I3. Reso 5780 - Trumbull Creek Ph IIICity of Kalispell
Charles A. Harball Office of City Attorney
City Attorney 201 First Avenue East
P.O. Box 1997
Kalispell, MT 59903-1997
TO:
FROM:
SUBJECT:
MEETING DATE:
MEMORANDUM
Doug Russell, City Manager
Charles Harball, City Attornky
Tel 406.758.7709
Fax 406.758.7771
charball@kalispell.com
Resolution No. 5780 — Resolution to Approve the Developer's
Agreement for Trumbull Creek Crossing, Phase III
September 6, 2016 — 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 defined 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. Then in April, 2016 the City entered into a Developer's Agreement with the
owner of Trumbull Creek Crossing for Phase II of the Subdivision. That agreement
contained specific terms regarding the collection of impact fees for sanitary sewer
treatment which have been effective. Now the owner of Trumbull Creek Crossing has
petitioned the City to provide its municipal sanitary sewer treatment service to an
additional 23 lots described as Phase III and also to be 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 is identical to the Phase II
agreement and also addresses the issues of the payment of impact fees and development
standards.
Trumbull Creek Crossing, Phase III Memorandum
August 23, 2016
Page - 2
ALTERNATIVES: The City Council may deny the request or make amendments as
deemed appropriate.
RECOMMENDATION: It is recommended that the City Council pass Resolution No.
5780.
Office of City Attorney
City of Kalispell
RESOLUTION NO.5780
A RESOLUTION APPROVING THE DEVELOPMENT AGREEMENT FOR TRUMBULL CREEK
CROSSING, PHASE III, 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, on April 6, 2016 the City Council approved by Resolution No. 5709 and the City Manager
entered into a Developer's Agreement with the owner of Trumbull Creek Crossing for the
development of Phase II 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 23 lots described in the Plat of Trumbull
Creek Crossing, Phase III, a Flathead County Subdivision; and
WHEREAS, the owner of Trumbull Creek Crossing has executed a waiver of right to protest annexation
for the subject 23 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 Plat of Trumbull Creek Crossing, Phase III, 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 SEPTEMBER, 2016.
Mark Johnson
Mayor
ATTEST:
Aimee Brunckhorst, CMC
City Clerk
EXHIBIT "A"
EXTENSION OF SERVICES AGREEMENT
TRUMBULL CREEK CROSSING — PHASE 3
THIS AGREEMENT, made as of the _ day of September, 2016, 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, described as:
Plat of Trumbull Creek Crossing Phase 3 located in the NE 114 of the SE 114 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 1 and 2 of Trumbull Creek Crossing under the terms of the resolutions of the City cited
above and the property described above is Phase 3 of Trumbull Creek Crossing adjacent to
Phase 2 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:
I.OBLIGATIONS OF DEVELOPER
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.
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 shalI 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 3 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."
II.OBLIGATIONS OF THE CITY
1. The City shall provide municipal sewer treatment to the subject 23 property parcels described as Phase 3
of Trumbull Creek Crossing subject to a reservation of right to deny service at any time based upon future
legal commitments imposed upon the City's Sewage Treatment Plant by properties annexed into the City.
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.
III. AMENDMENT OR MODIFICATIONS OF
DEVELOPMENT AGREEMENT
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.
IV. GENERAL TERMS
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.
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 September, 2016.
NW DEV GROUP, LLC
by:
Michael Anders, Managing Member
CITY OF KALISPELL
Doug Russell, City Manager
STATE OF OREGON )
):ss
County of Multnomah )
On this day of September, 2016, before me, the undersigned, a Notary Public for the State of
Oregon, 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 Oregon
Printed Name:
Residing at
My Commission Expires
STATE OF MONTANA )
):ss
County of Flathead )
On this day of September, 2016, 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
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Return to:
Kalispell City Clerk
P.O. Box 1997
Kalispell, MT 59903
WAIVER OF PROTEST TO ANNEXATION
AND
NOTICE OF WITHDRAWAL FROM RURAL FIRE DISTRICT
The undersigned hereinafter referred to as Petitioner respectfully petitions the City of Kalispell
for municipal services from the City of Kalispell, such specific service being Wastewater
Treatment.
The Petitioner requesting City of Kalispell municipal services described herein is the fee owner
of that real property described in Exhibit A attached hereto and fully incorporated herein by this
reference.
In consideration of receiving the above -described municipal services from the City of Kalispell,
the Petitioner hereby agree to waive all rights of protest to annexation that the Petitioner may
have now, under Title 7, Chapter 2 MCA, or under any future federal, state or local law.
The Petitioner further herein express an intent, upon such future annexation, to have the property
as herein described withdrawn from the Evergreen Rural Fire District under the provisions of
MCA 7-33-2127; and that incorporated into this Waiver to Protest Annexation 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 further agrees 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.
The Petitioner further acknowledges that pursuant to MCA 7-6-1601 to 7-6-1604 the City shall
have the right to charge and the owner shall have the obligation to pay impact fees for the new
demand upon the City services delivered to the subject property which fees must be paid no
earlier than the date of issuance of a building permit if a building permit is required for the
development or no earlier than the time of wastewater or water service connection.
This City hereby agrees to allow Petitioner to connect and receive the utilities from the City of
Kalispell that are requested herein.
mho • a8 / 6, /��
Petitioner/Owner Date
Doug Russell Date
City Manager
NOTE: You must attach an Exhibit A that provides a bona fide legal description of the property
to be annexed.
STATE OF )
):ss
County of
� ra
On this 16P day of C°ic 1 , 2015, before me, the undersigned, a Notary Public
for the State of �� PC�rgvL - , personally appeared i'L f ' z_ _ in his
capacity as �that 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, Statq of
Printed Name;, ko�
OFFICIAL STAMP Residing�172-
_
KRISTiNA LYNN HOSEA at �`�� �D� jT
NOTARY PUBLIC-OREGON My Commission Expires
COMMISSION NO.928071
MY COMMISSION EXPIRES APRIL 30, 2018
STATE OF MONTANA )
):ss
County of Flathead )
On this day of , 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