E3. Resolution 5709 - Trumbull Creek Developer's Agmtr,"66, 1111111
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Charles A. Harball Office of City Attorney
it Attorney 201 First Avenue East
P.O. Box 1997
Kalispell, MT 59903-1997
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TOO Doug Russell, City Manager
FROM: I Charles Harball, City Attorney
Tel 406.758.7709
Fax 406.758.7771
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SUBJECT. Resolution No. 5709 — Resolution to Approve the Developer's
Agreement for Trumbull Creek Crossing, Phase II
MEETING DATE: April 6, 2015 — Regular Council Meeting
BACKGROUND.* In 2004 the City crafted a certain policy regarding the utilization of
its municipal sanitary sewer treatment system by properties outside of the City and the
Evergreen Sewer District but otherwise served by the conveyance lines of the Evergreen
Sewer District. The City Council passed Resolution No. 5072 which defi'ned the terms
and conditions of providing municipal sanitary sewer treatment service for the out -of -city
property formerly known as the Kelsey Subdivision but now established as Trumbull
Creek Crossing. On August 16, 2007 the City entered into a Developer's Agreement with
the owner of Trumbull Creek Crossing for the development of Phase I of the Flathead
County subdivision. Now the owner of Trumbull Creek Crossing has petitioned the City
to provide its municipal sanitary sewer treatment service to an additional 21 lots
described as Phase II and also served by the Evergreen Sewer District conveyance lines.
The owner of Trumbull Creek Crossing has executed a waiver of right to protest
annexation, as required and has negotiated a Developer's Agreement that sets forth the
city requirements of the development. This agreement addresses the issues of the
payment of impact fees and development standards.
The owner has requested an additional deviation from the public works construction
standards approved by the Council that is not currently included in the Developer's
Agreement. The owner desires to use native onsite sands and gravel for utility trench
backfill instead of importing gravel as otherwise required by city construction standards.
The City Public Works Department does not agree that this deviation should be allowed
as it is generally not a best practice and can lead to compromises in the street system
under which the conveyance lines are constructed.
Resolution No. 5709 - Trumbull Creek Crossing, Phase II Memorandum
April 2, 2015
Page - 2
ALTERNATIVES: If the City Council determines to approve the additional deviation
that allows the developer to use native onsite sands and gravel for utility trench backfill,
Z,
a motion should be made to add that deviation to the Developer's Agreement and
authorize the City Manager to execute the amended agreement. The amended
agreement will then be attached to Resolution No. 5709 as Exhibit 'W'.
RECOAUdENDATION: It is recommended that the City Council pass Resolution No.
5709 without amendment.
Charles fta'Aball, City Attorney
# I ffice of City Attomey
City of Kalispell
RESOLUTION NO. 5709
A RESOLUTION APPROVING THE DEVELOPMENT AGREEMENT FOR TRUMBULL
CREEK CROSSING, PHASE II, A FLATHEAD COUNTY SUBDIVISION, PURSUANT TO THE
PROVISIONS OF KALISPELL RESOLUTION NO. 5072, AND DIRECTING THE CITY
MANAGER TO EXECUTE THE SAME.
WHEREAS, on October 17, 2004 the Kalispell City Council passed Resolution No. 5072 which
defines the terms and conditions of providing municipal sanitary sewer treatment service
for that certain out -of -city property formerly known as the Kelsey Subdivision but now
established as Trumbull Creek Crossing; and
WHEREAS, on August 16, 2007 the City entered into a Developer's Agreement with the owner of
Trumbull Creek Crossing for the development of Phase I of the Flathead County
Subdivision; and
WHEREAS, the owner of Trumbull Creek Crossing has petitioned the City to now provide its
municipal sanitary sewer treatment service to an additional 21 lots described as Phase II
of the Flathead County Subdivision; and
WHEREAS, the owner of Trumbull Creek Crossing has executed a waiver of right to protest
annexation for the subject 21 additional lots and has provided this to the City; and
WHEREAS, the City and the owner of Trumbull Creek Crossing have negotiated a Developer's
Agreement pursuant to that condition of Resolution No. 5072; and
WHEREAS, it is in the best interests of the City to enter into the Developer's Agreement for the
reasons that it is consistent with the policy of the City set forth in Resolution No. 5072.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF KALISPELL,
MONTANA:
SECTION 1. Upon full consideration of the conditions set forth in City of Kalispell Resolution
No. 5072 and the terms of the proposed Developer's Agreement between the City
of Kalispell and the owner of Trumbull Creek Crossing, Phase II, Flathead
County Subdivision, the City Manager is directed to execute said Developer's
Agreement as set forth in Exhibit "A" attached hereto on behalf of the City of
Kalispell and cause said document to be recorded with the Clerk and Recorder of
Flathead County, Montana.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF THE
CITY OF KALISPELL THIS 6TH DAY OF APRIL, 2015.
Mark Johnson
Mayor
ATTEST:
Aimee Brunckhorst, CMC
City Clerk
EXHIBIT "A"
EXTENSION OF SERVICES AGREEMENT
TRUMBULL CREEK CROSSING — PHASE II
THIS AGREEMENT, made as of the day of April, 2015, by NW Dev Group, LLC, a
Oregon limited liability company, of 4260 Galewood Street, Suite B, Lake Oswego, OR 97035,
hereinafter NW DEV GROUP, LLC, and the City of Kalispell, a municipal corporation, of 201
1 st Avenue East, Kalispell, Montana 59901, hereinafter CITY;
WITNESSETH
WHEREAS, NW DEV GROUP, LLC is the fee owner of certain real property located outside
of the City of Kalispell in Flathead County, Montana, platted therein as "Trumbull Creek
Crossing -- Phase II", which is further described as follows:
2.1 lots in Tract 2 of COS #19550 located in the NE r/ of the SE % of Section 28, Township 29
North, Range 21 West, P.M. M., Flathead County, Montana
and is hereinafter referred to as "Subject Property"; and
WHEREAS, NW DEV GROUP, LLC desires to obtain municipal sewer services for the subject
property; and
WHEREAS, the subject property lies outside of the Evergreen RSID and requires the
permission of the City of Kalispell to allow that portion of the subject property to connect to the
City's municipal sewer services; and
WHEREAS, the City of Kalispell, by and through Resolution No. 5072 dated the 17th day of
October, 2004, agreed to serve the subject property with municipal sewer services upon 1) such
sewer infrastructure being constructed in compliance with City and Evergreen standards; 2) the
owner and developer of the property execute waivers of right to protest annexation for all
parcels; 3) the owner and developer of the property entering into a developer's agreement with
the City of Kalispell in which the parties agree that the subdivision shall be developed to City of
Kalispell Urban Construction and Design Standards; and 4) that the City of Kalispell and
Flathead County entering into an agreement stipulating that in the event that the City of Kalispell
ever serves the property with a separate sewer conveyance system, thereby severing from the
Evergreen Sewer conveyance system, the ownership of the sewer lines within the subdivision
shall be conveyed to the City; and
WHEREAS, the City of Kalispell, by and through Resolution No. 5103 dated the 26th day of
March, 2006, determined as a matter of an interim policy that it would approve the usage of up to
a total of 100,000 gallons of sewage per day conveyed through the Evergreen sewage conveyance
system from properties located outside of the Evergreen RSID with such sewer service provided
to those properties in which the owner agrees to 1 ) construct the sewer infrastructure in
compliance with City and Evergreen standards and with necessary stub" -out facilities to meet
future connection requirements; and 2) execute waivers of right to protest annexation for all
parcels; and 3) enter into a developer's agreement with the City of Kalispell in which the parties
agree that the subdivision shall be developed to City of Kalispell Urban Construction and Design
Standards. This sewer service is further conditioned upon the City of Kalispell and Evergreen
entering into an agreement stipulating that in the event that the City of Kalispell ever serves the
subdivision with a separate sewer conveyance system, thereby severing from the Evergreen sewer
conveyance system, the ownership of lines within the subdivision shall be conveyed to the City;
and
WHEREAS, NW DEV GROUP, LLC entered into a developers agreement with the City of
Kalispell for Phase I of Trumbull Creek Crossing under the terms of the resolutions of the City
cited above and the property described above is Phase II of Trumbull Creek Crossing adjacent to
Phase I of that same development; and
WHEREAS, it is necessary that the City of Kalispell receive the mandated impact fee for sewer
treatment demanded by each parcel that is developed and as it is connected to the Evergreen
sewer conveyance system and that therefore it shall be the obligation of NW DEV GROUP, LLC
to covenant with the City of Kalispell that it, or its successors in interest, shall pay such fees to
the City when due; and
WHEREAS, NW DEV GROUP, LLC has complied with the requirement of providing the
necessary Waiver of Right to Protest annexation for the subject property and by this agreement is
assuming the obligation to develop the subject property to City of Kalispell Urban Construction
and Design Standards and with sewer infrastructure constructed in compliance with City and
Evergreen standards; and
WHEREAS, in order to insure the provision of municipal sewer services, assure the installation
of infrastructure improvements within the "Subject Property" to City of Kalispell Design and
Construction Standards, the parties hereto determine it to be in their interests to enter into this
Development Agreement.
NOW THEREFORE, the parties hereto agree as follows:
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1. Development of the subject property shall be platted in substantial compliance with the
preliminary plat as amended and approved which governs the location of lots and
roadways within the subdivision.
2. All utilities shall be placed underground.
3. Street lighting shall be located within the development and shall have a full cutoff lens so
that it does not intrude unnecessarily onto adjoining properties.
4. All areas disturbed during development shall be re -vegetated with a weed -free mix
immediately after development.
S . Hazardous weed abatement shall be provided in accordance with City of Kalispell
Ordinance 10-8.
6. All road design work shall be reviewed and approved by the Kalispell Public Works
Department prior to construction. This infrastructure shall include but not be limited to
streets, street lighting, street signage, curb, gutter, boulevard and sidewalk and shall be
installed in accordance with the approved plans.
7. The developer shall submit to the Kalispell Public Works Department for review and
approval a stormwater report and an engineered drainage plan that meets the requirements
of the current city standards for design and construction.
8. The developer shall submit to the Kalispell Public Works Department prior to
construction an erosion/sediment control plan for review and approval and a copy of all
documents submitted to Montana Department of Environmental Quality for the General
Permit for Stormwater Discharge Associated with Construction Activities.
9. The streets within the development shall be named and signed in accordance with the
policies of the Kalispell Public Works Department and the Uniform Traffic Control
Devices Manual and be subject to review and approval of the Kalispell Fire Department.
10. A letter from Kalispell Public Works Department shall be obtained stating that all new
infrastructure including water and sewer lines located within the development have been
accepted by the City of Kalispell or a proper bond has been accepted for unfinished work.
11. The following requirements shall be met per the Kalispell Fire Department:
a. Water mains designed to provide minimum fire flows shall be installed per City
specifications at approved locations. Minimum fire flows shall be in accordance with
the International Fire Code (2003).
b. Fire hydrants shall be provided per City specifications at locations approved by this
department, prior to combustible construction.
c. Fire Department access shall be provided in accordance with International Fire Code
(2003).
12. A letter from the US Postal Service shall be included stating the Service has reviewed and
approved of the design and location of the mail delivery site. The mail delivery site shall
be installed or bonded for. In addition, the mail delivery site and improvements shall also
be included in the plans to be reviewed by the Public Works Department. *If necessary a
concrete walkway shall be constructed to connect the sidewalk to the mail boxes.
13. The 100-year flood plain that is delineated shall be shown on the face of the final plat and
be identified as "100-year flood plain — No Build Zone."
14. Developer shall include within its Buy/Sell agreement that all homes or other structures
constructed within the subject property shall receive a building inspection by a certified
building inspector to assure compliance with the building codes adopted by the City of
Kalispell and that such certified inspection shall be provided to the City of Kalispell
Building Department before such structures become occupied.
15. Developer, or its successor in interest, shall submit into escrow for the benefit of the City
of Kalispell the mandated impact fee for sewer treatment demanded by each parcel that is
developed at such time as the property is conveyed. The purchaser shall be noticed by
way of a recorded covenant encumbering the property and to which the City of Kalispell
is a beneficiary party, that at such time as water is provided to the parcel and is connected
to the Evergreen sewer conveyance system, such sewer treatment impact fee shall. be
payable to the City of Kalispell.
16. Prior to final plat approval of Phase 2 the Developer shall provide the Public Works
Department with a recorded document creating a public easement over the existing 60-
foot private road and utility right-of-way for Mountain View Drive in Trumbull Creek
Crossing Phase 1. The lot owners in Trumbull Creek Crossing Phase 2 shall share in the
maintenance of Mountain View Drive in phase 1 unless the City or County accepts
ownership and maintenance of the street.
17. Water and sewer main extensions shall be designed and constructed in accordance with
the Evergreen Water and Sewer District, City of Kalispell's Standards for Design and
Construction and Montana Public Works Standards. The water and sewer main extension
plans shall be reviewed and approved by the Kalispell Public Works Department. Prior
to final plat, a certification shall be submitted to the Public Works Department stating that
the water and sewer mains have been built and tested as designed and approved.
18. A note shall be placed on the final plat and within the covenants, conditions and
restrictions for Phase 2 stating that basements, defined as "a portion of the building where
the finished floor is more than 3 feet below the adjacent grade for more than 50% of the
total building perimeter", shall. be prohibited on each lot unless the lot owner has a
geotechnical report conducted on their lot with a certified engineer's recommendation on
a basement design. The findings of the report and basement design shall be incorporated
into the building designs for the house.
19. All existing and proposed easements shall be indicated on the face of the final plat.
Utility easements for water and sewer shall be provided to allow for the logical extension
of utilities from this subdivision to adjoining properties.
20. The following note shall be placed on the final plat for each phase: "This subdivision is
located in an agricultural area and potential nuisances such as noise, dust, odors, and
irregular hours of operation are to be expected. As such, the right to farm on adjoining
properties shall not be restricted as a result of the development or occupancy of this
subdivision."
21. The following deviations for the City of Kalispell Public Works Design Standards shall
be permitted:
a. Hydrant Outlet Connection — Allow hydrant with national hose threads per Evergreen
Fire and Rescue requirement.
b. Water Service Saddle - Allow Romac stainless steel water service per Evergreen Water
and Sewer District Standards.
c. Overflow Manholes — Allow emergency overflow in Pond A and the Weimar Park using
infiltration trenches.
d. Maintenance Access Approach and Road to Maintain. Facilities — Allow provision of
approaches to pond parcels across boulevards without requiring access road along or
around ponds.
II. OBLIGATIONS OF THE CITY
1. The City shall provide municipal sewer treatment to the sub j ect 21 property parcels described
as Phase 2 of Trumbull Creek.
2. The City may, contingent upon agreement with the Flathead County Sewer District No. 1
(Evergreen) District, contract for all, or some portion of the conveyancing of the sewage with
the Evergreen Sewer District.
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1. This Development Agreement may be amended or modified only by application of NW DEV
GROUP, LLC made to the City of Kalispell Planning Department and in accordance with the
procedures established by the City of Kalispell.
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1. Effective Date. This agreement shall be effective immediately.
2. Severability. In the event that any provisions of this agreement shall be deemed, decreed,
adjudged or determined to be invalid or unlawful by a court of competent jurisdiction, such.
provision shall be severable and the remainder of this agreement shall continue to be of full
force and effect.
3. Recordation. This agreement may be recorded along with the CC&R's with respect to the
subject property.
4. Entire Agreement — Primacy. This agreement constitutes 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 the CC&R's,
filed with respect to the subject property, this Agreement shall take precedence.
5. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the
respective parties heirs, successors and assigns.
Dated this day of April, 2015.
NW DEV GROUP, LLC
Michael Anders, Managing Member
CITY OF KALISPELL
Doug Russell, City Manager
STATE OF MONTANA )
):ss
County of Flathead )
On this day of April, 2015, before me, the undersigned, a Notary Public for the State
of Montana, personally appeared MICHAEL ANDERS, in his capacity as Managing Member of
NW DEV GROUP LLC, which executed the foregoing instrument, and acknowledged to me that
he 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, State of Montana
Printed Name:
Residing at
My Commission Expires
STATE OF MONTANA )
):ss
County of Flathead )
On this day of April, 2015, before me, a Notary Public in and for the State of
Montana, personally appeared DOUG RUSSELL, known to me to be the City Manager of the
City of Kalispell, a municipality, that executed the within instrument, and acknowledged that
such City Manager subscribed, sealed and delivered said instrument as the free and voluntary act
of said municipality, for the uses and purposes therein set forth, and that he was duly authorized
to execute the same on behalf of said municipality.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal, the
day and year first above written.
Notary Public, State of Montana
Printed Name:
Residing at
My Commission Expires