PUD Ordinance 13241999216 6)84S� K
ORDINANCE NO. 1324
AN ORDINANCE APPROVING A PLANNED UNIT DEVELOPMENT ON CERTAIN REAL
PROPERTY OWNED BY THE DEPARTMENT of TRANSPORTATION, STATE of
MONTANA AND PACK AND CO.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL, AS
FOLLOWS
SECTION- --1. That the Planned Unit Development proposed by
DOMESITE upon the real property described in Exhibit "A",
attached hereto, incorporated herein, and thereby made a part
hereof, is hereby approved, subject to:
B) Development Agreement, dated ] 1999,
°� between DOMESITE and the Cit f Kalispell,
[Exhibit "B", attached hereto, incorporated herein
q and thereby made a. part hereof].
Thi s Ordinance shall take of f ect f rom and of ter
30 days of its passage by the City Council.
PASSED AND APPROVED BY THE CITY COUNCIL SIGNED BY THE MAYOR OF
THE CITY OF KA..LISPELL, MONTANA, THIS �- DAY OF JULY, 1999.
Wm. E. Boharski
Mayor
ATTEST:
IF
Theresa White
City Clerk
1
EXHIBIT *A"
Parcel 1
That portion of Govemm ent Lots 1 and 2, the Northeast Quarter of the Northwest
Quarter, and the Southeast Quarter of the Northwest Quarter of Section 3 1, Township 29
North, Range 21 Nest, P.M.M. Flathead County, Montana., more pardculariy descn'bed
as follows:
Commencing at the Northwest corner of Section 31, Township 29 Forth, Range 21 Nest;
thence along the Forth line of said serfion
South 89049'30" East, a distance of 70.00 feet to the Easterly line of U.S. Highway No.
93 right of way; thence along the Easteriy line of said right of r�ray
South 00'007' 10" West, a distance of 299.844 feet to the Paint of Beginning of the parcel
being descnlx�d,- thence continuing along the Easterly line of said right of way
South 00"OT 10" West, a distance of 640.57 feet; thence leaving said right of way
South 89*04'58" East, a distance of 464.06 feet: thence
South 30° 17'34" East, a disawce of 490.591* thence
South 35° 16'49" Vilest, a distanceof 26 7. 08 feet; thence
South 00*05'30" East, a distance of 367.06 fe&, thence
South 89°58'50" Bast, a distance of 1100.31 feet; thence
North 14058'20" West, a distance of 1932.64 feet to the Southerly If= of West Reserve
Drive, a deeded County road; thence along the Southerly line of said West Reserve
Drive the following courses:
North 89039'54" West, a dish of 363.71 feet,
North 00*20'O6'* Eas:� a dim of 20.00 few
Forth 89o38'41 " Nest, a distance of 374.94 feet;
North 00*2 I' l 6" East, a distance of 5.55 fee#, acid
North 89057'09" West, a distance of 107.45 Feet to the Southeasterly line of that parcel
descnlxd in Deed Document No. 9321115400, records of Flathead County, Montana;
thence along the Southeasterly Iine of said parcel,
South 18013' 15" West, a distance of 252.67 fed to the Southeasterly corner of said parcel;
thence along the the Southerly line of said parcel,
North 89056'22" West, a distance of 232.53 feet to the Point of Beginning.
Parcel 1 of Certificate of Survey No. 12230.
Excepting therefrom public roads and rights of way.
Parcel 2
That portion of Government Lots 1 and 2 of Section 31, Township 29 North, Range 21
West, P.M.M., Flathead County, Montana, more particularly described as follows:
Commencing at the Northwest corner of Section 31, Township 29 North, Range 21 West;
thence along the North line of said Section
South 89049'30" East, a distance of 70.00 feet to the Easterly Zinc of U.S. Highway No. 93
right of way; thence along the Easterly line of said right of way
South 00*07' 10" West, a distance of 940.71 feet to the Point of Beginning of the parcel
being dcscnl)ed; thence leaving said right of way
South 89*04'58" East, a distance of 464. 06 feed thence
South 30* 17'34" East, a distance of 490.59 feet; thence
South 35016'49" West, a distance of 267.08 feet; thence
North 89"09'50" Nest, a distance of 558.60 feet to the Easterly line of U.S. Highway No.
93 right of way; thence along the Easterly line of said right of way
North 00*07' 10" East, a distance of 640.91 feet to the Point of Beginning.
Parcel 2 of Certificate of Survey No. 12230.
Parcel 3
That portion of Government Lot 2 of Suction 3 1, Township 29 North, Range 21 West,
P.M.M., Flathead County, Montana, more particularly de'scn`bed as follows:
Commencing at the Northwest corner of Section 31, Township 29 Forth, Range 21 West;
thence along the Forth line of said section,
South 89'049'30" East, a distance of 70.00 feet to the Easterly Im'e of U.S. Highway
No. 93 right of way; thence along the Easterly line of said night of way
South 40P07' l 0" Nest, a distance of 158 I.62 feet to the Point of Beginning, thence
continuing along the Easterly line of said right of way
South 000°07' 10" West, a distance of 375.02 feet; thence leaving said right of way
South 89"58'50" East, a distance of 559.91 feet; thence
North 00°05'30" 'Vest, a distance of 367.06 feet; thence
North 89*09'50" West, a distance 558.60 feet to the Point of Beginning.
Parcel 3 of Certificate of Survey No. 12230.
Excepting therefrom public roads and rights of way.
THE END
DOMESITE PLANNED UNIT DEVELOPMENT AGREEMENT
This Agreement made and entered into this �-'l day of v ,l ,
1999, is by and. between Domesite, L . L . C . , a Minnesota LirAited
Liability Corporation, with its office and principal place of
business located at 50 South Ninth Street, Ste. 200, Minneapolis,
Minnesota, hereinafter DGMESITE, Pack and Company, with its office
and principal place of business at 2355 Highway 93 North,
Kalispell, Montana, hereinafter PACK, and the City of Kalispell, a
municipal corporation, with its office and principal place of
business located at 312 1st Avenue East, Kalispell, Montana 59901,
hereinafter CITY:
W I T N E S S E T H:
WHEREAS, DOMESITE is the contract purchaser and consensual
developer with PACK of certain real property located in
Flathead County, Montana, which is further described in
Exhibit "A" attached hereto and hereby made a part
hereof, and which hereinafter is referred to as the
"Subject Property"; and,
WHEREAS, DOMESITE, PACK, and the present fee owners of the Subject
Property have made a request for annexation of the
property described into the City of Kalispell, and,
WHEREAS, (i) DOMESITE and PACK desire to have the Subject Property
rezoned from Industrial ( I- 1) to a Commercial (B-2 )
Planned Unit Development (PUD), mapped with certain new
streets, building locations and accesses from U.S.
Highway # 93 and West Reserve Drive; ( ii ) PACK, has filed
a PUD and Annexation application which contains (a) Zone
change application, (b) PUD Narrative with Exhibits (c)
perimeter legal description, (d) Title Report, (e) land
owner consent to plan and. (f) large map exhibit; and,
WHEREAS, in order to allow the PUD and Annexation, assure the
installation of Infrastructure improvements with the
"Subject Property," permit connections to the City
utility systems, and prescribe the permitted uses within
the requested zoning areas, the parties hereto determine
it is to be in their best interests to enter into this
Planned. Unit Development Agreement.
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I. DEFINITIONS
1.01 Agreement shall mean this Planned Unit Development Agreement
between DOMESITE, PACK, and CITY.
1.02 Building Department shall mean the Building Department of the
City of Kalispell.
1.03 City shall mean the city of Kalispell, Montana.
1.04 City Council shall mean the City Council of the City of
Kalispell, Montana.
1.05 Developer shall mean DOMESITE with respect to Areas A and. B of
the Subject Property, and PACK or its successor in interest
with regard to Area C of the Subject Property.
1.06 Director of Public Works shall mean the Director of Public
Works of the City of Kalispell, Montana.
1.07 Easement(s) means the Easement(s) described in §3.04 of this
Agreement.
1.08 Master Site Plan means the site plan proposed for the
development of the Subject Property annexed hereto as Exhibit
B.
1.09 Project Site Plan means the site plan proposed for the
development of the Subject Property annexed hereto as Exhibit
C.
1.10 Phase means a stage of development within a portion of the
Subject Property designated in the Master Site Plan.
1.11 Proposed Buildings means the buildings shown on the Master
Site Plan, contemplated to be built in phases.
1.12 Subject Property or Subject Area means the real property
described in Exhibit "A" annexed hereto and made a part
hereof.
1.13 Substantial Completion shall mean that substantially all of
the work to be performed in the development of each Phase
shall have been performed and the improvements constructed in
each Phase are usable for their intended purposes, as
certified by the Director of Public Works and the Building
.0,
Department, which Certification shall not be unreasonably
withheld or delayed.
1.14 Infrastructure means all water mains, sewer mains and storm
drains defined as eight inch (8") pipe size or larger
including associated shut --off valves, fire hydrants, sewer
manholes, lift stations ( i f any) installed in accordance with
the Montana Public works standard specifications and the City
of Kalispell standards and general provisions for design and
construction. In addition, Infrastructure shall include those
roads that will be dedicated to the City and are constructed
in accordance with the Montana Public works standard
specifications and the City of Kalispell standards and general
provisions for design and construction. Said infrastructure
shall consist of the various public utilities and streets of
the type designated on C1.2 and C1.3, attached hereto as
Exhibits "A & Br' and thereby made a part hereof. Cast for said
infrastructure shall be as shown on Engineers' Estimate,
Infrastructure Improvements, Domesite PUD, Hwy 93 North,
prepared by Jackola Engineering, attached hereto as Exhibit
"C" and thereby made a part hereof.
II. GENERAL DEVELOPMENT AND USE OF THE SUBJECT PROPERTY
0 .01 Development Overview
(A) Subject to the other provisions of this Agreement, any
development within or use of the Subject Property
occurring after the effective date of this Agreement
shall substantially Conform to and comply with the
provisions of the PUD Application of July 22, 1998, as
amended and approved by the FRDO Staff Report #KPUD-- 9 8 - 1
and the City County Planning Board meeting on August 11,
1998, and the documents and drawings annexed to this
Agreement.
(B) Developer represents, and it is agreed between the
parties, that the development of the subject Property
shall be accomplished in Phases, as follows:
�1} Phase I shall Consist of (i) ground preparation and
site leveling of the entirety of the Subject Area;
and, except as referenced in 2 . 01 (C ), (i i ) the
Construction, installation, and extension of
utility mains and water lines to the Subject Area.
(2) Phase II shall consist of Construction of the
4Droads, parking lots, landscaping, and other site
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I
mprovements and interior streets in those portions
of the subject Area comprising "Area A" and "Area
B" as described on the Site Plan, which may be
installed as each lot is developed within the site,
and which may be developed to the extent necessary
to serve each lot during development.
(3) Phase III shall consist of final site preparation,
streets, installation of parking lots, landscaping,
and construction of the building improvements in
that portion of the Subject Areas comprising "Area
C" as described on the Site Plan, specifically the
coliseum, main convention center, and adjoining
facilities.
(C) Notwithstanding paragraph 2 . 01 (B) (1) above, it is
anticipated that site preparation and ground leveling of
areas currently occupied by batch plant facilities will
be delayed during the construction phases described
above, for a term not to exceed five ( 5 ) years, after
which, it is agreed that removal and relocation of the
NUPAC batch plant, associated equipment, and warehouses
will be completed.
(D) Developer represents, and it is agreed between the
parties, that the highest point of the roof or parapet
wall of the buildings constructed on the subject
Property, when measured from the average level of the
finished ground surface surrounding the structure within
a distance of twenty feet (20'), shall not exceed thirty
feet (30' ) in Area A, shall not exceed fifty-five feet
(551) in Area B. and in Area C, the coliseum shall not
exceed a height of 110 feet (110 ' ) .
(E) The use of large blank walls on the buildings within the
development, particularly Area A which face U.S. Highway
#93 and West Reserve Drive, shall be minimized.
(F) commensurate with the execution of this Agreement the
DOMESITE and PACK shall furnish security for the
infrastructure improvements described in § 1.14, supra.
Such security shall consist of, at the sole option of
Developer, performance bond(s) issued by a surety company
Licensed to do business in Montana, irrevocable letter(s)
of credit issued by a bank licensed to do business in
Montana, or such other security as shall be reasonably
acceptable to the CITY. DOMESITE shall have the option of
pledging the real property within Areas A and B to secure
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performance of this Agreement. such security shall be for
the benefit of and enforceable and collectible by the
CITY, acting through the city Manager, and shall be in an
initial face amount equal to 12 5 0 of the direct estimated
cost of the work so secured, as certified by Developer's
licensed professional engineer and the City's Director of
Public Works. If such security consist of letter(s) of
credit, the face amount thereof shall be reduced. by
Developer from time to time in an amount equal to three ---
quarters of the cost of the work completed, as certified
by Developer's licensed professional engineer and
approved by the city' s Director of Public Works.
Determination of the amount of the reduction shall be
made within 30 days of receipt by the Public Works
Director of said. certification. Developer may request
final release of the performance bond upon filing with
the Building Department a Notice of completion, which
will then be reviewed by CITY for final approval.
1} The infrastructure improvements, under § 1.14 shall
be substantially completed on or before July 1,
2006, unless an extension for the development is
granted by the city council. Said extension shall
not be unreasonably withheld. If said infra-
structure improvements are not completed, and no
extension received, the Council shall redesignate
the undeveloped portion of the subject Property in
accordance with the City of Kalispell Zoning
Ordinance, and proceed to exercise its rights to
securer under paragraph E, supra, infrastructure
improvements under this Agreement.
2.02 No Hazardous Substances
DoMESITE AND PACK represent that the Subject property is not
subject to any federal, state or local "Superfund" lien
proceeding, claim, liability or action, or threat or
likelihood thereof, for the cleanup, removal or re --mediation
of any "hazardous substance" from said property, and the
DoMESITE and PACK have not caused and will not cause, and to
the best of DoMESITE' s and. PACK' s knowledge there never has
occurred a release, leak, discharge, spill, disposal or
emission of any "hazardous substance" as of the date hereof.
"Hazardous substance" means any substance that is toxic,
ignitable, reactive, or corrosive and that is regulated by any
local government, state of Montana, or the United. states.
"Hazardous substance" includes any and all material or
substances that are defined as "hazardous wastes", extremely
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hazardous waste' or "hazardous substance" pursuant to state,
federal or local governmental law including without limitation
CERCL, SARA, RCRA, the Clean water Act, the OSHA Act, or the
Toxic Substance Control Act. "Hazardous substance" includes,
but is not limited to asbestos, petroleum products, nuclear
fuel, or materials, known carcinogens, urea formaldehyde,
foam -in -place, insulation, and polychlorinated biphenyl
(PCBs).
1. DDMESITE and PACK shall supply to the City a Letter
Closure issued by the State Department of Health
and Environmental Sciences.
2. In the event that any of the representations and
warranties set forth in this section are not true
in any material respect no property subject to this
Agreement may be pledged as security for the
installation of infrastructure.
2.03 Uses
(A) The primary use of Areas A and. B of the Subject Property
shall comprise a variety of commercial uses, including
but not limited to retail establishments, offices,
restaurants, hotels, and other similar uses, but shall
not include commercial establishments which require Large
areas for outdoor displays, such as automobile sales,
recreational vehicle sales, boat sales, and other similar
uses. It is agreed that no more than 250 of the
merchandise placed for display for sales by any
commercial user may be placed outdoors.
(B) Area C shall be comprised of a sports and multipurpose
coliseum complex, with additional commercial amenities
adjacent thereto.
(C) Developer agrees that building design and construction
upon the Subject Property shall conform to the relevant
Building Departments regulations governing commercial
construction.
(D) Developer agrees that the development shall be comprised
of buildings with a consistent architectural theme as
initially determined by the Developer, that will convey
a "village concept." This concept includes a pedestrian
oriented development with sidewalks, landscape boulevards
and bike paths. For purposes of this Agreement, the term
"village concept" includes a pedestrian -oriented
0
development with landscaped boulevards. The village pod
concept of development includes a number of anchor stores
with shops, restaurants, or offices with landscape. The
landscaped area could be utilized for outdoor seating for
any restaurants, for employee eating and break area, and
the public to rest in a relaxed atmosphere. The
architectural character of the structures would generally
follow a motif such as: a combination of stone, rock, or
brick as wainscot, columns, and accent; with wood
possibly utilized as the main architectural element.
2.04 Ownership
(A) In Areas A and B. DOMESITE represents, and it is agreed
between the parties, that the subject Property and
buildings constructed thereon may be conveyed, with
ownership transferred by DOMESITE to the building
occupant. It is anticipated that ownership of a portion
of the property comprising Areas A and B will remain in
DOMESITE, which will enter into leases with the occupants
of the buildings constructed thereon.
(B) In Area C. it is anticipated that title will remain in
fee simple with PACK until such time as a suitable
developer has been procured to commence and complete
construction of the coliseum complex. ownership of the
underlying real property in Area C will be subject to
contract between the current fee owner and the future
coliseum complex developer.
2.05 Relationship to Zoning ordinance
Except as specifically modified or superseded by this
Agreement and attached drawings, the PUD Application of July
2, 1998 as amended and approved in the FRDO Staff Report
#KPUD-98-1 and the City County Planning Board on August 11,
1998, the laws, rules, and regulations of the City of
Kalispell governing the use and development of land and
buildings, including the City of Kalispell Zoning ordinance,
shall apply to the Subject Property.
2.06 Drawings
The site plan drawings attached and the PUD Application dated
July 2, 1998 as amended and approved in the FRDO Staff Report
#KPUD-98-1 and the City County Planning Board on August 11,
1998, are an integral and essential component of this
Agreement and are incorporated herein by reference.
FA
2.07 Effectiveness and Cancellation
(A) The provisions of this Agreement regarding construction
of improvements on the Subject Property shall become
effective simultaneously with the approval of both the
PUD ordinance and Annexation request by the City Council
and shall terminate upon the issuance of a building
permits) for development of the last Phase on the
Subject Property, as set forth above. This Agreement may
only be modified or amended as set forth in Article V.
hereof.
( B ) Notwithstanding the terms of paragraph (A) , supra, upon
the termination of this Agreement, the terms of this
Commercial PUD related to zoning shall continue to be
effective as the regulations pertaining to the DOMESITE
Planned Unit Development.
2.08 Certification Procedure
Whenever under this Development Agreement a certificate by the
Director of Public works is required to be given, such
certificate shall be given after the receipt of a completed
application therefor and approved by the Director. Such an
application shall be deemed completed upon receipt of such
drawings and narrative information as are reasonably necessary
for the issuance of such certificate, which certification
shall not be unreasonably withheld or delayed.
III. SITE CONDITIONS
3.01 Development
The Subject Property shall be developed with the
Infrastructure improvements as described in this Agreement.
3.02 Access
(A) Primary access to the Subject Property shall be via the
major entrances located on the south boundary of the
Subject Property from U.S. Highway # 93 and on the east
boundary of the Subject Property from West Reserve Drive.
Secondary accesses will be provided via four ( 4 ) right -
turn only accesses, both in and out, along U.S. Highway
#93 North and on West Reserve street, as shown on Exhibit
B ..
all
(B) DOMESITE agrees that it shall, at its own expense, have
a comprehensive traffic impact study completed, which
will identify all expected traffic impacts and will
provide proposals for mitigation.
Following completion of the comprehensive study,
DOMESITE will obtain all necessary access permits
from the Montana Department of Transportation
and/or Flathead County Road Department and CITY
prior to use.
(2) DOMESITE agrees to pay for all necessary traffic
turn lanes, traffic signals, and other regulatory
signs and signals directly pertaining to ingress
and egress to and from U.S. Highway #93 and West
Reserve Drivef as required by the comprehensive
traffic study and CITY.
(C) All primary and secondary entrances shall be completed to
CITY standards prior to occupancy permits being issued
for any site utilizing said entrances for access.
(D) The two primary accesses shall be constructed to
accommodate a multi --lane roadway which will be
constructed along the south and east perimeter boundaries
of the Subject Area, as shown on Exhibit "B, " which
roadway shall comply with recommendations of the traffic
study referred to above, and which shall be reviewed and
subject to approval by CITY.
(E) 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, Bike Paths and Sidewalks
(A) DOMESITE and PACK acknowledge that the development of the
Subject Property includes development, at the Developer's
expense, of internal roadways providing access to the
lots within the PUD.
(B) Developers agree 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, as amended to account
J
for multi -lane road traffic with respect to the main
access roadway.
(C) Internal local and connector streets and roadways, with
landscaping amenities shall be constructed as necessary
to service all building sites and lots requiring access,
and shall be named and signed in accordance with CITY
Standards for Design and Construction.
(D) DOMESITE and PACK agree that they will maintain all
internal streets, boulevards, and sidewalks as private
with unrestricted public access.
�l} Sidewalks shall be provided as shown on the Site
Plan, in addition to sidewalks which will connect
Area A to the west with Area B to the east, within
the medians indicated on the Site Plan at the
perimeter of the parking lots.
(2) There will be a minimum of one pedestrian sidewalk
connection between Area B and Area C, which will be
located between Lots 8, 9, 10, 11, and 12, at
Developer's discretion-,
(E) The primary access roadway shall consist of a multi -lane
roadway as required by the traffic study referred to
above and shall be located on the south boundary of the
Subject Property which intersects with U.S. Highway #93,
and continuing to the east boundary of the Subject
Property where it will intersect with Vest Reserve Drive.
(1) It is anticipated that construction of the multi-
lane roadway will be accomplished in conjunction
with the development phases.
(2) Developers and CITY agree that during the
development of Areas A and B. an improved roadway,
the size of which will be determined by the traffic
study and which will be subject to approval by the
CITY, will be permissible for interior site access.
�3} At such time as construction of the building
structures is commenced in Area C, Developer will
at that time be required to expand the primary
access roadway to multiple lanes as provided in the
FRDO Staff Report #KPUD--98-1, dated August 4, 1998,
as amended August 11, 1998, and as required by the
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traffic study to be completed. by DOMESITE in
accordance with this Agreement.
(4) The primary access multi -lane roadway along the
perimeter of the Subject Property shall be designed
and developed so that it does not exceed a six --
percent (6%) grade in any area. Lanes shall be
twelve feet (12 ' ) in width with a five foot ( 5 ' )
wide bicycle path on each side.
( 5 ) The primary access roadway shall be posted with a
maximum. 25 mile per hour speed. limit.
Following completion of the main access roadway as
part of Phase III of the Development, it is agreed
that the main roadway located on the southerly
boundary and continuing on the easterly boundary of
the Subject Property shall be dedicated to the
public and shall at that time be maintained by CITY
in the same manner as other publicly -dedicated CITY
roadways.
( F ) Prior to the Building Department issuing any permit of
any foundation or building permit on a Phase, Developer
shall furnish security for the Infrastructure
improvements, in substantial conformity to and compliance
with the provisions of this Agreement, of the
improvements specified in this section. Such security
shall consist of, at the sole option of Developer,
performance bond(s) issued by a surety company licensed
to do business in Montana, irrevocable letter(s) of
credit issued by a bank licensed to do business in
Montana, the real property subject to this PUD Agreement,
or such other security as shall be reasonably acceptable
to the CITY. Such security shall be for the benefit of
and enforceable and collectible by the CITY, acting
through the City Manager, and shall be in an initial face
amount equal to 125% of the direct estimated cost of the
work so secured, as certified by Developer's licensed
professional engineer and the City's Director of Public
Works. If such security consist of letter(s) of credit,
the face amount thereof shall be reduced by Developer
from time to time in an amount equal to three-quarters of
the cost of the work completed, as certified by
Developer's licensed professional engineer and approved
by the City's Director of Public works. Determination of
the amount of the reduction shall be made within 30 days
of receipt by the Public works Director of said
11
certification. Developer may request final release of
the performance bond upon filing with the Building
Department a Notice of Completion, which will then be
reviewed by CITY for final approval.
1 } In the event land is offered as collateral
security, it is agreed that the value of the land
shall be adequate to provide CITY with the
guarantees of performance required under this
section.
(2 ) It is further agreed, that as each parcel of land
is developed, bond security will be substituted for
the land, such that the entirety of the
Infrastructure improvement required hereunder are
continually guaranteed throughout all phases of
development of the Subject Property.
(3) In the event Developer has provided land as
collateral security and Developer appears to be
prospectively unable to complete its obligations
under this Agreement, or is otherwise unwilling to
complete its obligations under this Agreement, the
CITY may, at its option, demand that Developer
provide CITY reasonable assurance of future
performance, which may include, but not be limited
to the following options:
i } Transfer of unencumbered fee title to the
undeveloped portions of the Subject Property
owned by Developer, to the CITY;
(ii ) Require the Developer to post bond security in
sufficient amounts to guarantee completion of
all Infrastructure improvements on the real
property;
(iii)Any other similar forms of security reasonably
deemed adequate by CITY to assure completion
of the Infrastructure improvements on the
entirety of the Subject Property.
(4) In no event shall this Agreement be construed as to
require CITY to complete installation of
Infrastructure improvements on the Subject
Property, or on any portion thereof, during any
phase of development of the Subject Property.
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3.04 Sewer and water
(A) Sanitary sewer service to the Subject Area shall be
accomplished via extension from the existing twelve inch
(12") main existing at the current terminus near the
Flathead Valley Community College (FVCC). Said sanitary
sewer service shall be stubbed out at the further
boundary through the property, in accordance with the
CITY Extension of Services policy.
(B) CITY agrees that water service to the subject Area may be
provided by means other than a looped extension of the
existing twelve inch (12") line which will be extended to
the Subject Area from the current terminus near FVCC. An
existing on -site water well will provide an alternative
source of water service to the subject Property, in the
event maintenance requires a shutdown of the CITY water
main to the Subject Property.
�1} DOMESITE and PACK agree
will be constructed in
Kalispell's Standards J
that the on -site water well
accordance with the City of
or Design and Construction.
(2) The on -site water well will be capable of producing
sufficient quantities of water necessary to service
needs to the subject Property, as determined by
hydraulic modeling tests, to be prepared by
Developer prior to construction on the Subject
Property. All costs associated with upgrade of the
on -site water well, necessary to meet applicable
City of Kalispell Standards and needs as determined
by hydraulic modeling tests, shall be borne by
DOMESITE.
(3) PACK represents and agrees that a valid water
appropriation right has been filed and is of record
with the State of Montana Department of Natural
Resources and Conservation (DNRC). PACK agrees
that this water right shall be transferred to the
CITY at no cost to CITY at the completion of the
project. At its option, PACK may transfer
ownership of the said water well to CITY prior to
completion of construction, with the understanding
that CITY will not charge PACK or the Developer for
well water used on -site during construction.
(4) In the event the on -site water well does not
provide an adequate alternative to the "looped"
13
water system and cannot, through reasonable means,
be brought into compliance with applicable Federal,
State, and city Standards by DOMESITE and PACK,
then DOMESITE and PACK, collectively, shall have
the option of rescinding this Agreement in its
entirety. DOMESITE and PACK, upon rescission, under
this paragraph, shall petition the city for the
exclusion of the Subject Property pursuant to § 7-
2 -4 801, et seq. M.C.A. ( Provisions for de -
annexation) .
(C) All sanitary sewer and water utilities shall be designed
and installed as shown on Preliminary Project Plan C1.3
and in accordance with the City of Kalispell's Standards
for Design and construction.
(D) All utility Infrastructure located within the Subject
Property shall be the property and maintenance
responsibility of Developers, until such time as the
installation is completed and dedicated to the public.
(E) DOMESITE agrees to obtain all necessary easements for the
extension of water and sewer to the Subject Property. In
addition, Developer will grant to CITY any and all
easements necessary for CITY to perform maintenance of
water and sewer lines installed pursuant to this
Agreement.
(F) No expansion of the sanitary sewer system is anticipated.
However, in the event that CITY requires installation or
expansion of water and/or sewer lines larger than those
required to service the current needs of CITY and of
Developer as determined by hydraulic modeling tests, then
CITY shall pay those only costs associated with the
increased utility main sizing to the Subject Property.
(G) Prior to the Building Department issuing any permit of
any foundation or building permit on a Phase, Developer
shall furnish security for the Infrastructure
improvements, in substantial conformity to and compliance
with the provisions of this Agreement, specified in this
section. Such security shall consist of, at the sole
option of Developer, performance bond(s) issued by a
surety company licensed to do business in Montana,
irrevocable letter(s) of credit issued by a bank licensed
to do business in Montana, the real property subject to
the PUD Agreement, or such other security as shall be
reasonably acceptable to the City. Such security shall
14
be for the benefit of and enforceable and collectible by
the City, acting through the City Manager, and shall be
in an initial face amount equal to 1250 of the direct
estimated cost of the work so secured, as certified by
Developer's licensed professional engineer and the City's
Director of Public Works. If such security consist of
letter(s) of credit, the face amount thereof shall be
reduced by Developer from time to time in an amount equal
to three --quarters of the cost of the work completed, as
certified by Developer's licensed professional engineer
and approved, by the City' s Director of Public Works.
Determination of the amount of the reduction shall be
made within 30 days of receipt by the Public works
Director of said certification. Developer may request
final release of the performance bond upon filing with
the Department of Public Works a Notice of Completion,
which will then be reviewed by CITY for final approval.
In the event land is offered as collateral
security, it is agreed that the value of the land
shall be adequate to provide CITY with the
guarantees of performance required under this
section.
( 2 ) It is further agreed, that as each parcel of land
is developed, bond security will be substituted for
the land, such that the entirety of the
Infrastructure improvement required hereunder are
continually guaranteed throughout all phases of
development of the Subject Property.
(3) In the event Developer has provided land as
collateral security and Developer appears to be
prospectively unable to complete its obligations
under this Agreement, or is otherwise unwilling to
complete its obligations under this Agreement, the
CITY may, at its option, demand that Developer
provide CITY reasonable assurance of future
performance, which may include, but not be limited
to the following options:
i } Transfer of unencumbered fee title to the
undeveloped portions of the Subject Property
owned by Developer, to the CITY;
(ii) Require the Developer to post bond security in
sufficient amounts to guarantee completion of
15
all Infrastructure improvements on the real
property:
( iii) Any other similar forms of security reasonably
deemed adequate by CITY to assure completion
of the Infrastructure improvements on the
entirety of the Subject Property.
(4) In no event shall this Agreement be construed as to
require CITY to complete installation of
Infrastructure improvements on the Subject
Property,, or on any portion thereof, during any
phase of development of the Subject Property.
(H) Following completion of installation of the sewer and
water lines on the Subject Property by Developer, 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.
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.
(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 of Kalispell's Emission Control Plan and CITY
Standards for Design and Construction.
(B) Prior to commencement of site grading DOMESITE and PACK
agree to obtain an Air Quality Construction and
Demolition Permit from the Director of Public Works, and
to comply with the terms and conditions of said Permit
during construction.
( C ) A site grading plan shall be submitted to the Director of
Public Works for review and approval prior to the
commencement of any grading work.
Met
3.07 Fire Suppression
(A) Prior to the Building Department issuing any permit of
any foundation or building permit on a Phase, the Fire
Chief for CITY must certify that Developer 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) DOMESITE and PACK agree 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) Street trees shall be placed within the landscaped
boulevard for the street connecting the primary access
with the secondary access and be spaced at 50 foot
intervals and shall be a minimum of two-inch caliper at
planting.
(B) The primary access roadway shall have a one hundred foot
( 100 ' ) landscaped median in the middle Zane at each major
perimeter road entrance as shown on the Site Plan and a
landscaped median for the entire length of the radius of
the turn at the southeast perimeter corner of Area C of
the Subject Property.
(C) Landscaping and shrubbery in interior parking lots other
than along pedestrian sidewalks will be installed and
maintained below driver eye level to facilitate rapid
recognition of potential driving hazards and to increase
public safety.
(D) Except as hereinafter provided, retaining walls in excess
of six feet (6') tall shall be minimized.
�1} In the area of the coliseum/convention center
loading dock, retaining walls higher than six feet
(61) will be permissible.
(2) It is anticipated that landscape terracing will be
utilizing retaining walls for the transition area
between Areas B and C.
17
(E) The landscaping along U.S. Highway #93 and West Reserve
Drive shall include street trees placed at seventy --five
foot (75') intervals which are a minimum two-inch caliper
at planting.
(F) In Area B. a landscaped area will be installed at the end
of each parking aisle and the parking medians which will
include a minimum of one street tree with a minimum of
one -inch caliper at planting, along with other shrubs or
greenery.
3.09 Off -site Bike Paths
DOMESITE agrees to install a bike path along U.S. Highway #93
and Nest Reserve Drive as shown on the Site Plan, which will
be consistent with the existing bike path along U.S. Highway
#93, as soon as site conditions allow, or are practical.
Internal bike paths on the Subject Property shall be
constructed in accordance with requirements set forth above in
Section 3.03.
3.10 Lighting
(A) Developers shall submit a lighting plan to CITY which
utilizes attractive lighting fixtures and a type and
level of lighting not exceeding what is appropriate for
its purpose and which is consistent with all existing
ordinances of the CITY.
(B) The lighting plan shall be reviewed and approved by the
Director of Public works.
3.11 Signage
(A) Developers agree to submit a sign plan to the Kalispell
Zoning Administrator which complies with the Kalispell
Zoning ordinance.
(B) The major entrance signs located at the entrances from
U.S. Highway #93 and west Reserve Drive shall not exceed
a height of thirty-five feet ( 3 5 ' ) and shall not exceed
thirty --five feet ( 35 ' ) in width. Reader board signs in
these locations with a surface area of ten feet (10' ) by
twenty-four feet (24') will be acceptable, with
substantial supports utilizing masonry facing.
I:
(C) All signage on the Subject Property shall be made of
natural colors and materials and utilize an integrated
architectural design of lettering and materials
Compatible with the needs of activity sponsors and
building owners and. tenants.
(D) It is specifically agreed that the large entrance sign
referred to in part 3.11(B) above, will not be installed
until Construction of the proposed Dome as part of Phase
III of the Development project.
(E) Sculptures at the entrances not exceeding the size
limitations for signage will be acceptable.
(F) It is agreed that no signage will be permitted on the
Subject Property advertising activities taking place at
locations other than on the Subject Property.
IV. CITY SEWER/WATER CONNECTION FEES
4.01 Connection Fee Schedule
(A) Connection fees for Connection to the City water and
Sewer Utility, based upon Resolution. No. 4287 and
Resolution No. 4288, will be determined in accordance
with CITY Standards and fee schedules, then in effect for
Commercial structures of the type to be placed on the
Subject Property.
(B) Developer agrees to pay the Connection fees associated
with the utility Connections at the time of obtaining the
Building Permit for each structure.
(C) Developer will be entitled to reimbursement of a portion
of the costs of installation and extension of sewer and
water lines through "latecomer's fees" which shall be
recovered in accordance with an agreement to be prepared
within thirty (30) days of this agreement providing that
all design Costs, Construction costs, right-of-way
acquisition Costs, or other Costs incidental to providing
sewer and water to the Project Site shall be subject to
reimbursement from latecomer's.
�1} These Costs shall be prorated to latecomers based
on land area owned or Controlled by latecomers who
Connect to sewer lines and water lines after
installation thereof by the Developer.
19
( 2 ) It is further agreed that square footage owned or
controlled by the Developer or his successors and
assigns shall be included in the overall
computation of total square footage for purposes of
determining the appropriate prorated latecomer's
fee.
V. AMENDMENT OR MODIFICATIONS OF AGREEMENT
5.01 Amendment or Modification Procedures
This Development Agreement may be amended or modified only by
application of Developers), 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 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.
(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) Developers 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.
0
VI. CONSTRUCTION PHASING
6.0 1 General Requirements
No building permit in respect to the construction in any Phase
shall be issued by the Building Department until:
(A) The Zoning Administrator has certified to the Building
Department that the proposed buildings) substantially
conform to the Master Site Plan and §§2.01, 2.02 and 2.05
of this Agreement.
(B) The Director of Public Works has certified to the
Building Department that the Infrastructure improvements
and roads referenced in this Agreement and/or shown on
the Project Site Plan have been constructed or security
guaranteeing the construction has been received by the
city.
(C) For purposes of this Section, the "Security" required
shall be in an amount equal to 12 5 % of the Developer' s
licensed engineer's estimate of the cost of constructing
said. improvements.
VII. MISCELLANEOUS
7.01 Severability
In the event that any provisions of this Agreement shall be
deemed., decreed, adjudged or determined to be invalid or
unlawful by a court of competent jurisdiction, such provision
shall be severable and the remainder of this Agreement shall
continue to be of full force and effect.
7.02 Recordation
This Agreement, and any major amendments thereto, shall be
recorded in the office of the Flathead County Clerk and
Recorder.
7.03 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
21
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.
7.04 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
supersedes any other written or oral agreements or
representations between the parties. This Agreement can be
modified only in writing, signed by all parties hereto.
7.05 Binding Effect
This Agreement shall be binding upon and inure to the benefit
of the respective parties, heirs, successors and assigns.
Dated this Z:7 day of
�m
It:
J 1999.
CITY of KALISPELL
By: • r
Its: G/Ty
STATE OF MON TANA }
} ss.
PA
Mn
I
Attest:
By:
Its: r
County of Flathead }
0"I
On this ._ ,,Iday of ,
undersigned, a Notary Public f r t e State
`
appeared known to m
�� F
representative for DOMESITE, L.L.C.. the
subscribed to the foregoing instrument and
he/she executed the same on behalf of the
Notry Public
Residing at
My Commission
STATE OF MONTANA }
} ss.
County of Flathead }
1999, before me the
of Montana, personally
e to be the authorized
person whose name is
acknowledged to me that
said entity.
--thee State of Montana
Expir
On this ZJA4� day of ,
undersigned, a Notary Public fot th4 state
appeared iA:1 t known to m
represent a � ' vie f 04 PACK and COMPANY, the
s ubsc.-ribed. to the foregoing instrument and
he/she executed the same on behalf of the
STATE OF MONTANA }
) ss.
County of Flathead }
1999, before me the
of Montana, personally
e to be the authorized
person whose name is
acknowledged to me that
sa d entity.
Not ar Public for the State of Montana
Resids g at t av-"af)JC�
My Commission Ex ires ('-
On this /I/rP day of juL , 1999, before me the undersigned,
a Notary Public for the State of Montana, personally appeared
�IR1 &jKUL_6j<1 known to me to be the C 17y A&4A&4 a/e
for the City of Kalispell, and AM V ZKO& the
D1R6C7-0A:,:' for the City of Kalispell, the persons
whose names are subscribed to the foregoing instrument and
acknowledged to me that he/she executed the same on behalf of the
City of Kalispell.
Notary Public or he state of Montana
Residing at
My Commission Expires. a.....
23
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