Planned Unit Development (PUD) Dis r: The following information and evaluation criteria are from Section 27.21.020(2), of the Kalispell Zoning Ordinance. The intent of the planned unit development provisions are to provide a zoning district classification which allows some flexibility in the zoning regulations and the mixing of uses which is balanced with the goal of preserving and enhancing the integrity and environmental values of an area. The zoning ordinance has a provision for the creation of a PUD district on annexation of the property into the city. Review of Appli -a ion Based Upon MID Evaluatinn Criteria: The zoning regulations provide that the planning board shall review the PUD application and plan based on the following criteria: 1. The extent to which the plan departs from zoning and subdivision regulations otherwise applicable to the subject property, including, but not limited to, density, bulk and use, and the reasons why such departures are or are not deemed to be in the public interest; The planned unit development as proposed does not deviate from the zoning or subdivision regulations. On the contrary, some of the design standards have been developed to be more restrictive as they relate to use, building height, signage and landscaping 2. The nature and extent of the common open space in the planned development project, the reliability of the proposals for maintenance and conservation of the common open space and the adequacy or inadequacy of the amount and function of the open space in terms of the land use, densities and dwelling types proposed in the plan; Open space is defined in the Kalispell Zoning Ordinance as "Any part of a lot unobstructed from the ground upward. Any area used for parking or maneuvering of automotive vehicles or storage of equipment or refuse shall not be deemed open space." Open space has been addressed in the covenants for the property which would be addressed through a common maintenance agreement and assessments to the leaseholders. Perimeter landscaping is proposed in accordance with Kalispell's Street Tree Ordinance which requires spacing of trees at 40-foot intervals with a 2'/4-inch caliper tree. The overall landscape plan would ultimately be coordinated with the Kalispell Parks and Recreation Director. All of the parking lots, roadways, sidewalks and landscape areas will be would be held in common or have cross easement agreements recorded to ensure unrestricted accesses within the site. Although not specified, these common parking and access areas will be maintained by the leaseholders within the development. Covenants were included with the application address the maintenance and assessments for the common areas. 3. The manner in which said plan does or does not make adequate provision for public services, provide adequate control over vehicular traffic and further the amenities of light or air, recreation and visual enjoyment; Page 7 of 9 The extension of public water and sewer to the site is proposed as part of the overall development of the site on t the time of subdivision review. All of the infrastructure would be designed and constructed in accordance with the City of Kalispell design standards and reviewed and approved by the Kalispell Public Works Department. A rather extensive review of the services and facilities needs was done in association with the Montana Environmental Protection Act (MEPA) prior to the submittal of the application for annexation and can be found the in the DNRC's Environmental Impact Statement. The impact of additional development on the existing City systems have not been quantified since no specific proposal has been development at this juncture in the process. Impacts and needed infrastructure improvements associated with a specific development proposal would be addressed in conjunction with the subdivision review process. Access to the site has been designed in accordance with the neighborhood plan document and is reflected on the site plan included with the PUD application. 4. The relationship, beneficial or adverse, of the planned development project upon the neighborhood in which it is proposed to be established; Development of the property in accordance with the neighborhood plan is intended to fulfill the State mandate for managing school trust lands for the benefit of the schools while further the goals of the community. This proposal may benefit the community as a whole by filling a perceived need within the community for additional area for commercial, industrial, office and residential development. The greatest adverse impacts to the neighborhood would be related to increased traffic from the site and the creation of a large- scale commercial element in an exurban area of the county. The impacts of the commercial development can be mitigated to a certain extent with landscaping, good site design and internal circulation, and the limitation on certain uses allowed within the various zones. 5. In the case of a plan which proposes development over a period of years, the sufficiency of the terms and conditions proposed to protect and maintain the integrity of the plan which finding shall be made only after consultation with the City attorney; This development is proposed to occur in phases over the next ten to 50 years. Phase I would include the technology oriented businesses at the northeast corner of the site with subsequent development to the north and to the west. The subsequent phases would occur in a counter clockwise fashion from the mixed commercial to the mixed professional to the mixed residential pods. The deferred development areas within the site would not be subject to phasing requirements outlined in the development agreement, but would be available for development of schools and other public facilities. 6. Conformity with all applicable provisions of this chapter; No deviations from the Kalispell Zoning Ordinance are being proposed with this PUD proposal or the development agreement. Rummar�v,: The zoning regulations require that once a final plan is approved by the city council, the applicant shall submit a revised plan in accordance with the approval of the council which incorporates any conditions which have been imposed by the council. After all of the terms and conditions of the agreement have been determined along with a final site plan, a development agreement will be drafted between the City of Kalispell and the Developer outlining and formalizing the terms. The final plan as approved, together with the development agreement and any conditions, terms or restrictions which may be imposed, shall constitute the Planned Unit Development (PUD) zoning for the site. Page 8 of 9 Staff recommends that the Kalispell City -County Planning Board adopt staff report #KA-01- 4 as findings of fact and recommend to the Kalispell City Council that upon annexation the property be given the proposed zoning with a PUD overlay subject to the following conditions: 1. That the development of the site shall be in substantial compliance with the Section 36 Neighborhood Plan as amended through the MEPA process, the development agreement, application, the site plan and conditions for the PUD as approved by the city council. 2. The proposed development areas within the site shall be substantially the same as indicated on the preliminary site plan submitted with the application or as modified by these conditions. 3. That the plans and specifications for water, sewer, drainage and grading shall be designed and installed in accordance with the Kalispell Design and Construction Standards and shall be subject to review and approval by the Kalispell Public Works Department at the time of subdivision review. 4. The fire access and suppression system shall be reviewed and approved by the Kalispell Fire Department for compliance with the Uniform Fire Code. 5. A plan shall be developed and in place that addresses the grading, revegetation, irrigation and maintenance of the undeveloped areas that creates a weed free, dust - free area until such time as that phase is fully developed. 6. That the necessary easements be obtained for the extension of water and sewer services to the site. 7. That a traffic impact study be completed which identify all expected traffic impacts and proposals for mitigation, and that appropriate approach permits be obtained from the Montana Department of Transportation and the City of Kalispell at the time development occurs. 8. That pedestrian walkways be provided as the site develops that provides a continuous and connected system with the existing walkways along Highway 93, Four Mile Drive and within the developed areas of the site. 9. That the uses allowed within the development shall not include those which require areas for the display of large merchandise such as new and used automobile sales, manufactured home sales, recreational vehicle sales and lumberyards. This would not preclude incidental events associated with the other businesses on the site. 10. That the phasing and timing of the development shall occur as proposed. Bonding for the proposed infrastructure and improvements or other acceptable means of insuring that the improvements will be completed as proposed shall be provided by the developer at the time of subdivision review. 11. The developer and City of Kalispell shall execute a development agreement based on terms and conditions included in the planned unit development. Page 9 of 9 SEP 1), 2001 September 5, 2001 Tri-City Planning Office 17 Second Street E Ste 211 Kalispell NIT 59901 Re: Comments on DNRC Section 36 Annexation and Initial Zoning — PUD Dear Sirs: I have reviewed the documents, and have concerns in the following areas. • With the existing heavy truck traffic (logging trucks, gravel trucks, etc.) on the very narrow West Reserve Drive, additional traffic is an invitation for disaster. As part of this development, West Reserve Dr. should be widened. Since the north side has been developed, and there is a major powerline present, the widening should be to the south. I would recommend that there be a deeded easement along the north boundary of the development. • The proposed Alternate US 93 (by-pass) makes very little sense in that it by- passes nothing. The junction of West Reserve and US 93 is already a very busy intersection, with many wrecks. The by-pass should be taken further north before connecting with US 93 — maybe in the area of Church Drive. • Lastly, what area is being set aside for Kalispell's new high school? Sincerely, /OS h T. Nelson, 7r. 100 Ranch Rd. Kalispell, MT 59901 ATHEAD ELECTRIC COOPERATIVES INC. 5EP m 5 2001 August 30, 2001 ' Narda Wilson, Senior Planner Tri-City Planning Office 17 Second Street E Ste 211 Kalispell MT 59901 Re: DNRC Section 36 Annexation and Initial Zoning — PUD — Comments Dear Ms. Wilson, Thank you for the opportunity to comment on the proposed zoning change and annexation. After review of the documents, we would offer the following comments: Because this proposal will significantly increase vehicle traffic on West Reserve Drive, and because the existing road is too narrow to safely accommodate the present commercial (truck) traffic; provision should be made for a road easement along the north side of the section so that West Reserve could be widened to the south. The north side has already been developed out to the existing right-of- way and, in addition, contains a major transmission line. Because of the present traffic congestion at the junction of West Reserve Drive and Highway 93, the proposed Alternate 93 (by-pass) makes little sense. A route taking the by-pass further north before intersecting the present route would ease the congestion. We would anticipate providing electrical service to this complex primarily from West Reserve Drive, with a secondary approach from Four Mile Drive. Thought should be given to providing utility easements that will provide adequate access. Given the present need for a new high school, we wonder if a site shouldn't be reserved within this section. Sincerely, Warren G. McConkey General Manager ENGINEERING 2510 Hwy 2 EAST, KALisPELL, MT 59901 PHONE 406-751-4483/FAx 406-756-3647 Montana Department of Transportation David A. Galt, Director Judy Martz, Governor Missoula District Office 2100 W Broadway PO Box 7039 Missoula, MT 59807-7039 September 7, 2001 Narda Wilson Senior Planner Tri-City Planning Office 17 Second Street West Kalispell, MT 59901 Subject: DNP.0 Section 36 Annexation and l., itial Zoning - PUD: SEP 1 1 tool The MDT has no comments on the DNRC's request for annexation into the City of Kalispell and the initial zoning. Shane Stack Missoula District Traffic Engineer 523-5830 copies: file Phone: (406) 523-5800 An Equal Oopormnity Employer Try: (800) 335-7592 Toll -free: (888) 231-5819 Web Page: w .mdt.smte.mt.us Section 36 Utility Plan Section 36, T29N R22W 28 u West Reserve Me 25 31 i i 1 12" WATER MAIN / /• /' --- i Mixed brofessional — 1 ' / TO LIFT STATION IN SECTION 31 1 12" WATER MAIN /• �4, 1 12" COLLECTOR ; 12" C LLLE�TOR 90a Oa0 0 900 1200 /,•�g�'1, % j// 12" COLLECTOR I '—MAINORCE Smw In feet 1 14" WATER MAIN ' �� a /' � / Mixed Commercial 1144" WATER MAILEGEND -T-+ Sedon Comer 14" WATER MAIN a --.. Ouerteraetlion ® CemerqueRersecfitn Comer ,�Q} / O Q` /// 8" WATER MAIN I 1 BRA ta m xer in •'/ 1 �—� HBYpaw� i /� DNRC ----Sew (1-5Yaea O`° j ! I I Wafer O.SYwrs �• 1 I , ----Sew 5-10Yeers , Wafers-10Ywre -----Se"rf0-20Ywrs _—� 12" WATER MAIN I I 1 Wafer 10-20 Ywra 6"/FORCEIMAIN -----_' 1 a SECWELL —�— Water We115-10Yeara I 36 WELL Mixed i Residential �_ 1 • WaWRmrxo1r5-10Ywrs r Sports Fields I I 12- SUPPLY _ 1 1 Pads 12" IWATE9 MAIN I i l k 1 LIFT STATION I 1' 1 / J e 12" WATER MAIN 1 ra ammo 35 ---- —�I 114" SUPPLY % r..armn 2 1 i i STORAGE RESERVOIR FOOT We Drive PLANNED UNIT DEVELOPMENT AGREEMENT PARTIES AND PURPOSE: This Agreement made and entered into this _ day of , 2001 is by and between State of Montana Department of Natural Resources & Conservation (hereinafter "DNRC"), with its office and principal place of business located at 2250 Highway 93 North; and the City of Kalispell, a municipal corporation (hereinafter "City"), with its office and principal place of business located at 312 - 1st Avenue East, Kalispell, Montana 59901: WITNESSETH: WHEREAS, The State of Montana Department of Natural Resources & Conservation is the owner of certain real property located in Flathead County, Montana, which is further described in Exhibit "A" attached hereto and made a part hereof, and which hereinafter is referred to as the "Subject Property"; and, WHEREAS, The Subject Property is subject to a request for annexation and initial zoning; and, WHEREAS, DNRC is desirous of applying a Planned Unit Development (PUD) overlay to city zoning classifications; and, WHEREAS, In order to allow the PUD, assure the installation of Infrastructure within the "Subject Property", permit connections to the CITY utility systems, and prescribe the permitted uses within the requested zoning areas, the parties hereto determine it is to be in their best interests to enter into this Planned Unit Development Agreement; and, WHEREAS, (i) Use and development of the property is subject to the provisions of the Section 36 Neighborhood Plan, jointly adopted by the City of Kalispell and Board of County Commissioners in 1999; (ii) the adopted plan is further subject to an environmental impact statement performed under the Montana Environmental Policy Act; (iii) and further subject to the Record Of Decision (ROD) which establishes additional parameters to development and (iv) a Memorandum Of Understanding (MOU) establishes policy for taxation, local review of projects, and other development considerations; and, WHEREAS, DNRC is requesting annexation of the property into the City of Kalispell with City of Kalispell Zoning classifications of B-5 to be applied to the Mixed Commercial POD, R-5 to the Mixed Professional POD, and R-4 to the Mixed Residential POD; and, WHEREAS, It is desirous by DNRC to further restrict the allowances of these City of Kalispell Zoning classifications to the property and to provide additional standards for development consistent with the Plan (identified by the ROD) by applying a PUD overlay to the underlying zoning classifications. I. DEFINITIONS 1.01 Agreement shall mean this Planned Unit Development Agreement between DNRC, and CITY. 1.02 Building Department shall mean the Building Department of the City of Kalispell 1.03 CITY shall mean the City of Kalispell, Montana. 1.04 City Council shall mean the City Council of the City of Kalispell, Montana. 1.05 Developer shall mean DNRC, its agents, designees and assigns. 1.06 Director of Public Works shall mean the Director of Public Works of the City of Kalispell, Montana. 1.07 Easement(s) means the Easement(s) described in §3.04 of this Agreement. 1.08 Section 36 Plan means the land use plan approved by the City of Kalispell and Board of Flathead County Commissioners and as amended by the Record of Decision issued by DNRC on August 11 , 2001, all pertaining to the School Trust Lands located in Section 36, T29N-R22W, Flathead County Montana. 1.09 Mixed Commercial means that portion of the Subject Property generally lying in the NEI/4 of Section 36 and as more particularly described in Exhibit B. 1.10 Mixed Professional means that portion of the Subject Property lying generally in the NW '/4 of Section 36 and as more particularly described in Exhibit C. 1.11 Mixed Residential means that portion of the Subject Property lying generally in the SWI/4 of Section 36 and as more particularly described in Exhibit D. 1.12 Sports Fields means that portion of the property generally located in the SE '/4 of Section 36 and already zoned P-I and previously annexed into the City of Kalispell. 1.13 Subject Property or Subject Area means the real property described in Exhibit A. 1.14 Memorandum of Understanding means a 3-party agreement entered into by DNRC, City of Kalispell, and Board of Flathead County Commissioners dated April 19, 2001. 1.15 Draft Environmental Impact Statement means a document released as a Draft Environmental Impact Statement (DEIS) by DNRC on June 13, 2001 to evaluate the impacts to the physical and human environment relative to proposed actions associated with school trust lands located in Section 36, Township 29 N, Range 22 W, P.M.M., Flathead County Montana. 1.16 Final Environmental Impact Statement means a document released as a Final Environmental Impact Statement (FEIS) by DNRC on July 26, 2001 relative to proposed actions associated with school trust lands located in Section 36, Township 29 N, Range 22 W, P.M.M., Flathead County Montana. 1.17 Record of Decision means a decision document issued by DNRC on August 11, 2001, that identifies selective alternatives related to a land use plan for Section 36 and a proposal to lease land in section 36 to construct a business and technology park 1.18 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. 1.19 Infrastructure means all water, sewer and storm drainage systems that will be dedicated to the public and have been installed in accordance with the Montana Public Works Standard Specifications and the City of Kalispell Standards for Design and Construction. In addition, Infrastructure shall include roads that are designed and constructed in accordance with the Montana Public Works Standards for Design and Construction. Said Infrastructure shall consist of various public utilities and dedicated streets. The Infrastructure required to serve developed facilities and to provide connection to future phases of development will be identified concurrent with subdivision review. Notwithstanding any of the foregoing, excluded from these terms are: building construction; parking lot paving; final landscaping in and around the buildings and parking lot(s); lighting; signage; and the service lines to each building. 1.20 Section 36 means land owned by the State of Montana as School Trust Lands (Section 36, T 29 N, R 22 W, P.M.M., Flathead County Montana) and administered by the DNRC and as more precisely described by Exhibit A. I .21 School Trust Lands mean lands granted to the state of Montana by the Enabling Act of February 22,1889 (and subsequent acts) for support of the common schools. 1.22 DNRC means State of Montana/Department of Natural Resources and Conservation. II. GENERAL DEVELOPMENT AND USE OF THE SUBJECT PROPERTY 2.01 Development Overview (A) Subject to the other provisions of this Agreement, any use/development of the Subject Property occurring after the effective date of this Agreement shall substantially conform to and comply with the provisions of the PUD Kalispell Zoning of Section 36 and this Agreement with the documents and drawings annexed hereto. (B) It is agreed between the parties, that the development of the Subject Property will include the following: (1) A land use map, which identifies three land use pods and a proposed alignment of internal collector roads to be built in phases as development occurs (Exhibit E); (2) A list of permitted uses associated with each land use pod; (3) A phasing schedule of development; (4) A land use plan as identified in the Section 36 Final Environmental Impact Statement and associated Record of Decision; (5) Annexation of the Subject property into the city limits of Kalispell; (6) Extension of city water and sewer services by lessees of DNRC to serve the developed facilities of the Subject Property; (7) Adherence to the Memorandum of Understanding jointly approved by the City of Kalispell, Flathead County, and DNRC; and (8) Compliance with the PUD zoning regulations and City of Kalispell Subdivision regulations. (C) Development themes for each Land Use POD being annexed into the City of Kalispell are as follows: (1) Mixed Commercial a district providing a variety of commercial industries are appropriate and where community design to minimize the appearance of strip commercial development is desirable, including but not limited to all uses set forth in Kalispell Zoning Ordinance Classification B-5 and as otherwise modified by this Agreement. Strip -type uses characterized by substantial outdoor storage and display of products, such as car lots and equipment and trailer sales are specifically excluded. Also specifically excluded as permitted uses are gaming/gambling establishments of any kind, including casinos. The range of permitted uses are intended to permit a variety of uses associated with the retail, professional services, or technology industries but does not necessarily limit or restrict opportunities for continued agricultural operations or practices. However, technology uses are given priority consideration consistent with the Record of Decision issued by DNRC. (2) Mixed Professional a district providing opportunities for development of offices, office parks, and compatible uses in a fashion that promotes clustering of uses and architectural control, including but not limited to all uses set forth in Kalispell Zoning Ordinance Classification R-5 and as otherwise modified by this Agreement. The phasing limitations anticipated by the Section 36 Neighborhood Plan would be modified to encourage development of schools and a resource agency office park in this POD consistent with the Record of Decision issued by DNRC. (3) Mixed Residential a district providing opportunities for development of residential uses, offices, and other compatible uses in a fashion that promotes clustering of uses and architectural control, including but not limited to all uses set forth in Kalispell Zoning Ordinance Classification R-4 and as otherwise modified by this Agreement. A land exchange process will be encouraged to facilitate opportunities for private ownership and development of this POD. The phasing limitations anticipated by the Section 36 Neighborhood Plan would be modified to encourage development of schools in this POD consistent with the Record of Decision issued by DNRC. (D) The creation of individual lots (or lease lots) will be subject to subdivision review concurrent with spec project proposals. Subdivision approval will verify compliance with the provisions of the PUD Agreement and covenants and identify requirements for extension of utility services. Bonding requirements to guarantee completion of the required infrastructure (roads, water, sewer, etc) will be accomplished via the subdivision approval process. Infrastructure improvements shall consider the needs of future development within each POD, such as planning for road, water, and sewer extensions beyond the immediate project area. (E) General performance standards applicable to the Subject Property are as follows: (1) Transportation and Parking a. General access to this district from U.S. Highway 93 shall be limited to no more than 2 approaches. New approaches onto Reserve Drive, Stillwater Road, and Four Mile Drive shall generally be limited to a minimum spacing distance of 1,300 feet or as otherwise authorized by the access permitting agency; b. All uses shall have direct access from the internal road system. No direct access to a particular use shall be permitted from the Highway or the other perimeter public roads as listed in Ia, above; c. The collector road system shall be as generally shown by Exhibit E and as more precisely aligned by subsequent engineering analysis, use patterns, and subdivision review; d. All roadway improvements shall be built in accordance with city of Kalispell road design standards; C. Roadway design shall include provisions for landscape boulevards and sidewalks; f. Lighting shall be shielded and directed downward; and, g. Parking space requirements and general parking lot design shall be guided by the parking and loading provisions of the City of Kalispell Zoning Regulations, except as noted herein. Parking landscape requirements (see 27.26.030(6), KZO) may be satisfied by common area landscaping adjoining any parking area. Front and side yard parking shall be 5 permitted in the Mixed Professional Office and Mixed Commercial PODS as described in Section 27.26.030(2)(e)1) and 27.26.030(2)(e)2), KZO,respectively. (2) Landscaping a. Landscaping, to include lawn, shrubs, trees, and/or rock gardens, shall comprise all open spaces within the boundaries of the parent lease lot. Parking lots may extend to within 5 feet of any lot/lease lot boundary. b. Buildings shall be set back a minimum of 20 feet from the side, front, and rear of the parent (not sublots) lot/lease lines. c. Parking lots serving multiple businesses where the area for parking spaces exceeds a lineal length or width of 270 feet shall include internal landscape islands having minimum dimensions of 9 feet by 18 feet at a ratio of I island for every 15 continuous parking spaces when such spaces are located internal to the parking lot (not abutting the perimeter boundary to the parking lot or store front); d. A landscape boulevard having a minimum width of 4 feet shall parallel both sides of the collector roads shown on the neighborhood plan map. Street trees acceptable to the City of Kalispell shall be planted at 40 to 50 foot intervals as appropriate. e. Sidewalks or pathways shall connect developed properties to the roadside sidewalks (see le, above); f. All landscaped areas shall be irrigated and routinely maintained; and g. An irrigated landscape corridor of at least 20 feet in width shall parallel the right of way of U.S. Highway 93 adjacent to the commercial POD. The corridor should include undulating topography and have a mix of tree plantings with a ground cover of predominately lawn. A similar landscape common corridor, 10 feet in width shall parallel West Reserve Drive and be completed in phases to correspond with development activity. 3. Building and [lease] Lot Parameters a. Buildings should not exceed 35 feet above natural grade. Architectural enhancements of building facades extending above 35 feet are not necessarily excluded but are subject to review and approval by the City of Kalispell Site Development Review Committee; b. Applied finishes of buildings shall be predominately earth tone; c. Buildings shall have an orientation towards the internal road system; d. Ground and wall signs may be used to identify a single use lease lot or multiple uses within a common lot/lease area. Ground signs shall have natural earth tones and not contain any exterior plastic, plexiglass, or similar components. The ground sign shall not have internal lighting or sign -mounted external lighting. Shielded lighting may be provided from ground -mounted fixtures directed towards the sign face. Ground signs may have a concrete or similar mounting base but in no situation shall the total height of the sign exceed 8 feet. Total ground sign area shall not exceed 160 sq ft: Wall signs may have internal lighting and shall not exceed a sign face area of 80 sq ft.; e. In situations involving a commercial or office town home, condominium or sublot design, only the parent lot is eligible for a common ground sign. Individual uses are eligible for a wall sign if the use has outside frontage. A common wall sign may be appropriate to identify a building having multiple tenants. A common signage plan that involves other types of building signage, such as canopy signage, may be permitted subject to the review and approval of the City of Kalispell Site Development Review Committee. Residential uses shall be permitted signage as otherwise permitted by the City of Kalispell zoning regulations. All other provisions of the Kalispell sign regulations shall apply when consistent with the restrictions set forth herein; f. The exterior appearance of commercial buildings with "backs" facing, adjacent, and visible from Highway 93 shall contain architectural elements found on the "front" portions of the buildings. Walls and surface planes should be broken up in such a manner as to create a visual interest, avoiding monotony; g. Lease lots with single or multiple buildings shall have sufficient area to accommodate the size of the proposed building(s) and required on -site parking plus sufficient area for landscaping exterior to the building and parking lot (see 2a & 2b, above); h. A single lease lot may contain buildings with multiple tenants and/or uses or be comprised of multiple attached or detached buildings. In such situations, landscaping, parking, and internal access shall be common to all buildings within the lease lot; and i. Commercial buildings or combination of buildings on a single lease lot exceeding 60,000 sq ft total gross floor area (where no sublots have been established) shall be set back a minimum distance of 300 feet from U.S. Highway 93. 4. Extension of Services a. All required services shall be underground; and b. Annexation and provision of city services shall be subject to the approval of the City of Kalispell. 5. Growth Management a. Development of property shall conform to the general provisions of the neighborhood plan consistent with Section 27.22.120, KZO. b. Phase I (Exhibit B) is the Mixed Commercial Pod i. Clustering of uses is preferred to encourage sharing of roads, parking, utilities, and common design. However, separation of uses, such as "large" from "small" or "commercial" from "industrial' may be appropriate within the Commercial POD. ii. Development design is intended to avoid a "strip" commercial appearance with specific exclusion of certain uses. iii. The area of the Mixed Commercial POD will be extended to include the entire NE 1/4 of Section 36 and the extended area will be held as a reserve area for expansion of technology uses beyond the original POD area as described by Exhibit B-1. iv. That portion of the Mixed Commercial POD lying southerly of the by-pass alignment will offer leases primarily to business (offices) and technology uses and compatible commercial uses, such as small retail convenience uses (delis, restaurants, copy shop, "wired" motel, etc). Retail stores exceeding 10,000 square feet per store front will not be permitted. No retail 9 will be permitted until at least 20,000 square feet of non -retail space is leased and operating within the POD. v. Expansion of business and technology uses into the expansion area will not be permitted until at least 60% of the originally - sized Mixed Commercial POD is leased for development. vi. If business and technology uses fail to achieve a 40,000 square foot floor area threshold within 5 years following the Record of Decision for the EIS or if the proposed business and technology park as proposed by Hampstead Partners fails to proceed within 1 year following the Record of Decision, then the original Mixed Commercial and Mixed Professional boundaries (Exhibit B) shall be restored and the retail restrictions removed to permit all the uses listed in Section 2.02 of this Agreement. vii. If business and technology uses fail to achieve a 120,000 square feet floor area threshold within 10 years following the Record of Decision for the EIS, then the boundaries of the original Mixed Commercial POD (Exhibit B) shall be restored and the retail restrictions removed to permit all the uses listed in Section 2.02 of this Agreement. c. Phase II (Exhibit C) is the Mixed Professional POD. i. Clustering of uses is preferred to encourage sharing of roads, parking, utilities, common design, and to prevent a scattered development pattern within the POD. ii. Infill of developed uses, with some exceptions, such as schools, agricultural facilities, and equestrian facilities, shall be from east to west. The "Section 36 Neighborhood Plan Map" also designates an area along Stillwater Road that is excluded from nonagricultural development until the year 2010. This deferred development area is modified by the Record of Decision to allow schools and a natural resource agency campus to build at any time within the Mixed Professional POD. iii. Development of non-agricultural uses shall be restricted to no more than 20% of this POD until at least 50% of the Mixed Commercial POD (Exhibit B) is leased for development. School, agency campus, and equestrian facilities may be permitted at any time and are not subject to the 20% calculation. iv. That portion of the NE 1/4 of Section 36 lying within the Mixed Professional POD may be added to the area of the Mixed Commercial POD as described in (b) above. The amended legal description of the Mixed Commercial POD is described in Exhibit C-1. The infill pattern of the Mixed Professional POD would need to reflect this reserve area for the future expansion of the Mixed Commercial POD. d. Phase Ill is the Mixed Residential POD. i. Clustering of uses is preferred to encourage sharing of roads, parking, utilities, common design, and to prevent a scattered development pattern within the POD. ii. lnfilI of developed uses, with some exceptions, such as schools, agricultural facilities, and equestrian facilities, shall be from south to north or from east to west. The "Section 36 Neighborhood Plan Map" also designates an area along Stillwater Road that is excluded from non-agricultural development until the year 2010. This deferred development area is modified by the Record of Decision to allow schools to build at any time within the Mixed Residential POD, including the deferred development area. iii. Development of non-residential and nonagricultural uses shall be restricted to no more than 20% of this POD until at least 50% of the Mixed Professional POD is leased for development or 50% of this POD is occupied by residential uses, whichever comes first. This limitation does not apply to public facilities. 6. Supplementary Regulations a. Accessory uses shall be permitted as appropriate to a particular use and as generally set forth in Section 10 27.22.020 et seq, KZO. Subsections 2a and 2b of that section of the KZO shall generally apply to residential uses within any portion of Section 36. Subsections 2d and 2e, KZO, would apply as appropriate to non-residential uses in any portion of Section 36. b. The greenbelt provisions of Section 27.22.050 shall be interpreted and applied concurrent with subdivision review. C. The principal structure provisions of Section 27.22.060, KZO, as applicable to "B", "P", and "I" districts shall apply to the Mixed Commercial and Mixed Professional PODS so as to permit multiple structures within a single lot or lease lot. d. The creation of sublots (for leasing purposes) may be appropriate in situations involving residential, commercial, office, and industrial uses. Section 27.22.130, KZO, is hereby amended to permit the creation of sublots in the Mixed Commercial, Mixed Professional Office, and Mixed Residential PODS of Section 36. e. All other provisions of the Chapter 27.22 of the City of Kalispell Zoning Regulations shall apply as appropriate. (F) Covenants: Draft covenants are attached as Exhibit F. Prior to construction of any building improvements or concurrent with subdivision review, final covenants shall be completed and recorded. The City shall review the covenants for consistency with this PUD Agreement and seek a revision to the covenants as necessary to comply with the conditions of approval of the PUD. 2.02 Uses (A) The uses allowed in the PUD shall be those uses generally allowed under the following zoning classifications and as otherwise limited herein: 1) Mixed Commercial POD — Zoning Classification B-5 2) Mixed Professional POD — Zoning Classification R-5 3) Mixed Residential POD — Zoning Classification R-4 (B) The B-5 zoning district is limited to the following permitted uses. 1) Agriculture (farming, livestock, riding academies, stables, horticulture, nursery, etc) 2) Automobile service (fuel, wash, mechanical repair, tires, etc) 3) Barber & beauty services, massage parlor, etc 4) Cultural facilities (museums, theaters, libraries, etc) 5) Educational facilities (private and public schools, colleges, universities, trade schools, music, dance, theater lessons, 11 educational research or incubator facilities, etc) 6) Financial services and institutions (banks, credit unions, mortgage companies, savings & loans, etc) 7) Healthcare (medical offices/clinics, dental/orthodontic, in- patient/outpatient facilities, pharmacies, diagnostic services and treatment, etc) 8) Office, professional/governmental 9) Park, private or public (may include open space, trails, passive or developed facilities, etc) 10) Public assembly buildings (assembly halls, coliseums, stadiums, convention center, etc) 11) Public or quasi public buildings/structures (fire/law enforcement stations, community /homeowner facilities, water tower, electrical distribution/stations lines, telephone relay equipment, etc) 12) Radio/television broadcast stations, internet companies, etc 13) Recreational facilities, outdoor/indoor, private/public or quasi -public, commercial/non-commercial (tennis courts, bowling alley, golf course, ice skating arenas, ball fields, swimming pool, zoo, amusement park, community center gym, health/fitness club, driving range, etc) 14) Research, technical, or business parks (may include indoor assembly of parts, limited outdoor storage, product distribution) 15) Restaurant (deli, bakery, fast food, sit-down, beverage shop, drive -through, etc) 16) Retail facilities/enterprises (clothing, convenience, food, sporting, book, office products, drug, computer, phone, hardware, tire, plumbing, electrical, furniture, art, household, gifts, mall, warehouse discount, etc) 17) Tourist accommodations (motels, hotels, bed & breakfast, campground, recreational vehicle park, etc) 18) Veterinary services and facilities 19) Worship buildings (churches, synagogues, etc) (C) The R-5 zoning district is limited to the following permitted uses. 1) Agriculture (farming, livestock, riding academies, stables, horticulture, nursery, etc) 2) Automobile convenience (fuel, wash, & convenience retail, only, i.e. no mechanical service) 3) Barber & beauty services, massage parlor, etc 4) Cultural facilities (museums, theaters, libraries, etc) 5) Educational facilities (private and public schools, colleges, universities, trade schools, music, dance, theater lessons, educational research or incubator facilities, etc) 6) Financial services and institutions (banks, credit unions, mortgage companies, savings & loans, etc) 7) Food/grocery store 8) Healthcare (medical offices/clinics, dental/orthodontic, in- 12 patient/outpatient facilities, pharmacies, diagnostic services and treatment, etc) 9) Office, professional/governmental 10) Park, private or public (may include open space, trails, passive or developed facilities, etc) 11) Public or quasi public buildings/structures (fire/law enforcement stations, community /homeowner facilities, water tower, electrical distribution/stations lines, telephone relay equipment, etc) 12) Radio/television broadcast stations, internet companies, etc 13) Recreational facilities, outdoor/indoor, private/public or quasi -public, commercial/non-commercial (tennis courts, bowling alley, golf course, ice skating arenas, ball fields, swimming pool, zoo, amusement park, community center gym, health/fitness club, driving range, etc) 14) Restaurant (excludes food drive -up service but permits drive - up beverage service and take and bake establishments and sit-down facilities) 15) Retail enterprises less than 3000 square feet in gross floor area (excludes tavern, gaming, or casino facilities/operations) 16) Veterinary services and facilities 17) Worship buildings (churches, synagogues, etc) All other uses otherwise listed as permitted or conditionally permitted in the R-5 zoning classification may be considered only as conditionally permitted uses. (D) The R-4 zoning district is limited to the following permitted uses. 1) Agriculture (farming, livestock, riding academies, stables, horticulture, nursery, etc) 2) Educational facilities (services/facilities for pre -K or K-12 only) 3) Office, professional/governmental 4) Park, private or public (may include open space, trails, passive or developed facilities, etc) 5) Public or quasi public buildings/structures (fire/law enforcement stations, community /homeowner facilities, water tower, electrical distribution/stations lines, telephone relay equipment, etc) 6) Recreational facilities (limited to non-commercial facilities) 7) Residential (day care or day care centers; dormitories or fraternities (college); dwellings: single family; duplex; or multi- family; manufactured home park (class "A" only); Nursing homes and elder care; retirement home, etc) 8) Worship buildings (churches, synagogues, etc) All other uses otherwise listed as permitted or conditionally permitted in the R-4 zoning classification may be considered as conditionally permitted uses. (E) Property development standards for the B-5 zoning district 13 relative to (1) minimum lot area, (2) minimum lot width, (3) minimum yards, (4) maximum building height, (5) permitted lot coverage, (6) off-street parking, and (7) maximum fence height shall be consistent with Section 27.17.040, City of Kalispell Zoning Ordinance (KZO) unless otherwise specified herein by the listed performance standards or by language within the adopted neighborhood plan (see Section 27.22.120, KZO). (F) Property development standards for the R-5 Zoning district relative to (1) minimum lot area, (2) minimum lot width, (3) minimum yards, (4) maximum building height, (5) permitted lot coverage, (6) off-street parking, and (7) maximum fence height shall be consistent with Section 27.08.040, City of Kalispell Zoning Ordinance (KZO) unless otherwise specified herein by the listed performance standards or by language within the adopted neighborhood plan (see Section 27.22.120, KZO). (G) Property development standards for the R-4 zoning district relative to (1) minimum lot area, (2) minimum lot width, (3) minimum yards, (4) maximum building height, (5) permitted lot coverage, (6) off-street parking, and (7) maximum fence height shall be consistent with Section 27.07.040, City of Kalispell Zoning Ordinance (KZO) unless otherwise specified herein by the listed performance standards or by language within the adopted neighborhood plan (see Section 27.22.120, KZO). (H) DNRC shall require all proposed uses to be subject to architectural review. All structures shall conform to the relevant City of Kalispell Building Department regulations. Architectural consistency between building types within each POD is desired. [Since development of this property is likely to expand over several decades and styles change, some flexibility in design is desirable and expected.] The covenants establish architectural review authority for all proposed uses. 1) Landscape features are an important component of the developed properties. Landscaping is intended to complement the travel ways, parking lots, buildings, lots, and common areas ( see 2.01E (1), (2), and (3) of this Agreement). 2) Landscape materials shall be comprised of ornamental and native plant species common to the general community. Boulevard trees shall be consistent with the approved species list of the City of Kalispell. 3) Exterior lighting along travel ways and parking lots should be directed downward. Ornamental lighting along pathways and parking lots is encouraged. Low intensity lighting (exterior) may be appropriate to add architectural interest to certain features of a building face or building signage. Lighting directed upward to illuminate tree canopies or building overhangs may provide attractive accents. 4) Signage on buildings is intended to be complimentary to the building design and add architectural interest to the structure. Common signage, including entrance signage, is intended to be low profile and comprised of materials 14 complimentary to the building structures (see Section 2.01 E (3) of this Agreement). 5) Building design is an important consideration in helping to define the quality of the built environment. Each land use POD allows a mix of different land use types. Landscaping and other common features will provide one form of community linkage and identity. The other linkage will be building architecture. In general terms, all commercial buildings should seek to have architecturally enhanced facades and broken roof and wall lines to minimize monotony of design. Expectations of building design common to all land use types will include the following components. a. Exterior wall colors should harmonize with the site and surrounding buildings. The pre -dominate tone on building faces should tend toward warm earthy hues, whether in the natural patina or weathered color of the wall surface itself or the color of the paint stain or other coating. The color of concrete products on building faces should be not be achieved from painting the surface. The use of materials such as wood, brick or stone for trim material is encouraged. b. Large, rectangular masses should be avoided by incorporating offsets in the wall and roof. A change in the plain of the walls, changing the direction or providing some variety in the roof form gives diversity and visual interest. Facades greater than 120 feet in length must exhibit a prominent shift in the wall. C. Commercial buildings (non-residential) should place an emphasis on entry. Entries should be a prominent component of the building face by providing an architectural covered or recessed entry with modified roof accent and increased usage of windows and trim. d. All residential roofs must be pitched. Commercial roofs may be pitched or flat. Brightly colored roof material is prohibited as are reflective metals. All roof mechanical systems shall be shielded from view or incorporated into architectural features. Roof design shall incorporate architectural relief if building foot print size is greater than 20,000 square feet. e. Extensive use of windows is encouraged to break up building planes or add architectural interest to building facades or other walls facing public view. f. Franchise architecture is subject to modification to achieve the sign, color, and building style objectives set forth by this Agreement. g. Architectural elements of the front of the building shall be incorporated into the back of buildings when the back of the building is visually accessible from U.S. Highway 93. 2.03 Ownership The State of Montana may retain ownership of the Subject Property or leased parcels for the development and use by third parties. This Agreement is binding on the owners, successors and assigns inclusive of lessees of the property described in Exhibit A attached hereto. 2.04 Relationship to Zoning Ordinance Except as specifically modified or superseded by this Agreement and attached drawings or the PUD Application of DNRC, the laws, rules, and regulations of the City of Kalispell governing the use and development of land and buildings, including the Kalispell Zoning Ordinance as it now exists or as amended, shall apply to the Subject Property. 2.05 Effectiveness The provisions of this Agreement shall become effective simultaneously with approval of the PUD Ordinance. III. SITE CONDITIONS 3.01 Development The Subject Property shall be developed in substantial compliance with the Plan selected and identified by the Record of Decision issued by DNRC on August 10, 2001 and as described in this Agreement. 3.02 Access (A) Primary access to the Subject Property shall be as shown on the land use map (Exhibit E) of the Plan. (B) DNRC has completed a comprehensive traffic impact study, which identifies all expected traffic impacts and proposals for mitigation. (C) DNRC will obtain all necessary access permits from the Montana Department of Transportation and/or Flathead County Road Department and CITY prior to development of any uses that require access to a particular public road. 16 (D) DNRC agrees to be responsible 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, West Reserve Drive, Stillwater Road and Four Mile Drive indicated by the traffic study. (E) All primary and secondary entrances shall be completed to CITY standards prior to occupancy permits being issued for any site utilizing said entrances for access. (F) Emergency fire, ambulance, police and public vehicle access shall be at all times available through said primary and secondary access without impediment. 3.03 Private Internal Roadways and Sidewalks (A) DNRC acknowledges that the development of the Subject Property includes development, at DNRC's expense, of internal roadways providing access to the lots within the PUD. (B) DNRC agrees that the interior roadways within the PUD shall be constructed to CITY standards with Curb, gutter, and sidewalks on at least one side of the roadways, in accordance with the proposed Site drawings and applicable City Standards for Design and Construction for local and collector streets. A paved pedestrian/bike path will generally follow the collector roads on the side opposite the sidewalk. (C) DNRC agrees that they will dedicate all internal streets, boulevards, and sidewalks to the City of Kalispell upon completion. 3.04 Sewer and Water (A) Sanitary sewer service to the Subject Area shall be accomplished via extension of sewer mains to the lift station at Grandview Drive and as otherwise determined by subdivision review. (B) Water service to the Subject Property shall be provided as determined by subdivision review. (C) If a well is used on the premises, it shall not in any way be connected to the CITY water supply system without prior consent and approval by the City of Kalispell. (D) All sanitary sewer and water utilities shall be designed and installed in accordance with the City of Kalispell's Standards for Design and Construction. (E) All utility Infrastructure, collector, and local roads located within the subject Property shall be dedicated to the public upon completion. 17 (F) DNRC agrees to obtain all necessary easements for the extension of water and sewer to the Subject Property. In addition, DNRC will grant to CITY any and all easements necessary for CITY to perform maintenance of water and sewer lines installed pursuant to the Agreement. (G) In the event that CITY requires installation of water and/or sewer lines larger than those required to service the current needs of DNRC 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 portion thereof, during any phase of development of the Subject Property. (I) Following completion of installation of the sewer and water lines on the Subject Property by DNRC, it is agreed that the said utility lines shall be 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, DNRC, 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, DNRC agrees to obtain an Air Quality Construction and Demolition Permit from the Director of Public works, and to comply with the terms and conditions of said Permit during construction including hauling of material to and from the site. 3.07 Fire Suppression (A) Prior to the Building Department issuing any permit for any foundation or building within the PUD, the Fire Chief for CITY must certify that DNRC 18 has supplied a fire site access plan for the Subject Property and an engineered internal fire suppression system for the buildings to be constructed on the Subject Property, which will be in accordance with the Uniform Fire Code and will be acceptable to the Fire Chief. (B) DNRC agrees to install hydrants 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) In addition to the performance standards related to landscaping, subdivision review will consider the landscaping and common area features of all proposed development. (B) Street trees will be placed at 40-foot intervals along both sides of the internal roadways except where they immediately abut a parking lot island or planter or abut building fronts. Street trees are to be a minimum of 2 -1/4 inch caliper at planting. (C) Landscaping along Highway 93 and West Reserve Drive will include street trees placed at 50-foot intervals, which are a minimum of 2-1/4 inch caliper at planting. (D) The overall landscape plan shall be coordinated with the Kalispell Parks and Recreation Director as to the exact size and location of the plantings and the species lists. This plan shall be attached hereto as an addendum. (E) All refuse areas shall be screened from public view IV. CITY SEWER/WATER CONNECTION FEES 4.01 Connection Fee Schedule (A) Connection fees for connection to the CITY Water and Sewer utility will be determined in accordance with City Standards and fee schedules for connection fees, in effect at the time of the application for a building permit. (B) DNRC, or its successors and assigns which own the property at the time of applying for a Building Permit, shall pay the connection fees associated with the utility connections at the time of obtaining the Building Permit for each structure. This provision is to assure that the fees are paid at the time of applying for a Building Permit and is not to be construed as to prohibit DNRC from requiring reimbursement or advance payment of the cost from any potential tenant or purchaser. (C) DNRC may be entitled to reimbursement of a portion of the costs of installation and extension of water and sewer utilities from future users who connect to extended water and sewer facilities. If DNRC anticipates the need for reimbursement of cost, DNRC's engineer shall prepare a 19 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. 1) No reimbursement will be allows for any costs associated with meeting the utility requirements for development of the Subject Property. These costs shall be determined by DNRC's engineer and shall be submitted for review and concurrence by the Director of Public Works. Said costs shall be the actual costs of construction, inclusive of engineering and inspection costs, and shall be submitted as specified within thirty (30) days of substantial completion of the work. 2) No reimbursement will be allowed for any costs of extension of water and sewer facilities, or increases in size thereof, for which the CITY has agreed to provide reimbursement as described elsewhere in this agreement. 3) Costs associated with extensions of water and sewer facilities to future users shall be determined by DNRC's engineer and shall be provided to the Director of Public Works for review and concurrence that said costs are appropriate for reimbursement. Said costs shall be the actual costs of construction, inclusive of engineering and inspection costs, and shall be submitted as specified within thirty (30) days of substantial completion of the work. 4) A developer's extension agreement shall be prepared by DNRC's engineer and submitted to the Director of Public Works for review and concurrence. The agreement shall identify the costs to be reimbursed, the properties benefitted by the extended utilities, and the proportionate cost to be reimbursed by each benefitted property upon connection to the extended utilities. The agreement shall identify the recommended method for apportioning reimbursable costs between the benefitted properties. Said method shall be the same for all properties. The term of this agreement shall not exceed a period of seven (7) years. 5) Upon concurrence, the Director of Public Works shall submit the proposed developer's extension agreement to the Kalispell City Council for approval. 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. 20 V. AMENDMENT OR MODIFICATIONS OF AGREEMENT 5.01 Amendment or Modification Procedures This Development Agreement may be amended or modified only by application of DNRC, in accordance with the procedures set forth herein. Applications for amendment or modification may be made to the City of Kalispell Site Review Committee. (A) Modifications of this agreement and the attachments hereto which are deemed by said Site Review Committee to be minor modifications shall require only the consent of the Site Review Committee and shall not require the consent of the City Council or any other public agency. Said minor modifications shall include, but are not limited to, interpretation of uses by the Kalispell Zoning Administrator and other interpretations deemed to be consistent with the intent of this Agreement. (B) All amendments and modifications of this Agreement, other than minor modifications, shall require the approval of the City Council. (C) All applications for modifications or amendments of the Agreement shall be filed with the Site Review Committee and the Site Review Committee shall promptly, within 10 days, determine whether the modifications are major or minor. (D) The Site Review Committee shall make its determinations with respect to any application for minor modifications subject to this Section within 15 days after it determines the application to be subject to said minor modification. (E) If the amendment or modification requested is of such a nature as to require approval of the City Council, the Site Review Committee shall refer the matter to the City Council within fifteen (15) days after it determines the matter to require Council review. (F) DNRC may appeal the decision of the Site Review Committee to the city 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 sever able and the remainder of this Agreement shall continue to be of full force and effect. 6.02 Recordation This Agreement shall be recorded in the Office of the Flathead county Clerk and 2"� Recorder. 6.03 Entire Agreement —Primacy This Agreement and the attachments, exhibits, plans, and reports referenced herein constitute the entire Agreement between the parties and may only be amended as set forth herein. In the event during the term of this Agreement, there is a variance between the provisions of this Agreement and any drawing or document submitted prior to execution of this Agreement, this Agreement shall take precedence. 6.04 Integration This Agreement, together with any attached exhibits and any addenda or amendments signed by the parties, integrates all negotiations and previous agreements between the parties and supercedes any other written or oral agreements or representations between the parties. This Agreement can be modified only in writing, signed by all parties hereto. 6.05 Binding Effect This Agreement shall be binding upon and inure to the benefit of the respective parties, heirs, successors and assigns. 22 i� 2250 Highway 93 North - KaGspell, MT 59901 Phone 406.751.2240 Fax 406.751.2288 Section 36 Initial Zoning PUD Application Application to the Tn City Planning Office and City of Kalispell August 13, 2001 This application for annexation and zoning is comprised of 3 parts. Each part is tabbed for easy reference. Part 1— Petition and Annexation Application Part II -- PUD Narrative (Section 27.21.030 (5)) Part III-- PUD Development Agreement • PETITION NO.: PETITION TO ANNEX. AND NOTICE OF WITHDRAWAL FROM RURAL FIRE DISTRICT The undersigned hereinafter referred to as Petitioner(s) respectfully petition the City Council of the City of Kalispell for annexation of the real property described below into the City of Kalispell. The Petitioner(s) requesting City of Kalispell annexation of the property described herein and further described in Exhibit A hereby mutually agree with the City of Kalispell that immediately upon annexation of the land all City of Kalispell municipal services will be provided to the property described herein on substantially the same basis and in the same manner as such services are provided or made available to other properties within the rest of the municipality. Petitioner(s) hereby state that there is no need to prepare a Municipal Annexation Service Plan for this annexation pursuant to Section 7-2-4610, M.C.A. since the parties are in agreement as to the provision of municipal services to the property requested to be annexed. The Petitioner(s) further herein express an intent to have the property as herein described withdrawn from the West Valley Rural Fire District under the provisions of Section 7-33-2127, Montana Code Annotated; and that incorporated into this Petition to Annex is the Notice requirement pursuant to said Section; and that upon proper adoption of an ordinance or resolution of annexation by the City Council of the City of Kalispell, the property shall be detracted from said district. In the event the property is not immediately annexed, the Petitioner(s) further agree(s) that this covenant shall run to, with, and be binding upon the title of the said real property, and shall be binding upon our heirs, assigns, successors in interest, purchasers, and any and all subsequent holders or owners of the above described property. This City hereby agrees to allow Petitioner(s) to connect and receive the utilities from the City of Kalispell. Qai,,"Uti2yQ.13, zaoj Peti oner/Owner U Date Department of Natural Resources & Conservation, State of Montana STATE OF MONTANA ) 0 : ss County of Flathead County On this —Lday of A MLA5f, �' II , before me, the undersigned, a Notary Public for the State of Montana, personally appeared os. ADa k (�,A known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he/she executed the same. IN'0&NI SS,A1I-1EREOF, I have hereunto set my hand and fixed my Notary Seal the day and year, in this certificate first above written. G� Notary Public, State of Montana Residing at LiG,'ir4�s�. My Commission expires: 10 - S-o Z STATE OF MONTANA ) : ss County of Flathead County On this day of , before me, the undersigned, a Notary Public for the State of Montana, personally appeared known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he/she executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notary Seal the day and year in this certificate first above written. Notary Public, State of Montana Residing at My Commission expires: STATE OF MONTANA ) ss County of Flathead On this day of before me, the undersigned, a Notary Public for The State of Montana, personally appeared and ,the and respectively, of the corporation that executed the foregoing instrument, and the persons who executed said instrument on behalf of said corporation, and acknowledged to me that such corporation executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notary Seal the day and year in this certificate first above written. Notary Public, State of Montana Residing at My Commission expires • Tri-City Planning Office 17 Second Street West Kalispell, MT 59901 Phone: (406)751.1850 PETITION FOR ANNEXATION AND INITIAL ZONING CITY OF KALISPELL NAME OF APPLICANT: State Of Montana C/O .Ton Dahlbereg MAIL ADDRESS: DNRC -- 2205 Meway 93 North CITY/STATE/ZIP: Kalispell, MT 59901 PHONE: 751-2240 INTEREST IN PROPERTY: Land administrator for State Other Parties of Interest to be Notified: PARTIES OF INTEREST: DNRC C/O David Greer MAIL ADDRESS: 2250 Highway 93 North CITY/STATE/ZIP: Kalispell, MT 59901 PHONE: 751-2243 INTEREST IN PROPERTY: Local state representative PLEASE COMPLETE THE FOLLOWING: Address of the property: C/O 2250 Highway 93 North Legal Description: (Lot and Block of Subdivision; Tract #) See attached legal (Section, Township, Range) (Attach metes and bounds as Exhibit A) The present zoning of the above property is: County AC-80 The proposed zoning of the above property is: City PUD (B-5, R-5, R-4) State the changed or changing conditions that make the proposed amendment necessary: Annexation and zoning request is consistent with current city/county policy for the property. ******************************************** The signing of this application signifies that the foregoing information is true and accurate based upon the best information available and further grants approval for F.R.D.O. staff to be present on the property for routine inspection during the annexation process. Zl� kz4- (ApOicant) ate) P f t r Exhibit A Area to be Annexed That portion of Section 36, Township 29 North, Range 22 West, Principal Meridian, Flathead County, Montana described as follows: The Southwest 1/4, the Northwest 1/4 and that portion of the Northeast 1/4 lying westerly of the westerly right-of-way line of U.S. Highway No. 93 as shown on Federal Aid Project Nos. F 5-3(32)115 and F 5-3(24)115, excepting therefrom the Southwest 1/4 of the Southwest 1/4 of the Northwest 1/4 and the Northwest 1/4 of the Northwest 1/4 of the Southwest 1/4 all in Section 36, Township 29 North, Range 22 West, containing 454.4 Acres of Land, more or less. Section 36 Initial Zoning PUD Nanudve A Comprehensive Approach to a Planned Community 'bta' ir, uym'h..'�.�ai��3 �rubG�:�'t .+�„�.r:,._ The Department of Natural Resources and Conservation (DNRC) is the management agency for a section of state-owned land, described in this application as Section 36. This land is located on the north side of Kalispell, between Four Mile Drive and West Reserve Drive. A map on the following page displays the location of the property. The property is managed for the benefit of the common schools of Montana. All lease income from the property is allocated to the budgets of schools throughout Montana. In recent years, DNRC has participated in a variety of public processes to identify income opportunities for the property. The current effort and subject of this application is to annex the state-owned land into the City of Kalispell and to apply City of Kalispell zoning classifications to the property. A zoning PUD overlay is proposed to help effectuate the planning objectives for the property. The PUD overlay will restrict the range of allowable uses, increase performance measures, identify phasing objectives, require infrastructure to be built in accordance to City of Kalispell design and construction standards, and establish a review process for proposed uses. fx^�� - s„ M "p ! A History OfwQrocees 4r t . The Kalispell City -County Growth Policy. The planning staff of the Flathead Regional Development Office initiated an effort to update the Kalispell City -County Master plan in 1996. The local office of the DNRC actively participated in that planning effort, but a Growth Policy has yet to be adopted. However, as a spin-off to that broader community process, DNRC prepared a Neighborhood Plan to guide land use decisions for Section 36. The Section 36 Neighborhood Plan. DNRC prepared the plan over a period of several years. The process included a comprehensive public involvement process, involving mailings, community meetings, and public hearings. The Plan was approved by the City of Kalispell and Flathead County in June 1999. Land Use Map: The Section 36 Plan includes a land use map that depicts four land use pods. A Mixed Commercial POD is identified in the area adjacent to U.S. Highway 93, between the proposed Highway 93 by-pass alignment and the center section line. A Mixed Professional POD is identified for an area primarily located in the N'h of Section 36 and north of the proposed U.S. Highway 93 by-pass. A Mixed Residential POD is identified for an area generally described as the SW'/a of Section 36. The SE'/a has PUD Narrative 0 t I 1000 500 0 1000 Scale to feet 26 III 25 Section 36 PUD Application Vicinity Map --North Kalispell Section 36, T29N R22W 35 i 36 West Rese&e Drive 136 /. . 23 I ' I r I I I I F 1 i I I L� 7th Standard Parallel North I I 36 25 1 Drive A L 31 Grandview Drive already been annexed into the City of Kalispell and is shown by the land use map as "Sports Fields". Plan Narrative: The narrative of the Section 36 Neighborhood Plan is a "Goals" and 'Policies' document. The development theme of each land use pod is defined by goals and policies but also included is a list of permitted or "acceptable" uses and various performance standards. Memorandum of Understanding (MOU): A MOU was jointly approved by the City, Flathead County, and State Board of Land Commissioners in May 2000. This document helps to clarify how the Neighborhood Plan would be implemented in joint cooperation with local governments. Under the provisions of the MOU, DNRC will be subject to local zoning and subdivision review of all proposed uses. In addition, improvements will be constructed to city standards and taxes will be paid on land and structures as development occurs. The MEPA Process. Subsequent to the adoption of the Section 36 Neighborhood Plan and MOU, DNRC prepared an Environmental Impact Statement (EIS) to analyze alternative plans for Section 36. DNRC was litigated by several organizations, alleging that DNRC had failed to prepare an environmental analysis [of the Section 36 Neighborhood Plan) under the provisions of the Montana Environmental Policy Act (MEPA). The need for preparing an "appropriate MEPA document" was upheld by the presiding judge. The process of preparing an EIS included the issuance of an (1) "Initial Proposal", (2) Draft Environmental Impact Statement (DEIS), (3) Final Environmental Impact Statement (FEIS), and (4) Record of Decision (ROD). As part of the environmental analysis, 4 land use scenarios, ranging from low -impact development to high impact development, were analyzed to determine the range of impacts and associated mitigation needs, especially related to issues of traffic, water supply, sewage collection, and economics. Based on the performed analysis and comments from the general public, the Record of Decision for the EIS requires DNRC to modify certain elements of the Section 36 Neighborhood Plan. These are discussed below and will be incorporated into the PUD Agreement Mixed Commercial POD: DNRC will prioritize the development of technology uses over retail commercial uses in this POD. This priority of use will persist so long as technology development continues to expand and be successful based upon a lyear, 5 year, and 10 year review as explained in the FEIS. Successful development of technology uses will permit the expansion of technology uses into a portion of the MIXED Professional POD (NE /a). Expansion of these uses into the adjoining land use POD may require an amendment to the Section 36 Neighborhood Plan, which will be pursued at that time of occurrence. Other uses, including general retail, will be permitted if technology development is not successful. A City of Kalispell Zoning Classification of B-5 is proposed with a PUD overlay. Mixed Professional POD: The ROD suggests two types of amendments to the Mixed. Professional POD. The first was discussed in the previous paragraph, wherein the area of the Mixed Professional POD would be reduced to permit expansion of technology uses beyond the existing area of the Mixed Commercial POD. This would also affect the preferred east to west in -fill pattern to the POD by delaying development opportunities in the NE'/a of Section 36 lying above the proposed highway by-pass alignment. Initial development in the Mixed Professional POD, prior to any final decision of expanding the area of the Mixed Commercial POD, would be closer to the mid -section line (north/south). Also affected by the ROD is the desire to promote the siting of a school and a natural resource agency campus near the west end of the POD. These objectives would be achieved by identifying a phasing exemption to the deferred development area identified in the land use map of the Section 36 Neighborhood Plan. It is anticipated that PUD Narrative i . • a plan amendment may be necessary before these uses will be permitted in the locations and in the time suggested by the ROD. A City of Kalispell Zoning Classification of R-5 is proposed with a PUD overlay. Mixed Residential POD: Suggested changes to this land use POD by the ROD is to . provide a site, within the next 10 years, for a school within the area designated by the Plan as "Deferred Development Area". This suggestion by the ROD will require an amendment to the Section 36 Neighborhood Plan. A City of Kalispell Zoning . Classification of R-4 is proposed with a PUD overlay that would permit a wide range of residential and office opportunities. .� C2 s lmp a ��•Ph 0 IP-P Proposal . , . It is the intent of DNRC to provide for planned development of Section 36 in accordance to the Record of Decision issued for the EIS. This includes the changes of development philosophy and emphasis described in the preceding section. The predominate objective of . DNRC is to seek increased revenue opportunities to the school trust by implementing a land . use plan that is sensitive to community design and economic opportunities. Major components of Plan implementation include: • Annexation of the entire property into the City limits of Kalispell; . • Zoning of the property to consider logical patterns of development, priority . . ® of uses, phasing, and development standards; • Extension of city infrastructure (water, sewer) to serve the intended uses; . and . • Local review of subdivision proposals. Major components of the PUD zoning include: • Limitation of allowable uses, including restriction of strip -type commercial uses; . • Architectural review and approval of building design; . • Requirement for common landscape features and other performance standards; • Restriction of allowable signage; • Phasing of utility and road improvements; and . • Anticipation of future utility and traffic mitigation needs. . 4 E The PUD Prelinunary Plan The property subject to this request for initial zoning are the state-owned lands located in the NE 1/4, NW '/4, and SW '/4 of Section 36, Township 29 N, Range 22 W, PMM, Flathead County. The SE '/4 is already annexed and zoned P-1. A private dairy occupies a portion of Section 36 near Stillwater Road. Approximately 454± acres are subject to the annexation and zoning request. The layout map (included at the end of this section) of the property includes the following features: • Topography at 4 foot contour intervals; • Perimeter public roads; • Location of proposed internal collector roads; • Controlled access locations to perimeter public roads; and • Land use PODS. The PUD Development Agreement describes the common area and open space objectives, which include, in part, a 20-foot landscape buffer adjacent to U.S. Highway 93 and a 10 foot buffer adjacent to West Reserve Drive. No developed facilities are currently located on the property. The layout plan identifies 3 distinct land use PODS. The development philosophy, including range of allowable uses and bulk and height allowances are described in the PUD Development Agreement. Subdivision review will test each proposed project for compliance with the zoning and ensure proper implementation of infrastructure requirements. tef�SpYnentFPafilfE t _� •J •, r�� ".swzt.�wa .tau 3za,d1. V An environmental impact statement (EIS) was prepared to evaluate alternative plans for Section 36. As part of this analysis, ranges of development scenarios were considered to evaluate impacts to the human and physical environment. Key components of the analysis dealt with "water", "sewer", and "traffic". A copy of a water and sewer extension plan for the property as envisioned over the next 20 years is attached as a separate exhibit. Water. The property is within the upper pressure zone of the City of Kalispell water distribution system. All developed uses in Section 36 will connect to the city system. At this time, the upper pressure zone has adequate storage and production capacity but is deficient in meeting a 4,000 gpm, 4-hour fire flow requirement. Additional storage, production capacity, booster pumping or a combination of each would be necessary to satisfy the 4 hour fire demand. As development increases within Section 36 and adjacent properties over the next 20 PUD Narrative years, an additional water supply source and storage facility may be necessary. It is possible that the existing irrigation well that serves the ball field complex in the SE 1/4 could be utilized as a source of domestic water and be integrated into the Kalispell water delivery system, as need demands. An elevated location near Four Mile Drive might also be suitable for a future storage tank if deemed necessary to satisfy storage deficiency. This topic is extensively discussed in the Section 36 DEIS, which is herein incorporated by reference. Subdivision review of proposed lease lots will determine the scope of required extensions and/or improvements to the system. Sewer. All developed uses in Section 36 will connect to the City of Kalispell's sewer system via the lift station at Grandview Drive. The lift station will eventually need to be improved as flows increase with development. Downstream improvements to the piping will also be necessary. The discussion of this topic is more fully explored in the Section 36 EIS, which is herein incorporated by reference. Subdivision review of proposed lease lots will determine the scope of required extensions and/or improvements to the system. Traffic. The existing transportation system in the vicinity of Section 36 is extensively described and discussed in the Section 36 DEIS so detailed discussion of this topic will be left with that source. The proposed collector road system of Section 36 is designed to limit access onto the adjoining public roads. Initial development in the ATE 1/4 of Section 36 will align the access to U.S. Highway 93 with the signaled approach to Mountain View Plaza. The internal collector road system will be completed in phases as warranted by increasing traffic from developed uses. All collector and local roads within Section 36 will be constructed to City of Kalispell design standards and be dedicated to the city following completion. Increasing traffic (trips) from Section 36 will require a variety of mitigation strategies to maintain acceptable Level of Service (LOS) at the on- and off -site intersections. This topic is more fully described in the Section 36 EIS, which is hereby incorporated by reference. Parking requirements will follow the space -to -use guidelines of the Kalispell Zoning Ordinance. Drainage. All drainage will be engineered to reain on Section 36. Drainage plans will be reviewed and approved concurrent with subdivision review. wC? ' eyti,x rc- 14rdhit aily7iemes, . .r.:. A variety of land use types might be associated with development of Section 36. Land use opportunities range from equestrian centers to industrial uses. Since development of Section 36 is likely to extend over a period of decades, it may not be appropriate to define a particular architectural theme for the entire property or even by land use POD. Each POD allows a mix of land use opportunities. (The PUD Development Agreement provides a general description of building and lot parameters, including provisions that require amenities on the back side of buildings when viewable from a public road and a requirement for earth tones.) Current expectations for building quality and design can be defined by representative properties in the Kalispell area. Included at the end of this section, are photographs of representative land use types that reflect the desired architectural elements, including roof relief, exterior color, wall trim, entry and window treatment, and wall composition. Mixed Commercial. In the Mixed Commercial POD, uses are likely to include (1) high tech facilities (offices, areas for storage and component assembly, shipping, etc), (2) general offices, (3) professional offices, (4) small retail, (5) large retail, and (6) "wired" motel. As with most tech structures, the front of the building will have considerable architectural amenities and landscaping. Landscaping will be used to soften the other features of the building, which often reflect warehouse type attributes. Small retail uses are expected to be clustered in groups as opposed to stand-alone. The cluster .must reflect a common architectural design. Large retail shall incorporate architectural amenities to the front of the W building, including textured or colored block, rock, and/or wood Vim. Lineal roofs are encouraged to incorporate architectural elements or change relief to discourage monotony. Offices are expected to incorporate wood, rock or brick trim. Single floor office buildings are encouraged to use pitched roofs. A motel shall incorporate brick and wood in the design. Mixed Professional. Representative uses in this land POD are likely to include professional offices, medical offices, and small neighborhood convenience retail. Wood, rock, or brick trim is expected in all structures. Wood, vinyl, brick, or colored steel textured siding is preferred over plywood or composition wood siding.. Neighborhood convenience retail shall be clustered as opposed to freestanding and reflect a common architectural design. Schools are expected to incorporate brick and wood, components with minimal exposure to the facing street of solid faced block or concrete walls. Mixed Residential. Representative uses in this land use POD could include single family dwellings, townhouses, apartment buildings, and general offices. All structures in this POD are expected to have pitched roofs. Trim shall include rock, wood, or brick. ex'b�{w� r , 3 psv '.��v.,y�. ® �+' anal a,a#; -+F" �C'" - k� ' i ^1 6`xi ©n�:ng'.i>uai �+.,.�d tl:�. �,�i•=, ; � iHIG.' ilr, 'rO, ri _r._ 2' v=,;i:z„=&.0 'a The vicinity map included with this narrative shows all adjacent subdivided and unsubdivided lands. Adjacent zoning reflects the current uses of the property. The SE r/ of Section 36 is zoned P-1. Public zoning also reflects the area of the college. The area of Mountain View Plaza is Zoned Commercial PUD. Residential properties to the north are zoned for single and multifamily uses. Most of the properties to the west are zone Agriculture (AG) 80. The subject property is zoned county AG-80. CbVenants Covenants are included as Exhibit F to the Planned Unit Development Agreement. 3 m y . , a rF Jm,. +... x �4�,�. �KrJ and Timing o DeV loprnent t . sa.. w. �: 3 Ir.. ; .,.. iTa, .,.: a� at The Section 36 Neighborhood Plan adopted in 1999 and as modified by the Record of Decision by DNRC on August 11, 2001 guides the future development of the property. The Plan suggests a development schedule that will last over several decades. It is anticipated that initial phases of development in the Mixed Commercial POD will begin in the fall of 2001. The general phasing philosophy of development is described in the Plan and in the PUD Development Agreement. Common area within the property will be managed by a Property Owners Association, which provides for assessments to finance the care of the common features. The association is established by the covenants of the PUD Development Agreement. In situations where there are only lease lots, DNRC will specify common area obligations to the individual lessees. DNRC will require lessees to construct the required common area and a separate maintenance fee will be assessed to cover the related expenses. Only landscaped areas are expected to be "Common Area". All the roads will be dedicated to the City. PUD Narrative 7 All future lots will be subject to subdivision review. j DNRC is responsible for extending all required infrastructure to the approved lots. The infrastructure improvements will be guaranteed through the subdivision process, which allows for bonding as necessary. t u Other Information" a ,,iw The subject property has been subject to dozens of public meetings and hearings and has been extensively evaluated via the plan amendment process and environmental impact statement process. In addition to the materials included with this application, DNRC encourages the is reader to consult these other relevant documents for more information concerning the suitability of the property for the intended purposes. is 8 Section 36 Layout Map 1 Section 36, T29N R22W 3 zs. kjeserve Drive decl d my road �30 35 36 ' ,� _ � _ 31 m I O I t i" / j./ Mi d Professl n I 600 300 0 600 1300 d a 1' � . s<aiemf.t LEGEND 7 D I ate' M' Co rcj�l ,_- .j. s6cnon -- .� Ousner section comer ® Center quarter section comer I y5 I ® Driveway approach I ey7 1 I m BPA tower 1 / u o: •� c I �. .�r\ p I 0 1 Mi>t e s iiiii tial Prree/l' In ry p s iel a i - 36 - n _ _ 31 e®,e+tmrn remxstw i 6 2 1 i ; rout Mile Drive, 30.00' declared county road Step-down design to fit with topography with expansive window treatment Office with broken wall pattern, wood trim, and expansive window treatment Motel with multi -angled wall, covered entry, brick siding, modified slope pitched roof Nursing home with multiple wall angles, covered entry, natural tones, pitched roof Office with variable roof line, staggered wall line, brick trim, natural tones EYE -- P--'�-2man'm Attached office units with pitched roof, broken wall lines, brick trim, natural tones Covered entry with pitched roof, variable wall angles, wood trim Office with variable roof line, staggered wall line, variable trim Pitched roof, variable roof line, covered entry, brick and wood trim 77, Simple signage, colored trim, architectural lighting, slight wall variation r r• rj Restaurant with brick trim with exterior amenities including awnings and decorative lighting Restaurant with natural wood and rock trim r ®0 ®S Multi -family dwelling with textured vinyl siding, pitched roof, and broken wall pattern. Duplex design with variable roof outline, brick trim, and natural colors. • rj rJ School with variable roof line, natural tone, and brick trim Tech building with wood trim, broken wall line, roof canopy entrance, and expansive window treatment Small retail with architectural amenities including awnings, light fixtures, simple signage, and covered entry Gas and convenience mart with residential amenities including pitched roof, natural wood trim, and earth tones W • • a Financial building with variable roof line, wood and rock trim, and expansive window treatment Financial building with variable roof line, wood and rock trim, natural colors, and expansive window treatment ! ! !• NED UNIT DEVELOPMENT AGREEMENT PARTIESANDPURPOSE: This Agreementmadeandentered into this day of , 2001 is by and between State of Montana Department of Natural Resources Er Conservation (hereinafter "DNRC"), with its office and principal place of business located at 2250 Highway 93 North; and the City of Kalispell, a municipal corporation (hereinafter "City"), with its office and principal place of business located at 312 - 1 st Avenue East, Kalispell, Montana 59901 : WITNESSETH: WHEREAS, The State of Montana Department of Natural Resources & Conservation is the owner of certain real property located in Flathead County, Montana, which is further described in Exhibit "A" attached hereto and made a part hereof, and which hereinafter is referred to as the "Subject Property"; and, WHEREAS, The Subject Property is subject to a request for annexation and initial zoning; and, WHEREAS, DNRC is desirous of applying a Planned Unit Development (PUD) overlay to city zoning classifications; and, WHEREAS, In order to allow the PUD, assure the installation of Infrastructure within the "Subject Property", permit connections to the CITY utility systems, and prescribe the permitted uses within the requested zoning areas, the parties hereto determine it is to be in their best interests to enter into this Planned Unit Development Agreement; and, WHEREAS, (i) Use and development of the property is subject to the provisions of the Section 36 Neighborhood Plan, jointly adopted by the City of Kalispell and Board of County Commissioners in 1999; (ii) the adopted plan is further subject to an environmental impact statement performed underthe Montana _Environmental_ Policy Act; (iii) and further subject to the Record Of Decision (ROD) which establishes additional parameters to development and (iv) a Memorandum Of Understanding (MOU) - 1 - establishes policy for taxation, local review of projects, and other • development considerations; and, WHEREAS, DNRC is requesting annexation of the property into the City of Kalispell with City of Kalispell Zoning classifications of B-5 to be applied to the Mixed Commercial POD, R-5 to the Mixed Professional POD, and R-4 to the Mixed Residential POD; and, WHEREAS, It is desirous by DNRC to further restrict the allowances of these City of Kalispell Zoning classifications to the property and to provide additional standards for development consistent with the Plan (identified bythe ROD) byapplying a PUD overlay to the underlying zoning classifications. I. DEFINITIONS 1.01 Agreement shall mean this Planned Unit Development Agreement between DNRC, and CITY. 1 .02 Building Department shall mean the Building Department of • the City of Kalispell. 1.03 CITY shall mean the City of Kalispell, Montana. 1.04 City Council shall mean the City Council of the City of Kalispell, Montana. 1.05 Developer shall mean DNRC, its agents, designees and assigns. 1.06 Director of Public Works shall mean the Director of Public Works of the City of Kalispell, Montana. 1.07 Easement(s) means the Easement(s) described in §3.04 of this Agreement. 1.08 Section 36 Plan means the land use plan approved by the City of Kalispell and Board of Flathead County Commissioners and 2 - • 0• as amended by the Record of Decision issued by DNRC on August 11 , 2001, all pertaining to the School Trust Lands located in Section 36, T29N-R22W, Flathead County Montana. 1.09 Mixed Commercial means that portion of the Subject Property generally lying in the NE'A of Section 36 and as more particularly described in Exhibit B. 1.10 Mixed Professional means that portion of the Subject Property lying generally in the NW 1/4 of Section 36 and as more particularly described in Exhibit C. 1.11 Mixed Residential means that portion of the Subject Property lying generally in the SW'/4 of Section 36 and as more particularly described in Exhibit D. 1.12 Sports Fields means that portion of the property generally located in the SE 1/4 of Section 36 and already zoned P-1 and previously annexed into the City of Kalispell. 1 .13 Subject Property or Subject Area means the real property described in Exhibit A. 1.14 Memorandum of Understanding means a 3-party agreement entered into by DNRC, City of Kalispell, and Board of Flathead County Commissioners dated April 19, 2001. 1 .15 Draft Environmental Impact Statement means a document released as a Draft Environmental Impact Statement (DEIS) by DNRC on June 13, 2001 to evaluate the impacts to the physical and human environment relative to proposed actions associated with school trust lands located in Section 36, Township 29 N, Range 22 W, P.M.M., Flathead County Montana. 1.16 Final Environmental Impact Statement means a document released as a Final Environmental Impact Statement (FEIS) by DNRC on July 26, 2001 relative to proposed actions associated with school trust lands located in Section 36, Township 29 N, Range 22 W, P.M.M., Flathead County Montana. - 3 - 1.17 Record of Decision means a decision document issued by . DNRC on August 11, 2001, that identifies selective alternatives related to a land use plan for Section 36 and a proposal to lease land in section 36 to construct a business and technology park. 1.18 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. 1.19 Infrastructure means all water, sewer and storm drainage systems that will be dedicated to the public and have been installed in accordance with the Montana Public Works Standard Specifications and the City of Kalispell Standards for Design and Construction. In addition, Infrastructure shall include roads that are designed and constructed in accordance with the Montana Public Works Standards for Design and Construction. Said Infrastructure shall consist of various public utilities and dedicated streets. The Infrastructure. required to serve developed facilities and to provide connection to future phases of development will be identified concurrent with subdivision review. Notwithstanding any of the foregoing, excluded from these terms are: building construction; parking lot paving; final landscaping in and around the buildings and parking lot(s); lighting; signage; and the service lines to each building. 1.20 Section 36 means land owned by the State of Montana as School Trust Lands (Section 36, T 29 N, R 22 W, P.M.M., Flathead. County Montana) and administered by the DNRC and as more precisely described by Exhibit A. 1 .21 School Trust Lands mean lands granted to the state of Montana by the Enabling Act of February 22,1889 (and subsequent acts) for support of the common schools. 1.22 DNRC means State of Montana/Department of Natural Resources and Conservation. - 4 - 0 II. GENERAL DEVELOPMENT AND USE OF THE SUBJECT PROPERTY 2.01 Development Overview (A) Subject to the other provisions of this Agreement, any use/development of the Subject Property occurring after the effective date of this Agreement shall substantially conform to and comply with the provisions of the PUD Kalispell Zoning of Section 36 and this Agreement with the documents and drawings annexed hereto. (B) It is agreed between the parties, that the development of the Subject Property will include the following: (1) A land use map, which identifies three land use pods and a proposed alignment of internal collector roads to be built in phases as development occurs (Exhibit E); (2) A list of permitted uses associated with each land use pod; (3) A phasing schedule of development; (4) A land use plan as identified in the Section 36 Final Environmental Impact Statement and associated Record of Decision; (5) Annexation of the Subject property into the city limits of Kalispell; (6) Extension of city water and sewer services by lessees of DNRC to serve the developed facilities of the Subject Property; (7) Adherence to the Memorandum of Understanding jointly approved by the City of Kalispell, Flathead County, and DNRC; and (8) Compliance with the PUD zoning regulations and City of Kalispell Subdivision regulations. (C) Development themes for each Land Use POD being annexed into the City of Kalispell are as follows: (1) Mixed Commercial a district providing a variety of commercial industries are • appropriate and where community design to minimize the appearance of strip commercial development is desirable, including but not limited to all uses set forth in Kalispell Zoning Ordinance Classification B-5 and as otherwise modified by this Agreement. Strip -type uses characterized.by substantial outdoor storage and display of products, such as car lots and equipment and trailer sales are specifically excluded. Also specifically excluded as permitted uses are gaming/gambling establishments of any kind, including casinos. The range of permitted uses are intended to permit a variety of uses associated with the retail, professional services, or technology industries but does not necessarily limit or restrict opportunities for continued agricultural operations or practices. However, technology uses are given priority consideration consistent with the Record of Decision issued by DNRC. (2) Mixed Professional a district providing opportunities for development of off ices, office parks, and compatible uses in a fashion that promotes clustering of uses and architectural control, including but not limited to all uses set forth in Kalispell Zoning Ordinance Classification R-5 and as otherwise modified by this Agreement. The phasing limitations anticipated by the Section 36 Neighborhood Plan would be modified to encourage development of schools and a resource agency office park in this POD consistent with the Record of Decision issued by DNRC. (3) Mixed Residential a district providing opportunities for development of residential uses, offices, and other compatible uses in a - 6 - 0. .0 fashion that promotes clustering of uses and architectural control, including but not limited to all uses set forth in Kalispell Zoning Ordinance Classification R-4 and as otherwise modified by this Agreement. A land exchange process will be encouraged to facilitate opportunities for private ownership and development of this POD. The phasing limitations anticipated by the Section 36 Neighborhood Plan would be modified to encourage development of schools in this POD consistent with the Record of Decision issued by DNRC. (D) The creation of individual lots (or lease lots) will be subject to subdivision review concurrent with specific project proposals. Subdivision approval will verify compliance with the provisions of the PUD Agreement and covenants and identify requirements for extension of utility services. Bonding requirements to guarantee completion of the required infrastructure (roads, water, sewer, etc) will be accomplished via the subdivision approval process. Infrastructure improvements shall consider the needs of future development within each POD, such as planning for road, water, and sewer extensions beyond the immediate project area. (E) General performance standards applicable to the Subject Property are as follows: (1) Transportation and Parking a. General access to this district from U.S. Highway 93 shall be limited to no more than 2 approaches. New approaches onto Reserve Drive, Stillwater Road, and Four Mile Drive shall generally be limited to a minimum spacing distance of 1,300 feet or as otherwise authorized by the access permitting agency; b. All uses shall have direct access from - 7 - the internal road system. No direct access to . a particular use shall be permitted from the Highway or the other perimeter public roads as listed in la, above; c. The collector road system shall be as generally shown by Exhibit E and as more precisely aligned by subsequent engineering analysis, use patterns, and subdivision review; d. All roadway improvements shall be built in accordance with city of Kalispell road design standards; e. Roadway design shall include provisions for landscape boulevards and sidewalks; f. Lighting shall be shielded and directed downward; and, g. Parking space requirements and general parking lot design shall be guided by the parking and loading provisions of the City of Kalispell Zoning Regulations, except as noted herein. Parking landscape requirements (see 27.26.030(6), KZO) may be satisfied by common area landscaping adjoining any parking area. Front and side yard parking shall be permitted in the Mixed Professional Office and Mixed Commercial PODS as described in Section 27.26.030(2)(e)l) and 27.26.030(2)(e)2), KZO,respectively. (2) Landscaping a. Landscaping, to include lawn, shrubs, trees, and/or rock gardens, shall comprise all open spaces within the boundaries of the yH 0• parent lease lot. Parking lots may extend to within 5 feet of any lot/lease lot boundary. b. Buildings shall be set back a minimum of 20 feet from the side, front, and rear of the parent (not sublots) lot/lease lines. C. Parking lots serving multiple businesses where the area for parking spaces exceeds a lineal length or width of 270 feet shall include internal landscape islands having minimum dimensions of 9 feet by 18 feet at a ratio of I island for every 15 continuous parking spaces when such spaces are located internal to the parking lot (not abutting the perimeter boundary to the parking lot or store front); d. A landscape boulevard having a minimum width of 4 feet shall parallel both sides of the collector roads shown on the neighborhood plan map. Street trees acceptable to the City of Kalispell shall be planted at 40 to 50 foot intervals as appropriate. e. Sidewalks or pathways shall connect developed properties to the roadside sidewalks (see le, above); f. All landscaped areas shall be irrigated and routinely maintained; and g. An irrigated landscape corridor of at least 20 feet in width shall parallel the right of way of U.S. Highway 93 adjacent to the commercial POD. The corridor should include undulating topography and have a mix of tree plantings with a ground cover of predominately lawn. A similar landscape - 9 - 1 1 / / / / common corridor, 10 feet in width shall • parallel West Reserve Drive and be completed in phases to correspond with development activity. 3. Building and [lease] Lot Parameters a. Buildings should not exceed 35 feet above natural grade. Architectural enhancements of building facades extending above 35 feet are not necessarily excluded but are subject to review and approval by the City of Kalispell Site Development Review Committee; b. Applied finishes of buildings shall be predominately earth tone; c. Buildings shall have an orientation towards the internal road system; d. Ground and wall signs may be used to identify a single use lease lot or multiple uses within a common lot/lease area. Ground signs shall have natural earth tones and not contain any exterior plastic, plexiglass, or similar components. The ground sign shall not have internal lighting or sign -mounted external lighting. Shielded lighting may be provided from ground -mounted fixtures directed towards the sign face. Ground signs may have a concrete or similar mounting base but in no situation shall the total height of the sign exceed 8 feet. Total ground sign area shall not exceed 160 sq ft. Wall signs may have internal lighting and shall not exceed a sign face area of 80 sq ft.; e. In situations involving a commercial or office town home, condominium or sublot - 10 - 0 • so design, only the parent lot is eligible for a common ground sign. Individual uses are eligible for a wall sign if the use has outside frontage. A common wall sign may be appropriate to identify a building having multiple tenants. A common signage plan that involves other types of building signage, such as canopy signage, may be permitted subject to the review and approval of the City of Kalispell Site Development Review Committee. Residential uses shall be permitted signage as otherwise permitted by the City of Kalispell zoning regulations. All other provisions of the Kalispell sign regulations shall apply when consistent with the restrictions set forth herein; f. The exterior appearance of commercial buildings with "backs" facing, adjacent, and visible from Highway 93 shall contain architectural elements found on the "front" portions of the buildings. Walls and surface planes should be broken up in such a manner as to create a visual interest, avoiding monotony; g. Lease lots with single or multiple buildings shall have sufficient area to accommodate the size of the proposed building(s) and required on -site parking plus sufficient area for landscaping exterior to the building and parking lot (see 2a & 2b, above); h. A single lease lot may contain buildings with multiple tenants and/or uses or be comprised of multiple attached or detached buildings. In such situations, landscaping, parking, and internal access shall be common to all buildings within the lease lot; and i. Commercial buildings or combination • of buildings on a single lease lot exceeding 60,000 sq ft total gross floor area (where no sublots have been established) shall be set back a minimum distance of 300 feet from U.S. Highway 93. 4. Extension of Services a.. All required services shall be underground; and b. Annexation and provision of city services shall be subject to the approval of the City of Kalispell. 5. Growth Management a. Development of property shall conform to the general provisions of the neighborhood plan consistent with Section 27.22.120, KZO. b. Phase I (Exhibit B) is the Mixed Commercial Pod. i. Clustering of uses is preferred to encourage sharing of roads, parking, utilities, and common design. However, separation of uses, such as "large" from "small" or "commercial" from "industrial" may be appropriate within the Commercial POD. ii. Development design is intended to avoid a "strip" commercial appearance with specific exclusion of certain uses. MIKM • • Do iii. The area of the Mixed Commercial POD will be extended to include the entire NE '/a of Section 36 and the extended area will be held as a reserve area for expansion of technology uses beyond the original POD area as described by Exhibit B-1. iv. That portion of the Mixed Commercial POD lying southerly of the by-pass alignment will offer leases primarily to business (offices) and technology uses and compatible commercial uses, such as small retail convenience uses (delis, restaurants, copy shop, "wired" motel, etc). Retail stores exceeding 10,000 square feet per store front will not be permitted. No retail will be permitted until at least 20,000 square feet of non - retail space is leased and operating within the POD. v. Expansion of business and technology uses into the expansion area will not be permitted until at least 60% of the originally -sized Mixed Commercial POD is leased for development. vi. If business and technology uses fail to achieve a 40,000 square foot floor area threshold within 5 years following the Record of Decision for the EIS or if the proposed business and technology park as proposed by Hampstead Partners fails to proceed within 1 - 13 - year following the Record of • Decision, then the original Mixed Commercial and Mixed Professional boundaries (Exhibit B) shall be restored and the retail restrictions removed to permit all the uses listed in Section 2.02 of this Agreement. vii. If business and technology uses fail to achieve a 120,000 square feet floor area threshold within 10 years following the Record of Decision for the EIS, then the boundaries of the original Mixed Commercial POD (Exhibit B) shall be restored and the retail restrictions removed to permit all the uses listed in Section 2.02 of this Agreement. c. Phase II (Exhibit C) is the Mixed Professional POD. i. Clustering of uses is preferred to encourage sharing of roads, parking, utilities, common design, and to prevent a scattered development pattern within the POD. ii. Infill of developed uses, with some exceptions, such as schools, agricultural facilities, and equestrian facilities, shall be from east to west. The "Section 36 Neighborhood Plan Map" also designates an area along Stillwater Road that is excluded from non- agricultural development until the - 14 - A 00 :• year 2010. This deferred development area is modified by the Record of Decision to allow schools and a natural resource agency campus to build at anytime within the Mixed Professional POD. iii. Development of non- agricultural uses shall be restricted to no more than 20% of this POD until at least 50% of the Mixed Commercial POD (Exhibit B) is leased for development. School, agency campus, and equestrian facilities may be permitted at any time and are not subject to the 20% calculation. iv. That portion of the NE 1/4 of Section 36 lying within the Mixed Professional POD may be added to the area of the Mixed Commercial POD as described in (b) above. The amended legal description of the Mixed Commercial POD is described in Exhibit C-1 . The infill pattern of the Mixed Professional POD would need to reflect this reserve area for the future expansion of the Mixed Commercial POD. d. Phase III is the Mixed Residential POD. i. Clustering of uses is preferred to encourage sharing of roads, parking, utilities, common design, and to prevent a scattered development pattern within the - 15 - POD. ii. Infill of developed uses, with some exceptions, such as schools, agricultural facilities, and equestrian facilities, shall be from south to north or from east to west. The "Section 36 Neighborhood Plan Map" also designates an area along Stillwater Road that is excluded from non-agricultural development until the year 2010. This deferred development area is modified by the Record of Decision to allow schools to build at any time within the Mixed Residential POD, including the deferred development area. iii. Development of non- residential and nonagricultural uses • shall be restricted to no more than 20% of this POD until at least 50% of the Mixed Professional POD is leased for development or 50% of this POD is occupied by residential uses, whichever comes first. This limitation does not apply to public facilities. 6. Supplementary Regulations a. Accessory uses shall be permitted as appropriate to a particular use and as generally set forth in Section 27.22.020 et seq, KZO. Subsections 2a and 2b of that section of the KZO shall generally apply to residential uses within any portion of Section 36. Subsections 2d and 2e, KZO, would apply as appropriate to non-residential uses in - 16 - 0 any portion of Section 36. b. The greenbelt provisions of Section 27.22.050 shall be interpreted and applied concurrent with subdivision review. c. The principal structure provisions of Section 27.22.060, KZO, as applicable to "B", "P", and "I" districts shall apply to the Mixed Commercial and Mixed Professional PODS so as to permit multiple structures within a single lot or lease lot. d. The creation of sublots (for leasing purposes) may be appropriate in situations involving residential, commercial, office, and industrial uses. Section 27.22.130, KZO, is hereby amended to permit the creation of sublots in the Mixed Commercial, Mixed Professional Office, and Mixed Residential PODS of Section 36. e. All other provisions of the Chapter 27.22 of the City of Kalispell Zoning Regulations shall apply as appropriate. (F) Covenants: Draft covenants are attached as Exhibit F. Prior to construction of any building improvements or concurrent with subdivision review, final covenants shall be completed and recorded. The City shall review the covenants for consistency with this PUD Agreement and seek a revision to the covenants as necessary to comply with the conditions of approval of the PUD. 2.02 Uses (A) The uses allowed in the PUD shall be those uses generally allowed under the following zoning classifications and as otherwise limited herein: 1) Mixed Commercial POD —Zoning Classification - 17 - B-5 2) Mixed Professional POD —Zoning Classification R-5 3) Mixed Residential POD — Zoning Classification R-4 (B) The B-5 zoning district is limited to the following permitted uses. 1) Agriculture (farming, livestock, riding academies, stables, horticulture, nursery, etc) 2) Automobile service (fuel, wash, mechanical repair, tires, etc) 3) Barber & beauty services, massage parlor, etc 4) Cultural facilities (museums, theaters, libraries, etc) 5) Educational . facilities (private and public schools, colleges, universities, trade schools, music, dance, theater lessons, educational research or incubator facilities, etc) 6) Financial services and institutions (banks, credit unions, mortgage companies, savings & loans, etc) 7) Healthcare (medical offices/clinics, dental/orthodontic, in-patient/outpatient facilities, pharmacies, diagnostic services and treatment, etc) 8) Office, professional/governmental 9) Park, private or public (may include open space, trails, passive or developed facilities, etc) 10) Public assembly buildings (assembly halls, coliseums, stadiums, convention center, etc) 1 1) Public or quasi public buildings/structures (fire/law enforcement stations, community /homeowner facilities, water tower, electrical distribution/stations lines, telephone relay equipment, etc) 12) Radio/television broadcast stations, internet companies, etc - 18 13) Recreational facilities, outdoor/indoor, private/public or quasi -public, commercial/non-commercial (tennis courts, bowling alley, golf course, ice skating arenas, ball fields, swimming pool, zoo, amusement park, community center gym, health/fitness club, driving range, etc) 14) Research, technical, or business parks (may include indoor assembly of parts, limited outdoor storage, product distribution) 15) Restaurant (deli, bakery, fast food, sit-down, beverage shop, drive -through, etc) 16) Retail facilities/enterprises (clothing, convenience, food, sporting, book, office products, drug, computer, phone, hardware, tire, plumbing, electrical, furniture, art, household, gifts, mall, warehouse discount, etc) 17) Tourist accommodations (motels, hotels, bed & breakfast, campground, recreational vehicle park, etc) 18) Veterinary services and facilities 19) Worship buildings (churches, synagogues, etc) (C) The R-5 zoning district is limited to the following permitted uses. 1) Agriculture (farming, livestock, riding academies, stables, horticulture, nursery, etc) 2) Automobile convenience (fuel, wash, Er convenience retail, only, i.e. no mechanical service) 3) Barber & beauty services, massage parlor, etc 4) Cultural facilities (museums, theaters, libraries, etc) 5) Educational facilities (private and public schools, colleges, universities, trade schools, music, dance, theater lessons, educational research or incubator facilities, etc) - 19 - 6) Financial services and institutions (banks, • credit unions, mortgage companies, savings & loans, etc) 7) Food/grocery store 8) Healthcare (medical offices/clinics, dental/orthodontic, in-patient/outpatient facilities, pharmacies, diagnostic services and treatment, etc) 9) Office, professional/governmental 10) Park, private or public (may include open space, trails, passive or developed facilities;. etc) 11) Public or quasi public buildings/structures (fire/law enforcement stations, community /homeowner facilities, water tower, electrical distribution/stations lines, telephone relay equipment, etc) 12) Radio/television broadcast stations, internet companies, etc 13) Recreational facilities, outdoor/indoor, private/public or quasi -public, • commercial/non-commercial (tennis courts, bowling alley, golf course, ice skating arenas, ball fields, swimming pool, zoo, amusement park, community center gym, health/fitness club, driving range, etc) 14) Restaurant (excludes food drive -up service but permits drive -up beverage service and take and bake establishments and sit-down facilities) 15) Retail enterprises less than 3000 square feet in gross floor area (excludes tavern, gaming, or casino facilities/operations) 16) Veterinary services and facilities 17) Worship buildings (churches, synagogues, etc) All other uses otherwise listed as permitted or conditionally permitted in the R-5 zoning classification may be considered only as conditionally permitted uses. - 20 - 0 (D) The R-4 zoning district is limited to the following permitted uses. 1) Agriculture (farming, livestock, riding academies, stables, horticulture, nursery, etc) 2) Educational facilities (services/facilities for pre -K or K-12 only) 3) Office, professional/governmental 4) Park, private or public (may include open space, trails, passive or developed facilities, etc) 5) Public or quasi public buildings/structures (fire/law enforcement stations, community /homeowner facilities, water tower, electrical distribution/stations lines, telephone relay equipment, etc) 6) Recreational facilities (limited to non- commercial facilities) 7) Residential (day care or day care centers; dormitories or fraternities (college); dwellings: single family; duplex; or multi -family; manufactured home park (class "A" only); Nursing homes and elder care; retirement home, etc) 8) Worship buildings (churches, synagogues, etc) All other uses otherwise listed as permitted or conditionally permitted in the R-4 zoning classification may be considered as conditionally permitted uses. (E) Property development standards for the B-5 zoning district relative to (1) minimum lot area, (2) minimum lot width, (3) minimum yards, (4) maximum building height, (5) permitted lot coverage, (6) off-street parking, and (7) maximum fence height shall be consistent with Section 27.17.040, City of Kalispell Zoning Ordinance (KZO) unless otherwise specified herein by the listed performance standards or by language within the adopted neighborhood plan (see - 21 - Section 27.22.120, KZO). • (F) Property development standards for the R-5 Zoning district relative to (1) minimum lot area, (2) minimum lot width, (3) minimum yards, (4) maximum building height, (5) permitted lot coverage, (6) off-street parking, and (7) maximum fence height shall be consistent with Section 27.08.040, City of Kalispell Zoning Ordinance (KZO) unless otherwise specified herein by the listed performance standards or by language within the adopted neighborhood plan (see Section 27.22.120, KZO). (G) Property development standards for the R-4 zoning district relative to (1) minimum lot area, (2) minimum lot width, (3) minimum yards, (4) maximum building height, (5) permitted lot coverage, (6) off-street parking, and (7) maximum fence height shall be consistent with Section 27.07.040, City of Kalispell Zoning Ordinance (KZO) unless otherwise specified herein by the listed performance standards or by language within the adopted neighborhood plan (see Section 27.22.120, KZO). (H) DNRC shall require all proposed uses to be subject to architectural review. All structures shall conform to the relevant City of Kalispell Building Department regulations. Architectural consistency between building types within each POD is desired. [Since development of this property is likely to expand over several decades and styles change, some flexibility in design is desirable and expected.] The covenants establish architectural review authority for all proposed uses. 1) Landscape features are an important component of the developed properties. Landscaping is intended to complement the travel ways, parking lots, buildings, lots, and common areas ( see 2.01 E (1), (2), and (3) of - 22 - • • this Agreement). 2) Landscape materials shall be comprised of ornamental and native plant species common to the general community. Boulevard trees shall be consistent with the approved species list of the City of Kalispell. 3) Exterior lighting along travel ways and parking lots should be directed downward. Ornamental lighting along pathways and parking lots is encouraged. Low intensity lighting (exterior) may be appropriate to add architectural interest to certain features of a building face or building signage. Lighting directed upward to illuminate tree canopies or .building overhangs may provide attractive accents. 4) Signage on buildings is intended to be complimentary to the building design and add architectural interest to the structure. Common signage, including entrance • signage, is intended to be low profile and comprised of materials complimentary to the building structures (see Section 2.01 E (3) of this Agreement). 5) Building design is an important consideration in helping to define the quality of the built environment. Each land use POD allows a mix of different land use types. Landscaping and other common features will provide one form of community linkage and identity. The other linkage will be building architecture. In general terms, all commercial buildings should seek to have architecturally enhanced facades and broken roof and wall lines to minimize monotony of design. Expectations of building design common to all land use types will include the following components. 0 a. Exterior wall colors should harmonize with the site and - 23 - surrounding buildings. The pre- • dominate tone on building faces should tend toward warm earthy hues, whether in the natural patina or weathered color of the wall surface itself or the color of the paint stain or other coating. The color of concrete products on building faces should be not be achieved from painting the surface. The use of materials such as wood, brick or stone for trim material is encouraged. b. Large, rectangular masses should be avoided by incorporating offsets in the wall and roof. A.change in the plain of the walls, changing the direction or providing some variety in the roof form gives diversity and visual interest. Facades greater than 120 feet in length must exhibit a prominent shift in the wall. c. Commercial buildings (non- residential) should place an emphasis on entry. Entries should be a prominent component of the building face by providing an architectural covered or recessed entry with modified roof accent and increased usage of windows and trim. d. All residential roofs must be pitched. Commercial roofs may be pitched or flat. Brightly colored roof material is prohibited as are reflective metals. All roof - 24 - mechanical systems shall be shielded from view or incorporated into architectural features. Roof design shall incorporate architectural relief if building foot print size is greater than 20,000 square feet. e. Extensive use of windows is encouraged to break up building planes or add architectural interest to building facades or other walls facing public view. f. Franchise architecture is subject to modification to achieve the sign, color, and building style objectives set forth by this Agreement. g. Architectural elements of the front of the building shall be incorporated into the back of buildings when the back of the building is visually accessible from U.S. Highway 93. 2.03 Ownership The State of Montana may retain ownership of the Subject Property or leased parcels for the development and use by third parties. This Agreement is binding on the owners, successors and assigns inclusive of lessees of the property described in Exhibit A attached hereto. 2.04 Relationship to Zoning Ordinance Except as specifically modified or superseded by this Agreement and attached drawings or the PUD Application of DNRC, the laws, rules, and regulations of the City of Kalispell -2s- governing the use and development of land and buildings, • including the Kalispell Zoning Ordinance as it now exists or as amended, shall apply to the Subject Property. 2.05 Effectiveness The provisions of this Agreement shall become effective simultaneously with approval of the PUD Ordinance. III. SITE CONDITIONS 3.01 Development The Subject Property shall be developed in substantial compliance with the Plan selected and identified by the Record of Decision issued by DNRC on August 10, 2001 and as described in this Agreement. 3.02 Access (A) Primary access to the Subject Property shall be as • shown on the land use map (Exhibit E) of the Plan. (B) DNRC has completed a comprehensive traffic impact study, which identifies all expected traffic impacts and proposals for mitigation. (C) DNRC will obtain all necessary access permits from the Montana Department of Transportation and/or Flathead County Road Department and CITY prior to development of any uses that require access to a particular public road. (D) DNRC agrees to be responsible for all 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, West Reserve Drive, Stillwater Road and Four Mile Drive indicated by the traffic study. - 26 - • n H •0 •• (E) All primary and secondary entrances shall be completed to CITY standards prior to occupancy permits being issued for any site utilizing said entrances for access. (F) Emergencyfire, ambulance, police and publicvehicle access shall be at all times available through said primary and secondary access without impediment. 3.03 Private Internal Roadways and Sidewalks (A) DNRC acknowledges that the development of the Subject Property includes development, at DNRC's expense, of internal roadways providing access to the lots within the PUD. (B) DNRC agrees that the interior roadways within the PUD shall be constructed to CITY standards with Curb, gutter, and sidewalks on at least one side of the roadways, in accordance with the proposed Site drawings and applicable City Standards for Design and Construction for local and collector streets. A paved pedestrian/bike path will generally follow the collector roads on the side opposite the sidewalk. (C) DNRC agrees that they will dedicate all internal streets, boulevards, and sidewalks to the City of Kalispell upon completion. 3.04 Sewer and Water (A) Sanitary sewer service to the Subject Area shall be accomplished via extension of sewer mains to the lift station at Grandview Drive and as otherwise determined by subdivision review. (B) Water service to the Subject Property shall be provided as determined by subdivision review. (C) If a well is used on the premises, it shall not in any - 27 - r way be connected to the CITY water supply system without prior consent and approval by the City of Kalispell. (D) All sanitary sewer and water utilities shall be designed and installed in accordance with the City of Kalispell's Standards for Design and Construction. (E) All utility Infrastructure, collector, and local roads located within the subject Property shall be dedicated to the public upon completion. (F) DNRC agrees to obtain all necessary easements for the extension of water and sewer to the Subject Property. In addition, DNRC will grant to CITY any and all easements necessary for CITY to perform maintenance of water and sewer lines installed pursuant to the Agreement. (G) In the event that CITY requires installation of water and/or sewer lines larger than those required to service • the current needs of DNRC 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 portion thereof, during any phase of development of the Subject Property. (1) Following completion of installation of the sewer and water lines on the Subject Property by DNRC, it is agreed that the said utility lines shall be 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. 0 (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, DNRC, 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, DNRC agrees to obtain an Air Quality Construction and Demolition Permit from the Director of Public works, and to comply with the terms and conditions of said Permit during construction including hauling of material to and from the site. 3.07 Fire Suppression (A) Prior to the Building Department issuing any permit for any foundation or building within the PUD, the Fire Chief for CITY must certify that DNRC has supplied a fire site access plan for the Subject Property and an engineered internal fire suppression system for the buildings to be constructed on the Subject Property, - 29 - which will be in accordance with the Uniform Fire Code • and will be acceptable to the Fire Chief. (B) DNRC 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) In addition to the performance standards related to landscaping, subdivision review will consider the landscaping and common area features of all proposed development. (B) Street trees will be placed at 40-foot intervals along both sides of the internal roadways except where they immediately abut a parking lot island or planter or abut building fronts. Street trees are to be a minimum of 2 -1/4 inch caliper at planting. (C) Landscaping along Highway 93 and West Reserve Drive will include street trees placed at 50-foot intervals, which are a minimum of 2-1/4 inch caliper at planting. (D) The overall landscape plan shall be coordinated with the Kalispell Parks and Recreation Director as to the exact size and location of the plantings and the species lists. This plan shall be attached hereto as an addendum. (E) All refuse areas shall be screened from public view. IV. CITY SEWER/WATER CONNECTION FEES 4.01 Connection Fee Schedule (A) Connection fees for connection to the CITY Water and Sewer utility will be determined in accordance with City Standards and fee schedules for connection fees, in • - 30 - 0• effect at the time of the application for a building permit. (B) DNRC, or its successors and assigns which own the property at the time of applying for a Building Permit, shall pay the connection fees associated with the utility connections at the time of obtaining the Building Permit for each structure. This provision is to assure that the fees are paid at the time of applying for a Building Permit and is not to be construed as to prohibit DNRC from requiring reimbursement or advance payment of the cost from any potential tenant or purchaser. (C) DNRC may be entitled to reimbursement of a portion of the costs of installation and extension of water and sewer utilities from future users who connect to extended water and sewer facilities. If DNRC anticipates the need for reimbursement of cost, DNRC's engineer shall prepare a preliminary design and report that details the proposed facilities and the estimated proposed reimbursable costs and will submit said design and report to the CITY for review and concurrence. Costs shall be recovered through a developer's extension agreement and will be subject to the following conditions. 1) No reimbursement will be allows for any costs associated with meeting the utility requirements for development of the Subject Property. These costs shall be determined by DNRC's engineer and shall be submitted for review and concurrence by the Director of Public Works. Said costs shall be the actual costs of construction, inclusive of engineering and inspection costs, and shall be submitted as specified within thirty (30) days of substantial completion of the work. 2) No reimbursement will be allowed for any costs of extension of water and sewer facilities, or increases in size thereof, for MIOM which the CITY has agreed to provide • reimbursement as described elsewhere in this agreement. 3) Costs associated with extensions of water and sewer facilities to future users shall be determined by DNRC's engineer and shall be provided to the Director of Public Works for review and concurrence that said costs are appropriate for reimbursement. Said costs shall be the actual costs of construction, inclusive of engineering and inspection costs, and shall be submitted as specified within thirty (30) days of substantial completion of the work. 4) A developer's extension agreement shall be prepared by DNRC's engineer and submitted to the Director of Public Works for review and concurrence. The agreement shall identify the costs to be reimbursed, the • properties benefitted by the extended utilities, and the proportionate cost to be reimbursed by each benefitted property upon connection to the extended utilities. The agreement shall identify the recommended method for apportioning reimbursable costs between the benefitted properties. Said method shall be the same for all properties. The term of this agreement shall not exceed a period of seven (7) years. 5) Upon concurrence, the Director of Public Works shall submit the proposed developer's extension agreement to the Kalispell City Council for approval. 6) Future extensions by the CITY of utility facilities covered by this PUD agreement shall not be subject to the cost E - 32 - reimbursement outlined in this section. V. AMENDMENT OR MODIFICATIONS OF AGREEMENT 5.01 Amendment or Modification Procedures This Development Agreement maybe amended or modified only by application of DNRC, in accordance with the procedures set forth herein. Applications for amendment or modification may be made to the City of Kalispell Site Review Committee. (A) Modifications of this agreement and the attachments hereto which are deemed by said Site Review Committee to be minor modifications shall require only the consent of the Site Review Committee and shall not require the consent of the City Council or any other public agency. Said minor modifications shall include, but are not limited to, interpretation of uses by the Kalispell Zoning Administrator and other interpretations deemed to be consistent with the intent of this Agreement. (B) All amendments and modifications of this Agreement, otherthan 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. s (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, - 33 - the Site Review Committee shall refer the matter to the • City Council within fifteen (15) days after it determines the matter to require Council review. (F) DNRC may appeal the decision of the Site Review Committee to the city 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 courtof competent jurisdiction, such provision shall be sever able and the remainder of this Agreement shall continue to be of full force and effect. 6.02 Recordation This Agreement shall be recorded in the Office of the Flathead county Clerk and Recorder. 6.03 Entire Agreement _Primacy This Agreement and the attachments, exhibits, plans, and reports referenced herein constitute the entire Agreement between the parties and may only be amended as set forth herein. In the event during the term of this Agreement, there is a variance between the provisions of this Agreement and any drawing or document submitted prior to execution of this Agreement, this Agreement shall take precedence. 6.04 Integration This Agreement, together with any attached exhibits and any addenda or amendments signed by the parties, integrates all negotiations and previous agreements between the parties and supercedes any other written or oral agreements or - 34 - 0 representations between the parties. This Agreement can be modified only in writing, signed by all parties hereto. 6.05 Binding Effect This Agreement shall be binding upon and inure to the benefit of the respective parties, heirs, successors and assigns. - 35 - Exhibit A • Area to be Annexed r That portion of Section 36, Township 29 North, Range 22 West, Principal Meridian, Flathead County, Montana described as follows: The Southwest 1/4, the Northwest 1/4 and that portion of the Northeast 1/4 lying westerly of the westerly right-of-way line of U.S. Highway No. 93 as shown on . Federal Aid Project Nos. F 5-3(32)115 and F 5-3(24)115, excepting therefrom the . Southwest 1/4 of the Southwest 1/4 of the Northwest 1/4 and the Northwest 1/4 of the Northwest 1/4 of the Southwest 1/4 all in Section 36, Township 29 North, Range 22 West, containing 454.4 Acres of Land, more or less. r w Exhibit B Mixed Commercial POD and B-5 Zoning That portion of the Northeast 1/4 and the Southeast 1/4 of the Northwest 1/4 of Section 36, Township 29 North, Range 22 West, Principal Meridian, Flathead County, Montana described as follows: Commencing at the southeast corner of the Northeast 1/4 of Section 36, Township 29 North, Range 22 West; thence along the east -west mid -section line of said Section 36, North 89°59'28" West 135.87 feet to the POINT OF BEGINNING of the parcel being described; thence continuing along said east -west mid -section line of said Section 36, North 89°59'28" West 3560.89 feet, more or less, to the southeasterly boundary of the proposed U.S. Highway No. 93 bypass around the City of Kalispell; thence along said southeasterly boundary of said bypass the following three courses, North 57°41'00" East 1637.57 feet, more or less, to the beginning of a 2600.00 foot radius curve, more or less, to the left concave northwesterly, along said curve through a central angle of 15°45'40", more or less, an arc length of 715.22 feet, more or less, and North 41°55'20" East 663.25 feet, more or less to the easterly boundary of the Northwest 1/4 of the Northeast 1/4 of said Section 36; thence along said easterly boundary of said aliquot part North 00004118" West 415.52 feet, more or less to the northwesterly boundary of the proposed U.S. Highway No. 93 bypass around the City of Kalispell; thence along said northwesterly boundary of said bypass the following two courses: North 41°55'20" East 151.97 feet, more or less, to the beginning of a 1288.00 foot radius curve, more or less, to the right, and along said curve through a central angle of 21030'52", more or less, an arc length of 483.64 feet, more or less, to the northerly boundary of the Northeast 1/4 of said Section 36; thence along said northerly boundary of said aliquot part, North 89°57'39" East 325.31 feet, more or less, to the westerly right-of-way line of U.S. Highway No. 93 as shown on Federal Aid Project Nos. F 5-3(32)115 and F 5-3(24)115; thence along said westerly right-of- way line of said U.S. Highway No. 93 the following seven courses: South 00°02'21" East 30.00 feet, North 89°57'39" East 117.29 feet, South 01'26'09" West 79.93 feet, North 89°48'03" East 287.02 feet, South 00009'01" West 2291.03 feet, South 14°20'01" West 61.92 feet and South 00007'52" West 190.13 feet to the Point of Beginning. Exhibit B-1 Expanded Mixed Commercial and B-5 Zoning That portion of the Northeast 1/4 and the Southeast 1/4 of the Northwest 1/4 of Section 36, Township 29 North, Range 22 West, Principal Meridian, Flathead County, Montana described as follows: Commencing at the southeast corner of the Northeast 1/4 of Section 36, Township 29 North, Range 22 West; thence along the east -west mid -section line of said Section 36, North 89°59'28" West 135.87 feet to the POINT OF BEGINNING of the parcel being described; thence continuing along said east -west mid -section line of said Section 36, North 89°59'28" West 3560.89 feet, more or less, to the southeasterly boundary of the proposed U.S. Highway No. 93 bypass around the City of Kalispell; thence along said southeasterly boundary of said bypass, North 57°41'00" East 1242.47 feet, more or less, to the westerly boundary of the Northeast 1/4 of said Section 36; thence along said westerly boundary of said aliquot part, North 00°05'34" West 1983.74 feet to the northwest corner thereof; thence along the northerly boundary of said aliquot part, North 89°57'39" East 2133.52 feet to the to the westerly right-of-way line of U.S. Highway No. 93 as shown on Federal Aid Project Nos. F 5-3(32)115 and F 5-3(24)115; thence along said westerly right-of-way line of said U.S. Highway No. 93 the following seven courses: South 00°02'21" East 30.00 feet, North 89057'39" East 117.29 feet, South O1026'09" West 79.93 feet, North 89048'03" East 287.02 feet, South 00°09'O1" West 2291.03 feet, South 14°20'01" West 61.92 feet and South 00°07'52" West 190.13 feet to the Point of Beginning. Is • • Exhibit C Mixed Professional POD and R-5 Zoning That portion of the Northwest 1/4 and the Northeast 1/4 of Section 36, Township 29 North, Range 22 West, Principal Meridian, Flathead County, Montana described as follows: BEGINNING at the northwest corner of the Northwest 1/4 of Section 36, Township 29 North, Range 22 West; thence along the northerly boundary of said aliquot part, North 89057'13" East 2647.92 feet to the northwest corner of the Northeast 114 of said Section 36; thence along the northerly boundary of said aliquot part, North 89°57'39" East 1808.21 feet, more or less, to the northwesterly boundary of the proposed U.S. Highway No. 93 bypass around the City of Kalispell, said point being the beginning of a 1288.00 foot radius curve, more or less, concave southeasterly having a radial bearing of South 26033'48" East, more or less; thence along said northwesterly boundary of said bypass the following two courses: along said curve through a central angle of 21°30'52", more or less, an arc length of 483.64 feet, more or less, and South 41°55'20" West 151.97 feet, more or less, to the easterly boundary of the Northwest 1/4 of the Northeast 1/4 of said Section 36; thence along said easterly boundary of said aliquot part, South 00'04'18" East 415.52 feet, more or less, to the southeasterly boundary of the proposed U.S. Highway No. 93 bypass around the City of Kalispell; thence along said southeasterly boundary of said bypass the following three courses, South 41°55'20" West 663.25 feet, more or less, to the beginning of a 2600.00 foot radius curve, more or less, to the right concave northwesterly, along said curve through a central angle of 15°45'40", more or less, an arc length of 715.22 feet, more or less, and South 57041'00" West 1637.57 feet, more or less, to the southerly boundary of the Northwest 1/4 of said Section 36; thence along said southerly boundary of said aliquot part North 89°59'28" West 935.63 feet to the southeast corner of the Southwest 1/4 of the Southwest 1/4 of the Northwest 1/4 of said Section 36; thence along the easterly and northerly boundaries of said aliquot part the following two courses: North 00°04'33" West 661.55 feet and South 89°59'42" West 662.18 feet to the westerly boundary of said Northwest 1/4 of said Section 36; thence along said westerly boundary of said aliquot part, North 00°04'13" West 1984.17 feet to the Point of Beginning. Exhibit C-1 • Reduced Mixed Professional POD and R-5 Zoning That portion of the Northwest 1/4 of Section 36, Township 29 North, Range 22 West, Principal Meridian, Flathead County, Montana described as follows: BEGINNING at the northwest corner of the Northwest 1/4 of Section 36, Township 29 North, Range 22 West; thence along the northerly boundary of said aliquot part, North 89°57'13" East 2647.92 feet to the northeast corner thereof; thence along the easterly boundary of said aliquot part; South 00°05'34" East 1983.74 feet, more or less, to the southeasterly boundary of the proposed U.S. Highway No. 93 bypass around the City of Kalispell; thence along said . southeasterly boundary of said bypass, South 57°41'00" West 1242.47 feet, more or less, to the southerly boundary of said Northwest 1/4 of said Section 36; thence along said southerly boundary of said aliquot part North 89°59'28" West 935.63 feet, more or less, to the southeast corner of the Southwest 1/4 of the Southwest 1/4 of the Northwest 1/4 of said. Section 36; thence along the easterly and northerly boundaries of said aliquot part the following two courses: North • 00°04'33" West 661.55 feet and South 89°59'42" West 662.18 feet to the westerly boundary of said Northwest 1/4 of said Section 36; thence along said westerly boundary of said aliquot part, North 00°04'13" West 1984.17 feet to the Point of Beginning. 0 Exhibit D Mixed Residential POD and R-4 Zoning That portion of the Southwest 1/4 of Section 36, Township 29 North, Range 22 West, Principal Meridian, Flathead County, Montana described as follows: The Southwest 1/4 of Section 36, Township 29 North, Range 22 West, excepting therefrom the Northwest 1/4 of the Northwest 1/4 of the Southwest 1/4 of said Section 36. 0 0 w9P a • • i 7 RlRF w7t ATE V t'7Tw W n Exhibit E Section 36, T29N P22W ze West Reserve Drive as J0 A as as at 0 iY 0 Mixed Professional m w aoD D eee fmD QD err.nme r• o "'� Mixed Commercial Ee� �.. .. ouader°ectlm caner ® Cenrer9wrwsecti°neamer ® DrPo wappmach ��Qa Is EPA yam H y y V. as a° DNRC ' ar (D s Y �i ingle F ily Sports Fields as ae °° rnx ._ ....... . 11 _ Four We Drive � ° EXHIBIT "F" DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS THIS DECLARATION, made this day of , 2001, by State of Montana/Department of Natural Resources and Conservation, hereinafter referred to as "DECLARANT', WITNESSETH; That WHEREAS, State of Montana/Department of Natural Resources and Conservation is the owner of real property situated in Flathead County, Montana, described herein on Exhibit "A", (Note: herein described as All Section 36 property, except the ballfields zoned P-1). That WHEREAS, Declarant is desirous of subjecting all of said property hereinabove described on Exhibit "A" to the Conditions, Covenants and Restrictions hereinafter set forth, each and all of which is and are for the benefit of said property and for each owner thereof and shall inure to the benefit and pass with said property, and each and every parcel thereof, and shall apply to and bind the successors in interest, and any owner thereof; NOW, THEREFORE, the Declarant, being the owner of all of the real property above -described, hereby declares that the said real property is, and shall be, held, transferred, sold and conveyed, subject to the conditions, restrictions, covenants and reservations hereinafter set forth; and All persons or corporations who now or shall hereafter acquire any interest in and to the above -described property shall be held to agree and covenant with the owner of any of the property hereinabove described, or any parcel thereof, and with their heirs and successors and assigns, to conform to and observe the following covenants, restrictions, and conditions as to the use thereof, and as to the construction of dwellings and improvements thereon. ARTICLE I. DEFINITIONS Section 1: "Declarant" herein mentioned is State of Montana/Department of Natural Resources and Conservation. 1 Section 2: "Association" shall mean the Property Owners Association, consisting of all owners of the property described in Exhibit "A". Section 3: "Owner" shall mean and refer to the person or persons owning a parcel of the land described in Exhibit "A", in fee simple, absolute, individually or as an owner in any real estate tenancy relationship recognized under the laws of the State of Montana, including a unit ownership pursuant to a recorded unit ownership declaration. Section 4: "Common Area" shall mean all real property owned or maintained by the Association for the common use and enjoyment of others, including but not limited to parks, trails, roadways, easements, and recreational facilities. Section 5: "Lot" shall mean any plot of land shown upon any recorded subdivision plat or map of the property. Section 6: "Vote" or "voter", shall mean one vote per lot. 0 ARTICLE II. ARCHITECTURAL REVIEW COMMITTEE Section 1. Members/Terms: The Architectural Review Committee shall consist of three individuals appointed by the Board of Directors of the Property Owners Association from owners within the property described in Exhibit "A" and shall be known as the Architectural Review Committee hereinafter referred to as Architectural Review Committee. The members of the Architectural Review Committee may be appointed and removed at the sole discretion of the Board of Directors of the Property Owners Association. Section 2. Function of the Architectural Review Committee: All owners intending to construct any structure whatever upon any lot, shall first submit their plans and specifications, in writing, to the Architectural Review Committee. All plans for the construction of any building, signage, private road or driveway, fence, wall or other structure to be erected upon any lot and the proposed location thereof upon any lot and any change, after approval thereof, any remodeling, reconstruction, alteration or addition to any building, road, driveway, or other structure upon any lot in said premises, shall require written • 2 approval of said Architectural Review Committee. Before beginning the construction of any building, road or driveway, parking lot, fence, wall or other structure whatsoever, or remodeling, reconstruction or altering such road, driveway or structure upon any lot, the person or persons desiring to effect, construct or modify the same shall submit to the Architectural Review Committee, a complete set of plans and specifications thereof including front, side, and rear elevations, floor plans for each floor and basement, exterior color schemes, building materials, a block or plot plan indicating and fixing the exact location of such structure or such altered structure on the grading plan if requested. A reasonable fee shall be paid to the Architectural Review Committee with such plans, said fee to be set by said Committee. (Preliminary sketch of plan may be submitted prior to the execution of detailed drawings.) In the event the proposed improvement shall be one for repainting or redecorating the exterior of such structure without remodeling or changing it, or making additions thereto, it shall only be necessary to file one color scheme of such proposed work and have the same approved prior to the commencement of such work. Section 3. Approval by Architectural Review Committee: Approval by the Architectural Review Committee of all exterior plans and specifications must be submitted for approval in writing, and shall not be deemed to be a waiver by the Architectural Review Committee of the right to object to any of the features or elements embodied in such plans or specifications if and when the same features or elements are embodied in any subsequent plans or specifications submitted for approval for use on other building sites. In the event the Architectural Review Committee fails to act within thirty (30) days after the proposed plans and specifications of any structure have been submitted, in writing, or in any event, if no suit to enjoin the construction has been commenced prior to the completion of an entire dwelling, no specific approval shall be required for such structure and the pertinent provisions to the Declaration shall be deemed to have been fully complied with. The Architectural Review Committee may, at any time, inspect any building or property located in said subdivision for the purpose of determining whether the exterior of said building conforms to these covenants. Approval of such plans and specifications shall be evidenced by written endorsement on such plans or specifications, a copy of which shall be delivered to the owner or owners of the 3 0 lot upon which the prospective building, road, driveway or other structure is contemplated, prior to the beginning of such construction. No changes or deviations in or from such plans and specifications as approved, shall be made without the prior written consent of the Architectural Review Committee, and construction shall be completed within one (1) year from date of approval of said plans and specifications. Structural engineering shall be the responsibility of the owner. The Architectural Review Committee may waive such provisions contained in these covenants as they deem appropriate. In passing upon any plans and specifications submitted to it, the Architectural Review Committee shall consider: a) Suitability of the improvement and materials of which it is to be constructed to the site upon which it is to be located; b) The nature of the adjacent neighboring improvements; c) The quality of the materials to be utilized in any proposed improvements; and d) The effect of any proposed improvement on the adjacent or neighboring property. In passing on any plans and specifications, it shall be an objective of the Architectural Review Committee to make certain that no improvement will be so similar or so dissimilar to others in the vicinity that values, monetary or aesthetic, will be impaired, and to maintain for the benefit of the Architectural Review Committee and all subsequent individual lot owners, the nature character of the land and to require that all man-made structures blend into the natural background rather than stand out against it. The Architectural Review Committee shall consider the guidelines set forth in Articles III and IV and the Planned Unit Development Agreement in its review of plans and specifications: , • 4 P ARTICLE III. RESTRICTIONS AS TO LAND USE The land described in Exhibit "A" is subject to the land use restrictions as follows: Section 1. Mixed Commercial: All that property described in Exhibit "B"/"B-1" that is zoned under Kalispell Zoning Category as PUD "Mixed Commercial" is subject to the land use conditions and regulations of the B-5 Zoning Classification of the Kalispell Zoning Ordinances, as amended from time to time; and, is further subjected to the provisions of the Planned Unit Development Agreement between State of Montana/Department of Natural Resources and Conservation and the City of Kalispell, dated the day of , 2001. Section 2. Mixed Professional: All that property described in Exhibit "C"/"C-1" that is zoned under Kalispell Zoning Category as PUD "Mixed Professional" is subject to all the land use conditions and regulations of the R-5 Zoning Classification of the Kalispell Zoning Ordinances, as amended from time to time; and, is further subjected to the provisions of the Planned Unit Development Agreement between State of Montana/Department of Natural Resources and Conservation and the City of Kalispell, dated the day of , 2001. Section 3. Mixed Residential: All that property described in Exhibit "D" that is zoned under Kalispell Zoning Category as PUD "Mixed Residential" is subject to all the land use conditions and regulations of the R-4 Zoning Classification of the Kalispell Zoning Ordinances, as amended from time to time; and, is further subjected to the provisions of the Planned Unit Development Agreement between State of Montana/Department of Natural Resources and Conservation and the City of Kalispell, dated the day of 2001. ARTICLE IV. MISCELLANEOUS RESTRICTIONS Section 1. Utilities: All future utilities, including but not limited to power, electric, and telephone shall be underground. 61 Section 2. Continuity of Construction: All structures shall have the exterior completed within twelve (12) months of commencement of construction unless an exception is granted in writing by the Architectural Review Committee. Section 3. Temporary Structures: No trailer, basement, tent, shack, garage, barn or other outbuilding erected or placed on any lot shall at any time be used or occupied on a permanent basis. Any of the aforementioned structures shall not be erected at any time without the written approval of the Architectural Control Committee. Section 4. Garbage: No lot shall be used or maintained as a dumping ground for rubbish. Trash, garbage or other waste, shall be kept in covered, reasonable airtight containers. Such containers must be kept in a garage or other enclosed area. Section 5. Nuisance: No noxious or offensive activity shall be carried on nor shall anything be done or permitted which shall constitute a public nuisance • therein. ARTICLE V. PROPERTY OWNERS ASSOCIATION Section 1. Non-profit Corporation: The owners of the property set forth in Exhibit "A" shall form a Montana Non-profit Corporation and adopt necessary By -Laws known as "The Property Owners Association" hereinafter referred to as Association. The Association to be formed by Declarant shall have as members all owners as defined herein. Membership in the association shall be appurtenant to and shall not be separated from the ownership interest. Members shall participate in the manner prescribed by the Articles and By -Laws of the Association, and resolutions of the Association's Board of Directors. The Association's purpose is to provide services and facilities to the owners as it may determine. Every owner who is a member of the Association shall have a right and easement of enjoyment in and to the common area which right shall be appurtenant to and shall pass along with the owner's title subject to the following provisions: • 6 a. The right of the Association to charge reasonable admission and other fees for the use, care, maintenance and improvement of all of the common area, as more particularly described as "Common Area" on the various subdivision plats. b. The right of the Association to suspend the use or enjoyment of the common area or facilities and services provided directly or indirectly by it for any period during which any fee or assessment against an owner's interest remains unpaid, or for the continued violation of the Articles and By -Laws of the Association or the resolutions of the Association's Board of Directors. C. Any Association member may delegate the right of enjoyment of the common area to members of the member's family, tenants, contract purchasers or guests. Section 2. Purpose: The purpose of the Property Owners Association is to adopt rules and regulations for the use and maintenance of the common areas within the property described on Exhibit "A". Common areas may include parking lots, parks and other miscellaneous common areas, playground equipment, trail system, highway boulevard and signage. The Property Owners Association shall establish the annual and special assessments for the maintenance of the common areas and be responsible for the appointment of the members of various Architectural Review Committees. ARTICLE VI. ASSESSMENTS/COLLECTION Section 1. Assessment/Creation of Lien: Each owner (other than Declarant) by accepting deed to or land contract for a lot within this subdivision, whether or not specifically so expressed in said conveying instrument, shall be deemed to covenant, agree, and shall be bound to pay assessments established pursuant to the provisions of these covenants, which will include regular annual assessments and special assessments for general Association operating funds, capital improvement or water use. Assessments, whether special or regular, may be collected on a monthly, quarterly or yearly basis, together with interest, costs and reasonable attorney's fees incurred in the enforcement of the provisions of this article. 7 0 Section 2. Declarant's Assessment/Date of Commencement of Assessment: Pending sale of each lot, Declarant shall be responsible for all assessments on said unsold lots as same become due. At sale, assessments shall be pro -rated as of date of sale. Declarant remaining responsible for assessments to date of sale and the lot purchaser being responsible thereafter. All such allocations shall be based on a 365 day year. Section 3. Lien: Assessments as provided herein shall be a charge on each owner's lot and shall be a continuing lien against said lot and said assessment, together with any interest, costs, and reasonable attorney fees incurred in collection same shall also be a personal obligation of the owner of the lot at the time when said assessment became due. Section 4. Purpose: Assessments for the purpose of common area maintenance shall be specifically allocated for that purpose. General assessments assessed against owners of the lots shall be for the general purpose of maintaining Association property. Assessments shall be used to administer the covenants to maintain and improve quality of the common area. • Section 5. Regular Assessments: The Board of Directors shall levy assessments authorized by a majority of the Association to cover the annual Association operating budget. The Board of Directors shall further establish an assessment as and for a fund for the maintenance of the road and other common area. Said assessments shall be billed and collected over the same term and at the same time. The first year for which annual assessments shall be established and collected shall be established by the Board of Directors. Section 6. Uniform Rate: Common area assessments as well as regular and special assessments, shall be fixed at a uniform rate for all residential lots involved. Assessments shall be divided by the number of member lots in the Association. Each lot shall bear its prorata share. Section 7. Assessment Period/Due Date: Assessments as provided herein shall commence as against all lots as determined by the Board of Directors and the Board of Directors shall fix the amount of the regular annual assessment against each lot on an annual basis. 0 F7 r Written notice of the applicable annual assessment shall be sent to every owner subject thereto. Section 8. Special Assessments: Special Assessments to include common area maintenance fund as herein provided, may be set at the regular annual meeting or upon any special meeting called for said purpose. In the event of special meeting, written notice to each of the members of the Association must be given no less than 30 or more than 50 days prior to said meeting. Presence of 50% or more of the members of the Association at any meeting called for the purpose of establishing any regular or special assessment shall constitute a quorum, and at said meeting a majority of said quorum shall control. Section 9. Nonpayment/Remedies: Any assessment not paid within 30 days after the due date shall bear interest from the due date at the legal rate set by Montana law on a District Court Judgment. The Association may bring an action at law against the owner of a lot in default as and on the basis of an account due. Said assessment obligation shall be a personal obligation. In addition to the amount of the assessment and any interest thereon, in the event of any such suit the Association shall be entitled to all attorney's fees incurred and costs. Any Judgment shall be entitled to all rights and legal consideration as any Judgment received under the laws of Montana. No owner subject to assessment may waive or otherwise escape liability for the assessment herein provided by nonuse of the common area or abandonment of his lot. In addition to the provisions for suit and collection as hereinabove set forth, the Association may suspend a delinquent owner's voting rights at Association meetings, the right to use, enjoy and have the benefit of the common area. In the event of failure to pay common area maintenance assessments, the Association may terminate the right to ingress, egress and/or utilization of the common facilities. Section 10. Subordination or Assessment Lien: The lien of any assessment provided herein shall be subordinate to any purchase money security interest for a lot acquired herein or construction lien for the M 0 construction of a resident herein when said lien secures the lender's obligation for said acquisition or construction. In the event, however, of foreclosure of said lien, the Association shall not be required nor be under any obligation to provide access, or any of the other amenities of the common area to any subsequent purchaser, either through default or otherwise, until all past due obligations owed are paid in full. The provisions of this paragraph may be modified or waiver in their entirety at the discretion of the Association. ARTICLE VII. ENFORCEMENT Section 1. Interested Parties: Any owner shall have the option and right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations and charges now or hereafter imposed by the provisions of this Declaration. The method of enforcement may include proceedings to enjoin the violation, to recover damages, or both. Failure by any owner to enforce any such provision shall in no event be deemed a waiver of the right to do so thereafter. Section 2. Severability: Invalidation of any one of these covenants or restrictions by judgment or court order, shall in no wise affect any other provision which shall remain in full force and effect. ARTICLE VIII. TERM The provisions of these protective covenants are to run with the land and shall be binding upon all parties and all persons claiming under them, for a period of twenty (20) years from the date they are recorded, after which time said protective covenants shall be automatically extended for successive periods of ten (10) years unless an instrument executed by the owners of seventy-five percent (75%) of the land described in Exhibit "A", has been recorded agreeing to terminate said protective covenants or change them in whole or in part. Each parcel of land, regardless of size or of any deeded ownership interest in a condominium unit shall be entitled to one vote under this Article. • 10 ARTICLE IX. AMENDMENT This Declaration may be amended by an instrument signed by the owners of Seventy-five Percent (75%) of the land described in Exhibit "A", which instrument has been recorded, agreeing to such amendment. Each parcel of land, regardless of size or of any deeded ownership interest in a condominium unit shall be entitled to one vote under this Article. IN WITNESS WHEREOF, the Declarant has executed this instrument the day and year first above written. STATE OF MONTANA/DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION M2 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 of State of Montana/Department of Natural Resources and Conservation, the Corporation whose name is subscribed to the within instrument and acknowledged to me that such Corporation executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year in this certificate first above written. Notary Public for the State of Montana (Seal) Residing at Montana My commission expires 11