The URL can be used to link to this page

Citizens for a Better FlatheadC►TIZENS �, FOR A BETTER FLATHEAD To: Kalispell City Council 01/07/2008 From: citizens for a Better Flathead Po Box 771,, Kalispell■ MT 59903 Re: The Glacier Town Center Annexation,, Planned unit Development and Subdivision Phase 1 Please accept the following comments regarding the proposed Glacier Town Center for the hearing record. The Glacier Town Center fails to comply with Kalispell's PUD standards, Growth Policy, and Subdivision Regulations: • Kalispell zoning provisions for PUD's ( 27.21.030 (2)) require that a PUD "Shall be under single ownership." ✓ It should be noted that the Glacier Mall./Town Center PUD is not under sin le ownership -as required by the city zoning regulations. Furthermore, established access rights have not been clearly disclosed by the applicant as required by the city's subdivision regulations and EA1. These facts call into question the city council's legal authority to accept and process this application. It also raises rvblems for the city and MDT in bein able to deal with one land owner when establishing,land use conditions for limited and consolidated access points to the Glacier Mall/Town Center that allow for the preservation of the functional integrity and safe and efficient operation of US 93. Attached is a map documenting that the property is not under single ownership. v' The main entrance to the proposed Glacier Mall/Town Center is located on property owned by Gary and Janet Spannuth on property adjoining the Glacier Memorial Cemetery. Under the right-of-way condemnation proceedings by the MIST against the Spannuth property a sin le Soft wide -private access was established and was further limited into the future by the Limited Access Resolution adopted by the Montana Highway Commission in 1989. This access is considerably less than the Soft access ' Kalispell Subdivision Regulations under Contents of the Preliminary Plat at (F) call for this disclosure as does the community impact report of the EA under 2. g. with -stoplight on US 93 p1gposed in the Glacier Mall/Town Center application. • Kalispell PUD regulations require that: "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 findings shall be made only after consultation with the city attorney." 27,21,020 (2) (e). Yet no evidence of review by the city attorney has been presented. PUD requirements regarding building heights: The Glacier Mall/Town Center PUD calls for the unrestricted use of 60 foot height limits when the City's PUD standards require compliance with 35 foot building heights. City PUD regulations do not allow for this do foot height unless it is an exception handled as a variance. A blanket height limit of 60 feet should be denied. • The Kalispell Growth Policy Update calls for policies that do not support additional stoplights and unlimited access control onto US 93: GOAL -1: Gateway entrances to Kalispell that enhance the community through improved design. POLICIES: 1. Gateway Entrance Corridors (areas of special concern) would extend up to 150 feet of either side of the existing Rlw for primary highways and up to 50 feet for secondary highways. 2. The following, roadway corridors are identified as gateway entrances to Kalispell. a. Highway 93 North corridor north of Four Mile to the County Landfill. b. US Highway 2 (LaSalle) from Deserve Drive to Birch Grove c. whitefish Stage from Reserve Drive to Birch Grove. (minor entrance way) 3. The following design standards are intended to enhance the gateway entrances to Kalispell a. Access control is important along the gateway entrance roads. b. Access should be coordinated so as to allow only collector or arterial streets to intersect. The judicious use of right -in right -out approaches, frontage roads and good internal development street design should be the rule to reduce or eliminate the need for direct access onto major gateway roads. c. with the construction of the Church Drive overpass on US 93, every effort must be taken to fully utilize this interchange and conversely limit direct access onto US 93 for at least 1/4 mile along areas north and south of this facility to avoid congestion points and the need for future traffic signals. The judicious use of right -in right -out approaches, frontage roads and good internal development street design will mitigate the need for direct access out. d. Extra setbacks, buffering and landscaping along US Highway 93 North and US Highway 2 and to a lesser degree along whitefish Stage Road are the norm. e. In those areas planned for general commercial development on a gateway entrance, it should occur as an integrated development utilizing and enhancing the 2 property back from the gateway as opposed to occurring as a shallow linear strip. Significant individual business highway exposure, individual access points, and pole signage would not be the norm. Out parcels of commercial businesses would be anticipated within the improved design of a PUD along the corridors. f. Additional design standards should be developed to ensure that signage enhances development, not detracts from it. Nall signage integrated into the overall building design is preferred over free standing signage. Monument signs are preferred over other types of free standing signage. Where development entrance signage or monument signage is proposed, it should be done so as part of a unified planned unit development concept. g. Where the adjacent gateway road speed is posted at 3 5 mph or lower: i. A minimum 20 foot landscape buffer should be provided abutting the gateway road. ii. Street trees should be incorporated into the landscape buffer. iii. A pedestrian trail or sidewalk should be incorporated into the landscaped buffer area. iv. Four sided architecture would be the norm adjacent to gateway entrances. h. Where the adjacent gateway road speed is posted from 36 — 45 mph: i. A minimum of 40 feet of landscaped buffer area should be provided. ii. Street trees and berming should be incorporated into the landscaping. iii. A pedestrian trail or sidewalk should be incorporated into the landscaped buffer area. iv. Four sided architecture would be the norm adjacent to gateway entrances i. Where the adjacent gateway road speed is posted above 45 mph: i. A minimum 100 — 150 foot impact area should be provided for major entrances and a 50 foot entrance for minor entrances. ii. Within this impact area, a combination of berm m* g, landscaping using live materials and trees as well as grass, a pedestrian trail system, limited parking and frontage roads should be incorporated. ill. Primary buildings should not be located in this impact area, unless specifically approved in a PUD. iv. Four sided architecture should be the norm for development adjacent to the impacted area. v. Monument signs would be anticipated to occur in the rear portion of the impacted area, other free standing signs would not. vi. Whenever parking or signage is proposed in the impact area, it shall only be done under a PUD process where the impacts of these actions are anticipated and provided for. ■ Kalispell Subdivision Regulations implement these growth policy goals and policies in section 3.09 by establishing that: K. Street intersections shall meet the following requirements (pg. 39): ' Kalispell Growth Policy, page 78 9J 8. Location of collector and arterial streets shall comply with the Kalispell City -County Master Plan or any other major street and highway plan adopted by the Board of County Commissioners and/or the City of Ialispell.3 ■ The Kalispell Growth Policy for this area calls for "up to 45% general commercial (270 acres) and up to 25% urban mimed use (150 acres)." Dote the Glacier Mall proposal makes a joke of this mixed use designation, which should be largely residential as this is the common planning definition of mixed use. Instead by calling for 95% of this mixed use area to be general commercial also it is not in beeping with the city's growth policy. Thus the Glacier Mall proposal asks for 66% general commercial (322 acres) with a B--3 general commercial zoning and does not comply with the city's growth policy that allows for u alto 45% general commercial or only 270 acres. ■ Policy 4 on page to of the Kalispell Growth Policy states "Affordable housing should be recognized as a primary consideration within the community when adopting or amending land use regulations. The ability of the average wage earner to either buy or build a home is an essential component of the standard of living, quality of life, and general welfare in our community. This development is proposing to create a significant number of retail jobs that rarely provide a "living wage" given housing costs in the city and county. This development fails to nmitigate this by providing permanent affordable housing within this development. ■ The applicant's Environmental Assessment is inadequate given accurate transportation data has not yet been submitted. In a letter dated Nov 27 from the MDOT to the developer, additional information was requested. As shown in the attached email, the developer has not provided the MDOT with the materials requested in the Nov 27 letter. o An approved TI S for all phases based on accurate data should be available prior to approval of the preliminary plat in order for the council, staff and public to evaluate the subdivision impacts, City Subdivision Regulations state that, "Each question pertinent to the proposal must be addressed in. full (both maps and text); those questions not applicable shall be so stated. Incomplete Environmental Assessments will not be accepted. The sources of information for each section of the Assessment shall be identified. All Environmental. Assessments shall contain the signature, date of signature and mailing address of the owner of the property and the person, or persons, preparing the report." ' Kalispell Subdivision Regulations, page 39 4 Page I of I Meaan McCrae From: "mayre" <fowers digisys. net> To: "Megan McCrae" <megan a@fiatheadcitizens.org>; "Mayre Flowers" <Mayre c flatheadcitizens.org> Sent: Monday, January 07, 2008 4:44 FM Attach: Document.pdf Subject: [Fwd: [Fwd: RE: Glacier Town Center Review]] Mayre, there were no recordings or minutes from the meeting that I am aware of. Any revisions/analysis discussed in the meeting that require the developer to submit: new information are formally covered by comment number 2 from our November 27th, fetter. Again, to my knowledge, we have not recieved any materials from the developer since this meeting or as a result of this letter. I would like to point out that the sort of information and revisions that we requested from this developer are routine. Nothing in this request should be taken as an indication this developer could not or will not complete MDT's review process for permits. I have attached MDT's November 28th, 2007 letter that further details MDT's position on the review process for this development. Also, you are welcome at any reasonable time to view the file or request copies of the file materials generated during the review of this development. We require that you request the information you wish to view in writing so that we can ensure you have the correct information. In this case, you would simply need to request to view or obtain copies of all the information in the file for the Glacier Town Center. There are costs associated with copies of materials that you will need to bear. Your formal request can be foxed to me at 406-444---7671. mike From: mayre [mailto:flowers(cbdiaisys.netJ Sent: Wednesday, ,January 02, 2008 11:39 AM To: Tierney, Michael, Mayre Flowers Subject: Re: Glacier Town Center Review Michael ---Thames for your note. My question was a bit more specific and I ask that you clarify your response below. My question is : At the November 26th meeting between MITT, Wolford Development, and the City of Kalispell it was pointed out by an MDT engineer that the developer's traffic study had assumptions that could not be made including that improvements of an upgrade of Reserve to five lanes and Whitefish Stage to four lanes would already be in place and that the Reserve intersection would be rebuilt. The developer's engineer responded at that meeting that they would provide revised figures later that day that removed assumptions that other road improvements were in place. Have you receive those revised figures` If so will you please FAX those to me today. Is there a recording of that meeting on the 26th and are there minutes from that meeting? I look forward to your response. Thanks Mayre Mayre Flowers Fxeeutivc Director Citizens for a Setter Flathead FO Sox 771 Kalispell, MT 59903 406-756--8993, fax 406-756-8991 mayre@flatheadcitizens .orq flatheadcitizens.org 1 /7 /'? n Q CITIZENS FOR A a BETTER FLATHEAD From Kalispell Subdivision Regulation Conditions not met or information on ci ability to reLyulate conditions: 3.08 ACCESS: B. where access to the subdivision will be by an easement across privately owned property, the subdivider must provide evidence that the necessary easement has been acquired and that the easement encompasses the nature and intensity of the use which will result from development of the subdivision. 3.09 STREETS AND ROADS - DESIGN STANDARDS (pg. 37): C. Residential driveways shall not have direct access to arterial streets or State or Federal Highways.1------------------_____-______----_____.---------------------------__--__---___ Commentfmfil: �tisnot:ciearchat .. _--_-____-_---________-_-..____--___ E. when a subdivision abuts or contains an existingor osed arterial street the CityEngineer prop� � priyatn roahs can tic granted access to federal highways for these types of uses may require a frontage roads or other treatmen as may be necessary far adequate protection of or. t 5,aa�antageoasfortha`czty to. -- " residential properties and to separate arterial and local traffic. Screen plantings or other means of , allow theso roads to remain private when they ;are prvPws to.pro�vide public . screening may be required in areas abutting arterial streets or highways. . access, . e pmpQs aumetraffic? F. when a subdivision abuts or contains a railroad right-of-way or a controlled access highway, a Cpmmen rnfl s t aiv irin street approximately parallel to and on each side of such right-of-way at a distance suitable for an rriyt& euire appropriate use of the intervening land may be required. Such distances shall also be determined,dIa iixfrastncture needed to separate a�`terial with regards to the requirements of approach grades and future grade separations. 'ifixs wcauIt3.lxs tL rUl1L �iUt1 �#.i1 ,�ii13IQI" ;11tercl tinge an it should he required. K. Street intersections shall meet the following requirements (pg. 39): 8. Location of collector and arterial streets shall comply with the Kalispell City -County Master Plan or any other majpr_street and highway plan adopted by_the Board of County Commissioners-ammentrrtf3: The proposed traffic and/or the C i o f Kalispell. plan :for the C�la�ier town :Center does not comply with the city growth . policylmiistvr plan G. Land Use d. Describe the basis of the need for the subdivision. How much development of a similar nature is, or is not, available in the area` -------------------- 1--��-4------------------------------------- -------------------------- w-------- - Cammentml�4]:Thishasnatbeen . done'and 'stio0d' be. done.'by:an :independerit. commercial needs assessment f6r the service area. r. CONTENTS OF THE PRELIMINARY PLAT (Appendix A pg.1): F. All existinand adjoining streets and alleys,_ avenues, roads and hi---------- ghway, and width of the _ w Comen tmf5: Easements for right-of-way with existing and proposed street names and access points from the nearest public :i3ot Ling accesses and righk of ways have g p p P P pot bcerr discloaoa. roads; G. Any existing and proposed utilities, utility easements and right-of-way easements located or proposed to be located on or adjacen0o the tract, including description of their width_ and _ - Comment.[mf6]: This has not boon purpose; `provided fur land not owned by Woldford 1�cvai�pmdri# Environmental Assessment elements for which adequate information has not yet been provided. State law and Subdivision Regulations require the developer to submit an application with a complete Environmental Assessment which meets all of the mandatory disclosure requirements. Clearly that has not been done in this case. As you are probably aware, in Neighhors Over the Aquifer (NOTA) u. Board of County Commissioners of Flathead County, Cause No. DV-05-179(B), Judge Curtis granted summary judgment to the plaintiffs and invalidated this subdivision at issue on the basis that the applicant failed to submit all of the information required in its application and Environmental Assessment. As Judge Curtis explained: "There are a myriad of reasons why the legislature has required the applicant to provide the information prescribed for the EA; one being that this is a burden that cannot and should not be placed upon the public, who are, predominantly, simply interested citizens without the resources or technical expertise of a developer... The bottom line is that the responsibility for submitting a complete EA falls on the developer and, in the instant case the board approved a submission based on an incomplete EA." (NOTA Order of 7/28/06 at p. 9.) Ana roved TIS for all phases based on accurate data should be available prior to a roval of the -- Cwiment:[mf7'�; soc PP P P PP _------- ------ preliminary plat in order for the council, staff and public to evaluate the subdivision impacts. City na�� fr�tp T trot ` 0 u m'tl�is accurate and camp]cte data . Subdivision Regulations state that, "Each question pertinent to the proposal must be addressed in full has notyct`1 nprovid. (both maps and text); those questions not applicable shall be so stated. Incomplete Environmental Assessments will not be accepted. The sources of information for each section of the Assessment shall be identified. All Environmental Assessments shall contain the signature, date of signature and mailing address of the owner of the property and the person, or persons, preparing the report." Appendix B. PART II - SUMMARY OF PROBABLE IMPACTS (pg.9): c. Describe how the subdivision allows existing services, through expanded use, to operate more efficientl�_or makes the installation or irpprov_ement of services_ feasible_{e.a. allow_inst- - -a.11a- - - -tioncommentIMMI WoVord T, c of a central water system, or upgrading a country road). Assessment nt fail to answer tmentsl Assessment fails to ansv�iar this: Appendix B. PART III - COMMUNITY IMPACT REPORT (pg.Il): 2. Roads and Maintenance- _________w-------------w_-_-_---_..__-----_______--__---__-__--____Ww__m_-----------____-M_-M_--__---___ - Cammen�Imf�]: Th�_�Io�ord a. Estimate how much daily traffic the subdivision, when fully occupied, will generate on 1a�viid t�ienxal,A s ail fails to provide, th�;�e��t of clota�] and existing streets and arterials. it brmation roqt�ro here b. Describe the capability of existing and proposed roads to safely accommodate this increased traffic. c. Describe increased maintenance problems and increased cost due to this increase in volume. d. Describe proposed new public or private access roads including: i. Measures for disposing of storm runoff from streets and roads, it. Type of road surface and provisions to be made for dust. iii. Facilities for streams or drainage crossing (e.g. culverts, bridges). iv. Seeding of disturbed areas. e. Describe the closing or modification of any existing roads. f. Explain why road access was not provided within the subdivision, if access to any individual lot is directly from arterial streets or roads. g. Is year-round access by conventional automobile over legal rights -of -way available to the subdivision and to all lots and common facilities within the subdivision? Identify the owners of any private property over which access to the subdivision will be provided]-._ _ - _ - , - - - - r - - . - - - - - - . _. J Commentin'thbl: Not d'one h. Estimate the cost and completion date of the system, and indicate whu will pay the cost of installation, maintenance and snow removal.[__--___-__.._______________--__--__-----_-----W___.----_-_-__________---- comment 1mf11]: naminoPmrJete. .foi.providing ac=ato casts 3. Effects on Local Services b. Describe the additional or expanded public services and facilities that would be demanded of local government or special districts to serve the subdivision. i. Describe additional costs which would result for services such as roads, bridges, law enforcement, parks and recreation, fire protection, water, sewer and solid waste systems, schools or busing, (including additional personnel, construction, and maintenance costs). ii. Who would bear these costs (e.g. all taxpayers within the jurisdiction, people within special taxing districts, or users of a service)? iii. Can the service providers meet the additional costs given legal or other constraints (e.g. statutory ceilings on mill levies or bonded indebtedness)? iv. Describe off -site costs or costs to other jurisdictions may be incurred (e.g. development of water sources or construction of a sewage treatment plant; costs borne by a nearby municipality). Cammen1danal Z] __---------------------------------.____-------------------._________--_-__________--------______ c. Describe how the subdivision allows existingservices, through expanded use, too operate more g P P eOas.te a�aayss laaflt been efficiently or makes the installation or improvement of services feasible (e.g. allow installation of a :comma.3 _ _ _ . . _ _ _ central water system, or upgrading a country road). . complete Tcsp0a0.#nd'analysisused has not.been p�o�a�a PART III - COMMUNITY IMPACT REPORT Provide a community impact report containing a statement of estimated number of people coming into the area as a result of the subdivision, anticipated needs of the proposed subdivision for public facilities and services, the increased capital and operating cost to each affected unit of local government. Provide responses to each of the following questions and provide reference materials as required -- cgmment:'[W14): Complete ______________________ . Roads and Maintenance ins; akaalysa not been iroNat a. Estimate how traffic the subdivision when full occu icd will cnerate on existing streets much daily tra y p g g and arterials. b. Describe the capability of existing and proposed roads to safely accommodate this increased traffic. c. Describe increased maintenance problems and increased cost due to this increase in volume. d . Describe proposed new public or private access roads including: i. Measures for disposing of storm runoff from streets and roads. ii. Type of road surface and provisions to be made for dust. iii. Facilities for streams or drainage crossing (e.g. culverts, bridges). iv. Seeding of disturbed areas. Additional Rules to be complied with: (§ 76-3-622(1 ), MCA; emphasis added.) The referenced statute, § 76-4-104, MCA, requires the DEQ to promulgate regulations, and the subdivider to make disclosures, that are in accordance with the following: (b) adequate evidence that a water supply that is sufficient in terms of quality, quantity, and dependability will be available to ensure an adequate supply of water for the type of subdivision proposed; (c) evidence concerning the potability of the proposed water supply for the subdivision; (d) adequate evidence that a sewage disposal facility is sufficient in terms of capacity and dependability; • when a developer proposes to hook up to an existing public wastewater treatment system, then the developer must provide evidence that the system is approved by DEQ, that the managing entity has authorized the connections, and "the system has adequate capacity to meet the needs of the subdivision." (See DEQ ARM 17.36.32$(2)(b)(i); see also DEQ Subdivision Review Joint Application Form C wastewater Treatment, C.3.a.(3)}. � ....... t...�. ,r,,,r r+••�. ...rye •� f _^ _ - M1 `....�w . - . (��ic r �� I • �1 F4 l .20.143.6roa _ r R7► �� ' I ` Tra f I J 5. � .�� r 1 i'S?; •' l' • .rJV : /} r _ - � fJ � - ' � �F - rr' �+ _ J �1 -.' ��F y r � ! � 0.044 A"v! r �.ti • rf �— ff Y Z11 IN E� •�: _ _ r,E�- �rr� �" r:i•'13.�:' tF f i } • / �� S�"11•r� - � f, fr A. .=]i •A.,n:e� � ;# '�� I�' it _ � � • �` c �' �4�. �"",�.•\.. "••�' .-"I_r r! 'r � .. � 4 a- , r, '� ,_: "�� : � y�� W r _ ..-._ .._� �.-'•, mil'^""_ �^^��t`"• ......?",,.,,�,."....�'-..,.��..�.r..,'y -._ _ !"'"-_""l��`�•} 7""•-.,.,�.•••�r-.....a ..,.�._ � r. t . � � • � : �� 1 � \ �.., ' f • rr : r � � � M1 �_•.- f )j r";.: _•---, + .._ � � �� ' �4 _i y t 1 1 ► -••-. � i � `� r� 4; � � � •� , l .•1 ; 1 1 t �4... / r � i Ra 1 ' 3 3 r ! r - L\r �• Z • � � � E. I � � L E � �� •t /v' � � . ; 'S � � � •�-^-' f i rr + `:, L, `•� � r i L• •S`L E`•.'i j iE� s 'r` • tr ."�.• ^•.••,.Y F ad g .� � � �-tits r � - i:`r ,' •+ii *:LV Jf'/ °•: h'.; •�,1, 1 } �4 �l. ti rr r r .w vw+.,F r .�-\ ' 't rr •l f E•s '[1i4 �• Ei �• S, ` I , ` I • � r 1 a I i • r' - t t i ,� ,Jr - ? •i — �% r• f Contour Interval = 1 foot Figure 7. Topographic survey of proposed /Project s to f. 10 IWO r i � r rr�S ertd R � r Ili ��r...J`war•w. r.,wrr.rnrwr � - t Wolford Response to Questions http :Ilwwvw. c ity . am e s . i a. us/hou s in.gweb/RequestChangeLUPP/ W o 1 fo r .. . Responses ,ns directed Development, applicant at tt, i Commission given below c Development, Would the developer consider permeable paving? permeablelpervious pavement. Will you pay for a buffer grove of trees to catch litter and reduce noise in Ketelsen Marsh? At the appropriate time in the planning process (most likely during the zoning process when we develop the landscaping plan in conjunction with the City's requirements) we will gladly work with Steve Lekwa and the Story County Conservation Board and others to develop a mutually agreeable buffer plan. Will your company pay for the eventually anticipated cloverleaf and increased for 13th and 1-35 interchange? Wolford Development, Inc will pay for the road improvements required by the additional traffic generated by our proposed developments. However, it is important to understand that, according to the Site Traffic Impact Report which has been reviewed and approved by City Stab, Story County, IDOT and FICA, loop ramps in both the Northwest and Southeast quadrants of the 13th Street and 1-351ntersection are only required When the projected year 2025 is analyzed. The year 2025 assumes: (1) increased background traffic, (2) full build out of both the mall and power center, including all available outparcels, (3) full build out of the 13th Street industrial Property. What kind of jobs will be available at a new mall? Hove touch do the jobs pay per hour? Available jobs will range from entry level jobs to management positions. According to the National Retail Federation, in 2001 the average hourly wage of a non -supervisory retail employee was $9. 77, the average compensation of a Department Manager of a retail store was $45, 000, the average compensation of a Store Manager was $60, 000 and the average salary of a Department Store Managers start at $80, 000 and exceeds $700, 000. Has the dramatic increase in shopping by Internet been factored into discussions of the need for new retail establishment? Over the last couple of years Business in all industries, retail included, has been soft. Fortunately, the business climate is improving and this year's Holiday Season's sales in retail stores across the country are doing quite well. According to the National Retail Federation, e-commerce will supplement, not replace, traditional "brick and mortar" stores. Is it true that Wal-Mart has turned down your site? It is our understanding that Wal-Mart wants a Super Center store in the Ames market but they have not made a location decision. What anchor stores does Mr. Wolford have signed to build at the proposal in question? Anchor Store deals are subject to Confidentiality Agreements because they want to control their public announcements. What we can say is that we are working with a national department store that is not currently in the market, and a couple of the existing national anchor stores at North Grand Mall who feet they need to expand their operations with single -level stores in order Wolford Response to Questions http•://www.city.ames.ia.us/housingweb/RequestChangeLUPP/Wolfor.. to stay competitive in the market. They do not feel this opportunity is available at North Grand Mall. Will Mr. Wolford build, own and manage the mail or build and sell it? Wolford Development, Inc. will build: own and manage the proposed projects_ Is it true that you've offered Younkers $5 million as an incentive to break their lease with North Grand Mall and move to your site? IIIG How can Mr. Wolford justify taking prime agricultural land out of production, destroying not only Ketelsen Marsh but also other wildlife habitat (brushy areas and fence rows) and business away from downtown Ames and the North Grand Mail? Wolford Development's initial review of the Ames market included it's review of the City of Arnes' Land Use Policy Plan and the Commercial Land Needs Assessment Report which show the need for additional Regional Commercial Property east of 1-35 to satisfy the City's growth plan. As to Ketelsen Marsh, our Phase I Environmental Site Assessment concludes that the only conflict with Ketelsen Marsh is the potential restriction on public hunting since Iowa law prohibits hunting within 200 yawls of a structure. We believe that this impact can be mitigated through buffering and as stated above we are willing to work with the Story county Conservation Board to arrive at a mutually agreeable buffering plan. As to the proposed mall's effect on downtown business, our market study concludes that since Downtown Ames was already impacted by the development of North Grand Mall, the proposed projects will have minimal impact on Downtown Armes. As to our project's effect on North Grand Mall, it is clear that our development will have a dramatic effect, Although we have no say in the future direction of North Grand Mall, it is apparent that it will have to be re -tooled. Assuming Mr. Wolford is a wealthy man, can he tell the public why he needs the money he would get from this proposed mall? our proposal is not about "Mr. Wolford's need for money. " It is about giving at least two of the current anchor stores at North Grand Mall an opportunity to expand with single -level stores, and properly size their stores to serve the market for the next forty to fifty years. Also, it is about giving other national retail stores interested in locating in the market the opportunity to do so. You can reach us at: City of Ames, Room 214, 515 Clark Avenue, P.O. Box 811, Ames, lA 50010 Monday - Friday 8:00 a.m. to 5:00 p.m. 515-239-5400 515-239-5404 - FAX 515-239-5133 - TDD Back to the Planning & Housinq Horne l3a e City Government I Living. In Ames I City Employment I Departments Doing Business I Facilities I News and Information I Home More Community Information www.cityofames.org Privacv Policy Disclaimer @Copyright, 1996-2002, City of Ames, Iowa P7PIAA0 VA. AC A *A W _ 2/2/2007 - Wofford Development Lines Up Anchor Tenants For Maio... http://www.chaftmoogan.com/articles/article—I00952.asp . Mai n` u C,ht:ionoogonl. c0m _ t~ttar�sue SAVE TIME, AND YOUR SANITY, - r f__.; 717"'.- # ■ t r■t r sFocus tr January 7, 2008 u s n e s s search _ Wolford Development Lines Up Anchor Tenants For Major Center In. Arizona Leading Chain Tenants 9000 & posted February 2, 2007 Lom'A RT.R 1D_:.G Eu potential retail Efoodservice tenants & Chattanooga -based Wolford Development, Inc. has announced the anchors Cha-ttanw) g S to ho ny &.�' era 37,500 key personnel. www.teadingChainTenants.com for its new lifestyle development scheduled to open March 5, 2008, in Arizona. Dubbed The Shops at Lake Havasu, Wolford Development, Inc. will bring Retail Developers approximately 740,000 square feet of fashion, food and fun to its 105-acre :: -, i Customer Analytics site on the north end of town, it was stated. Enables Better Retail "The i Merchandising Decisions Officials said, Shops at Lake Havasu will offer customers a unique Sond teMS of BuxtonCo.com shopping environment. The shopping complex will have a warm, inviting y open-air environment with landscaping and a variety of eye-catching oil 512es architectural elements. In addition to the lifestyle center, the 105-acre site will provide seven outparcels for development by individual businesses as PIP Bu LED Retail Si ns - well as an 18 acre site for future development. by Sur,�N 24-Hour Advertising ertsing for � New to the market will be a Dillard's fashion department store measuring B�sire Customers. Communicate Easily with LED Signs. approximately 100,000 square feet.www.AdsLED.com a .a�acnt�x1 RtJ Emote i William Dillard II chairman of the hoard and chief executive officer of LAtvc Mory*rAoue j Dillard"s, said, "We are excited to be entering the Lake Havasu market with a .. ..... Sa .. .»:.. ..:.::..... ... .. .............. ....... .. ..... ... .. .. E new store as part of this development. Lake Havasu gives us an excellent Detail Multichannel F opportunity to expand our presence in the state of Arizona and offer area t, s' i Learn fast way to access, residents more quality shopping choices. Through past experience, we have integrate & utilize confidence in Bucky Wolford and know this will be a first class center and a important enterprise data E real asset to the entire community and surrounding trade area. �� r '�' ! FirsUapp retail. oc¢inc.com f tChurch Dillard's Inc. ranks among the nation's largest fashion apparel and home Downtown Chatt"000f ' furnishings retailers with annual revenues exceeding $7.7 billion. 42'-z65`T µn Arizona land for sale Officials said, "The tone of the Lake Havasu store, both in building design Commercial nd.inp up to 5 Miion Easy financing. Everyone I , and merchandise assortment, will reflect Dillard"s renewed focus on upscale 10% t arArn.- % ire some, cases quallfiesl Arizona land at 11 and contemporaryfashion. Customers will especially enjoy Dillard's latest Davidjones 23)-..4.00-9797 affordable prices. advances in store design and shopping convenience in the shoes, intimate 9 PP 9 Weer � pec';a 5 ►�+�""au ionAQes,com apparel and accessories areas.Bald `.;.r. a3 14"ded Vi"ge Town Ca'... I Based out of -Little Rock, Ark., Dillard s operates 330 stores in 29 states. Dillard's currently has 21 stores in the Arizona/Las Vegas/California area. i5reaxi L 4" V =p . - Tennessee AmerIcan water , Also joining the project will be J.C. Penney, which is relocating to the Shops at Lake Havasu and tripling the size of its current store in the market. The-E`,Y;fj�i P 9 new store, at more than 102,000 square feet, will incorporate J.C. Penney's Professional Service latest format and design features to create an easy and exciting place for And results customers to experience the store's outstanding selection of high -quality, With Jar Robinson fashion -right merchandise at smart prices. Clicl: Here J,C. Penney Company, Inc. is one of the nation's largest department store, Corrections officers and e-commerce retailers with more than 1,000 department stores Needed throughout the U.S. and Puerto Rico. As part of its strategic growth plan, he diEff�lo Donna nnaHunThe JCPenney plans to open 50 stores per year from 2007 through 2009, most in In Nights the single -level, off -mall format. There are currently 22 JCPenney stores in Dec. 0-1 Arizona. Crossroads Cafe "Our plan to open a larger store in Lake Havasu City indicates our strong City Bids, Pm -chases commitment to this market, as well as customers' outstanding response to Click Here our merchandise and services," said Paul Freddo, J.C. Penney vice president and director of real estate. "Wolford Development is creating a prime shopping destination for the area at The Shvps at Lake Havasu that. will 21212067--WolTord Development Lines Up Anchor Tenants For Majo... http://www.chattanoogan.com/articles/article—I 00 9 5 2. as p provide an excellent platform for growing our presence in the community." The final anchor position will be filled by a new 201,821 square foot Wal-Mart Supercenter, Officials said, "Customers at the new Supercenter will notice the latest aesthetic features such as wider aisles, stained concrete flooring throughout most of the store, faux wood flooring in the apparel areas, neutral colors and skylights as well as the expanded merchandise selection. As a one -stop shopping experience, the Supercenter offers 3E general merchandise departments as well as a full line of groceries including a bakery, a delicatessen, a frozen food section and meat, dairy and fresh produce sections." Bucky Wolford, president and CEO, said, "The Lake Havasu -- Kingman market is extremely under served and we're pleased to finally be bringing this project to this retail parched market. There is not another project of this magnitude and with this type of regional drawing power within 150 miles. The commitment of our anchors alone proves out the pent --up demand and untapped retail sales which are now migrating outside the area," When completed, The Shops at Lake Havasu will contain over 70 retailers and restaurants in a "Main Street" town -center setting which will redefine the shopping pattern of Arizona's "west coast." Roughly a 2 1I2-3whour drive between Las Vegas and Phoenix, The Shops at Lake Havasu will be the only regional center in the area. Wolford Development, Inc. is a privately owned development company headquartered in Chattanooga. Th,e company was founded in March of 1999 by James L. "Bucky" Wolford. Since its inception, Wolford Development, Inc. has developed, opened and managed in excess of 1,200,000 square feet of retail projects in Chattanooga, Cleveland, Tn.,; and Gadsden, Ala., representing a total development cost of $116,000,000. New projects currently in the development pipeline in addition to Lake Havasu, Ariz., are Ames, Iowa, Jackson, Tn., and Kalispell, Mont. These projects encompass 3 million square feet representing over $350 million in construction cost. Wolford's team for the Lake Havasu project consist of Morgan Construction of Chattanooga as the general contractor, Architecture+ of Monroe, La., as the architect and Miller -McCoy of Chattanooga as the civil engineer. For leasing information, contact either Patrick Kellner or Jeff Davenport at Wolford Development corporate offices in Chattanooga at (423) 874-0811. Email this to a friend ech banking with 6 d-fash oned service! A. � � :.£ R Il. Executive Summary } For full report, go to. h,ftp://www.c'Itvofames.orv,,/Housin,a,Web/Plannint/ Commercial-Land.htm in For full report, go to. h,ftp://www.c'Itvofames.orv,,/Housin,a,Web/Plannint/ Commercial-Land.htm in A. Identify the Acres Projected to be Absorbed by the Year 2030 Using the Market/sales to Acres Methodology(sss-acres Projecting commercial land needs from land absorption trends provides a good estimation of future commercial growth patterns. However using land absorption methodology alone does not completely explain the all of the factors contributing to commercial land development trends. Data associated with commercial sales trends needs to be understood and is not readily apparent when only using a land absorption model. Therefore, another land prediction model that is more complete in its explanation of commercial sales patterns compared to land absorption patterns is needed to explain future commercial land resource needs. When past retail sales trends is compared to past land absorption trends, a strong correlation between the two is revealed. This correlation provides another method to predict future land needs. The amount of commercial land resources necessary to meet future community needs is predicted by a projection of the average change in commercial retail sales per year. Once future sales are estimated, the relationship between sales trends and acres absorption is used to explain future commercial land needs. This method, the "market/sales to acres methodology," incorporates market data information into the future land resource need estimate. When commercial land needs are identified using the market/sales to acres methodology, it is estimated that approximately 586 acres of commercial land will be absorbed in the City of Ames over the life of the Land Use Policy Plan or until the year 2030. This equates to annual commercial land absorption of approximately 20-acres per year. In other words, approximately 20-acres of land per year will be developed (absorbed) that is currently commercially zoned and vacant, planned and vacant, or land that should be redeveloped or rezoned. B. Existing Supply of Commercially Zoned, Planned, or Re - developable Acres within the Existing City limits or within the Planning Area of the City of Ames. City Staff identified commercial land resources that are currently within the City of Ames and are zoned commercially and vacant. These land resources are available for commercial development at this time. In addition staff identified vacant acres that are not zoned today but are planned for commercial development both in the City currently, and within the surrounding planning area. Lastly, staff has analyzed existing developed acres in commercially designated areas and identified Linderutilized commercial properties that represent a redevelopment potential. The analytical approach taken to estimate the commercial land inventory was very conservative in calculation of vacant acres. where questions arose to whether land should be considered vacant or not, or re -developable or not, the land in question was not considered as a viable commercial land inventory option. The following table represents a compilation of the acres that are available to meet the commercial land needs of the city. Table II-1. Summary of Existing Commercial Land Resource Supply (Vacant Acres) Vacant Land Inside the City Planned of Ames and Vacant Zoned, Acres Acres of Re - including land % Inside and °Ia development Total zoned Outside Potential commercially the city of since the year Ames 2000 347 43% 402* 50%j 55 7% 804 * This number will not coincide with the vacant acres calculation found in Land Use Policy Plan analysis in this report. To calculate the correct amount of inventory, it is important not to double count acres that are .-Woned and acres that are plannea! This table avoids double counting by placing ~oned commercial acres in one category, which may include planned acres, and placing non-. oned planned commercial acres in another category. C. Vacant Land Inside the City of Ames and Zoned, Including Land Zoned Commercially Since the Year 2000 (347-acres) As of year 2000, there are approximately 292--acres of land zoned for commercial uses that are vacant. This number discounts land that is physically prohibitive to develop and/or in the floodway. (See explanation on page 29 of this report) Since the inception of this commercial land inventory study, the City of Ames has rezoned approximately 54- acres of commercial land resources in areas designated as environmentally sensitive areas. Therefore, the amount of developable vacant land currently zoned for commercial land uses amounts to about a 17 year supply of commercial land resources (347-acres divided by 20-acres per year approximates 17 years). (See flap IV-]) D. Planned Vacant Acres Inside and Outside the City of Ames (402-ages) The city's Land Use Policy Plan Map targets land resources inside and outside of the city's corporate limits for commercial expansion. There are planned vacant commercial land resources inside the City's corporate limits. Approximately 5 o-acres of planned and vacant land, not yet zoned for commercial development, currently exists within the corporate limits of the City of Ames. 12 Outside of corporate limits, in the Village/Suburban Residential designated areas, there is a need for 60-acres to be developed as Neighborhood Commercial land uses. (fee methodology explanation on page 79 of this report.) Therefore, 60-acres out of the 2,352 vacant acres available in the Village/Suburban Residential planned areas needs to be set aside for commercial development. The future land use map outlines an additional 40- acres of vacant land available in the Community Commercial Lode location in the secondary growth priority area. Additionally 252-acres of vacant land available for proposed for future Regional Commercial land uses. The total number of vacant acres in planned areas outside of existing corporate limits is approximately 3 52-acres. 352 vacant planned acres outside of corporate limits plus 50 vacant planned acres within City limits totals 402 acres. E. Identify the Amount of Land Resources Available for Redevelopment Opportunities (55-acres) Within the current commercial zoning designations, there is approximately 55 acres of land available for commercial redevelopment. This number -includes non -conforming uses, vacant structures, or deteriorated properties. F. Identify Other Land Use Opportunities., i.e. RH and G1. Reiterate the Conservative Nature of the Analysis. The computation of available commercial acres used in this study does not take into account the commercial land resource that could be available in areas zoned General Industrial (GI) or Residential High Density (RH). General Industrial zoned land allows for an extensive amount of commercial development opportunity. Likewise, Residential High Density zoning allows for some commercial development on the first floor of multi- family structures. Therefore, areas zoned GI and RH represent commercial land resource opportunity beyond the estimated 803-acres of vacant commercial land accounted for in this study. 13 Table H-2. Computation Table - Commercial Acres Needed Compared to Commercial Acres Su 1 . Comments: Acres Projection from Retail 58 Represents the projected to be needed Safes/Absorption methodology by the 2030 Represents vacant land that is + Vacant Zoned Acres as of 2000 292 currently zoned in the City of Ames (See mac IV-]) (293) Plane Acres for Represents the acres that should be set Neighborhood/Convenience Commercial in from the 2,352 vacant acres located in + Conventional Suburban Developments in 50 the planned area for Villa elSuburban p � Village/Suburban Residential Land Use Designations Residential growth. See map IV-]) (233) Represents the vacant area planned for + Planned Acres for a Community Commercial 40 Community Commercial Node Node development in the Northwest Growth Priority Area. (See map IV-]) (193) Represents the vacant area planned for Planned and Vacant Acres for Regional g5� Regional Commercial Growth in + Commercial Southeast Ames at the intersection of Highway 30 and Interstate 35. (See reap IU 59 + Zoned Acres that are re -developable 55 Represents existing acres in the City that can be redeveloped (See map IV-]) 1'13 Represents land that was added to the City of Ames after December 2000, Vacant ion Land Added to Commercial the cutoff date for the analysis + Zones in 64 included in this study. This is the land that was made available for commercial development in 2001. (See Map IV-]) 168 Represents various vacant land parcels Planned Vacant Acres that are not that are within the �i of Ames, that Village/Suburban Residential, Not Regional + Commercial, and currently not Vacant Zoned �� are not zoned commercially, but are Commercial Land planned for commercial development (See map IV-1 ) 218 Excess supply o f ccnimercially zoned andlor i2lanned acres 14 G. Policy implications... Based on the analysis represented in the Computation Table (see table above), the amount of commercial land that is currently zoned and vacant, planned and vacant, available as part of the development of the areas designated village/suburban residential, and considered as redevelopment opportunities, the supply of commercial land exceeds the projected commercial need. The total land inventory is approximately 803-acres, or approximately 218 acres above the projected 586-acres needed. Council could adopt a more conservative approach that would discount some or all of the commercial acres designated for Regional Commercial land uses. The vacant Regional Commercial land resources are estimated to be approximately 252-acres. If the City Council believes that none of these land resources should be counted in the commercial supply inventory of the City of Ames, then there would be a deficit of approximately 34-acres. However, subtracting the area designated in the Land Use Policy Plan as Regional Commercial should not be the basis by which more commercial land area is designated. Regional Commercial land resources, although not an immediate development option, will be needed to accommodate commercial expansion in the future. North Grand Mall met the commercial expansion need of the City of Ames in the early 1 970's, the Regional Commercial area planned along I-35 will accomplish the same need in the future. H. Distribution of Commercial Land Resource Supply The commercial land resource analysis concludes that the City of Ames does not have a need to add more commercial land supply (acres), as part of the City's 30-year land use policy. The City of Ames currently has about 75% of its commercial land resource needs 41 inside existing corporate limits and has an abundance of planned land resources outside of its corporate limits, representing roughly 37% (804-acres of supply divided by 586- acres needed) over its estimated need by the year 2030. From the standpoint the retail sales/acres absorption methodology used in this study, the City of Ames has an adequate inventory of commercial land. Although the City's Land Use Policy Plan accounts for the correct amount of commercial acres, there is an issue of whether or not the plan outlines suitable locations for neigh borhoodlconvenience commercial land uses. The Land Use Policy Plan states that neighborhood commercial land uses will be the result of village development in areas planned for Village/Suburban Residential land uses. Since commercial development may be part of a village residential development proposal, the location of neighborhood commercial uses is a function of grillage residential design. The plan allows for a sufficient amount of flexibility in village residential design to meet future IR neighborhood/convenience commercial needs. However, if areas develop primarily as conventional suburban residential developments, the plan is silent on the suitable locations for neighborhood scale commercial land resources. Neighborhood/convenience commercial development is typically not a function of conventional suburban residential design; there are no specific criteria in the Land Use Policy Plan to locate neighborhood/convenience commercial land uses in areas zoned for emerging suburban residential development. Conventional suburban residential developments are very different from traditional village residential developments. whereas villages are compact, dense, and integrate pedestrian scale and automotive commercial oriented activities into their residential design, conventional suburban residential development require more land resources, are heavily auto dependent, draw a clear distinction between commercial and residential uses, and have a very widespread population density. The more land consuming and auto dependant nature of conventional suburban residential design thus requires neighborhood/convenience commercial land resources to be planned in locations that minimize trips, maximize convenience, and provide for commercial market sustainability. According to the Urban Land Institute, American Planning Association, and research submitted by RM Plan Group of Nashville Tennessee, neighborhood/convenience commercial land uses serving conventional suburban residential developments should be located: 5 Adjacent to or within the center of the highest possible concentrations of population; a On major or minor thoroughfares (because vehicular movement is critical); M Encompass and area of approximately I mile in radius for vehicle travel convenience; a In a cluster of approximately 2-5 acres in scale minimum, and to -acres at the most. Providing too much commercial opportunity in one area could saturate the commercial activities in that area, thus hampering commercial vitality and success. As such, new neighborhood/convenience commercial should not be added when the following circumstances exist: Where there already is an existing neighborhoodlconvenience commercial center that may not absolutely adhere to the established criteria as stated above, and Where there are more intense commercial activities (Community Commercial Node, Highway Oriented Commercial, Regional Commercial, Downtown Service Center) that also serve as neighborhood/convenience commercial land uses within the location criteria as stated above. 16 1. Implications to the Adopted Land Use Policy Plan The analysis of commercial land resources within current city limits and within the planning area of the City of Ames has revealed that there is not a shortage of commercial land resources in general. However, there may ultimately be a shortage of neighborhood/convenience commercial land resources if future development within the identified growth areas does not follow the Village Residential land use alternative. It is important to retrace the evolution of the Land Use Policy Plan that was adopted by City Council in August of 1997. Initially, the original draft of the Land Use Policy Plan relied exclusively on the Village Residential land use alternative for all new development within the identified growth areas of the City. This included the creation of neighborhood/convenience scale commercial to support the residents of newly developed villages. At the point when the Land Use Policy Plan was ready for final approval by City Council, there was not policy support for the Village Residential land use option exclusively, and therefore an alternative land use option was included in the Plan. This alternative is now referred to as "Suburban Residential". The suburban residential land use alternative does not include the creation of neighborhood/convenience scale commercial centers. Since this amendment to the plan did not proposed neighborhood/convenience commercial centers as part of Suburban Residential alternative, staff believes it is in the best interest of the city to determine the location of future neighborhood/convenience commercial centers in our growth areas. The criteria that is commonly used to locate neighborhood/convenience scale commercial land uses, where neighborhood/convenience commercial land uses follow the conventional suburban residential land use model, includes: N A population cluster threshold of 2,000 to 3,000 people a 2-acres at the minimum and 10-acres at the maximum of land area Frontage on a street that is a collector class or greater Within a vehicular travel distance of 1 mile at the minimums and 2 miles at the maximum (Source: Urban Lard .institute, American Planning Association, _RM Plan group.) This criterion establishes the ideal size, general demographics, and geographic location for conventional neigh borhoodlconvenience centers. The map titled "Map 1I-1. Summary Map, " outlines the most suitable locations for neighborhood/convenience land uses serving conventional suburban residential development in the City's priority growth areas. This map outlines where neighborhood/convenience centers should be located if 17 the preferred growth areas of the City develop as conventional suburban residential developments. Since the LUPP allows for the property owner to select the village Residential or Suburban Residential land use alternative, either form of land use will create the needed neighborhood/convenience commercial center if this commercial development is guided by established or adopted planning policy (i.e. properly located, sized, clustered, and integrated). It is staff s recommendation that the following policies be incorporated into the Land use Policy Plan of the City of Ames: ■ if a village with a commercial center is approved, or is planned to occur in an area where a neighborhood commercial center is planned, then the commercial land uses in the village should serve as the neighborhood/convenience commercial center for the area; and no other commercial center would be allowed in the area criteria as established on page 17 of this report. • If a village does not occur, or is not planned within an the area where a neighborhood commercial center is identified on the future land use map in the Land Use Policy Plan of the City of Ames, then the City should be prepared to zone an area which would result in the development of a neighborhood/convenience commercial center. • Higher development standards than what currently exists in the Neighborhood Commercial Zone needs to be established ensure that the land use relationship between the center and the adjacent residential land uses will be compatible. These higher development standards are needed whether the adjacent land uses are developed as village residential or suburban residential. These standards might include such items as: building placement, signage, lighting, landscaping, screening, and building materials. • Any proposed neighborhood/convenience commercial center, suburban or traditional in design, should not supplement or add to Community Commercial Nodes, other established commercial land use designations, or existing neighborhood/convenience a commercial uses. 18 Map II-1 — Summary Map 19 When recorded return to preparer Prepared by: Willimn D. Bartine, The Financial Center, 666 Walnut Mte 2000, Des Moines, 14 50309-3989, S 1S-243-7100 AN AGREEMENT PERTALVING TO THE REZONING AND DEVELOPMENT OF LAND IN THE CITY OF AMES THIS AGREEMENT, made and entered into this $�``� day of A/M4WA64,," 2005, by and between the CM OF AMES, IOWA, a municipal corporation (hereinafter called "City") established pursuant to the Iowa Code and acting under the authorization of Yoga Code Chapter 414 (2005); and WOLFORD DEVELOPMENT OPTIONS, L.L.C., a Nevada limited liability company, its successors -and assigns (all hereinafter collectively called "Developer"). WITNESSETH THAT, WHEREAS, the parties hereto desire the improvement and development of an area legally described as set out on Appendix A, hereinafter called the "Site;" WI EREAS, Developer has petitioned the City requesting that zoning regulations of the City be changed to rezone the Site from a zoning district classification of Agricultural ("A") and Planned Industrial ("PI"), as applicable, to the Planned Regional Commercial ("PRC") zoning district, WE EREAS, the Parties agree that said zoning change should occur subject to imposition on Developer of conditions that are in addition to existing regulations of the City, all as provided for by Iowa Code § 414.5 (2005); NOWTHEREFORE, the parties hereto have agreed and do agree as follows ARTICLE 1. INTENT AND PURPOSE 1.1 Inten It is the intent of this Agreement to provide for the development of a planned regional commercial center that will serve not only the City, but also the surrounding market area. Such commercial center is characterized by a lifestyle center north of East 13th Street and a power center south of East 13th Street, bath of which shah include anchor stores, and free-standing retail, diming, and entertainment establishments served by common parking areas. The provisions of this Agreement, coupled with the ordinances of the City of Ames, Iowa, will facilitate development in a planned, orderly fashion, so as to protect public health, safety, and general welfare, in accordance with the Land Use Policy Plan of the City. 1.2 kumose. Therefore, it 'is the purpose of this Agreement to: A. Document, record, and give notice of a certain plan of development, and the public and private measures and undertakings essential to the implementation of that plan of development, for the Site. . B. Provide remedies to the City in the event the said plan of development is not adhered to or achieved by the Developer. C. Provide parameters for requests for releases of the Developer in the event project completion is not feasible, and upon completion of the planned improvements. This Agreement does not create or vest in any person or organization other than the City any rights or cause of action with respect to any performance, obligation, plan, schedule or undertaking stated in this Agreement with respect to the Developer or the Project. This Agreement does not prevent the City from amending, modifying, or releasing the Developer from some or all of the provisions of this Agreement. No person shall have any cause of action or recourse against the City or Developer by reason of any such amendment, modification., or release. ARTICLE 2, DEFENITIONS 2A Rdinitionse In addition to other definitions set forth in this Agreement, all capitalized terms used and not otherwise defined herein shall have the following meanings unless a different meaning clearly appears from the content; A. &reemepl means this Agreement Pertaining to Rezoning and Development of land in the City of Ames and all appendices hereto, as the same from tune to time may be modified, amended, or supplanted. B . means the City of Ames, Iowa, or any successor to its functions. C.nnce to i e Plan shalt mean the graphic depiction of Developer's conceptual development plan for the Site as shown in Appendix E attached hereto and incorporated herein by this reference. D. ]' aelmex means wolford Development options, L.L.C., a Nevada limited liability company, and its lessees, licensees, successors and assigns. hereto. East Pp ritl Site shall mean that area of land described on Appendix ID IN F. A shall mean the Federal Highway Administration, an agency of the United States of America. G. Gross Building Area GBA shalt mean the area of a building measured to the exterior face of the building line without deductions. H. Iowa Code shall mean the Iowa Code (2005). I. 11DOT shall mean the Iowa Department of Transportation, an instrumentality of the State of Iowa. J. Ma"or Anchor Store shall mean a Retail Store containing not less than 80,000 square feet GBA. K. Minor Anchor St re shall mean a Detail More containing more than 10,000 square feet GBA and less than 80,000 square feet GBA, and also includes a multi -screen movie theatre. L, North Site shall mean that area of land described by Appendix B attached hereto. M. Out areei shall mean a separately platted tract of land within the Site that will legally support free-standing buildings and designated as such on Appendix E. N. Pro'ect shall mean a lifestyle shopping center and related improvements to be constructed on the Forth Site and a power center and related improvements as defined in this .Agreement to be constructed on the South Site. 0. Rezon xn Ordinance shall mean an ordinance subjecting the Site to the Planned Regional Commercial District, and North .fast Gateway Overlay District zoning regulations of the City. P. A shall mean the form of reciprocal easement agreement entered into by and among the Developer and the owners of the Major Anchor Stores, as amended from time to time. The City acknowledges that it is possible that there may be separate REAs for the North Site and the South Site', therefore, the term " IZEA' shall refer to the reciprocal easement agreements, collectively. Q Rpljil&tore (which may be a Major Anchor Store, a Minor Anchor Store, or a Specialty Store) shall mean a ,store or similar commercial. concern incorporating one or more of -the operations typically found at a shopping center or a lifestyle center including without limitation the sale of goods and services, entertainment uses,. and office uses. R_ ite shall mean the land legally described in Appendirx. A attached hereto, The Site includes the North Site, the South Site, and the Lust Barilla Site. S. SpocjalIX More shall mean a Retail Store containing less than 10,000 square feet GBA. .1. T. South bite shall mean that area of land described by Appendix C attached hereto U. SITDAS shall mean Statewide Urban Design and Specifications, current edition. V. Traffic St der shall mean the October 2003 traffic study by HATS Consulting Group, Inc. entitled " 13 5 and E. 13th Development."' ARTICLE 3. ORDNANCE 3.1 Rezoning_ Ordinance. This Agreement shall be construed under Iowa Code § 414.5 as a written agreement by Developer for the imposition of conditions that are in addition to existing regulations, which Agreement has been entered into by Developer and City prior to the public hearing required under § 414.5. Developer understands and agrees that the execution of this Agreement is a condition precedent to any action by the City in holding a public hearing on the Rezoning Ordinance or taping any council action with respect to a rezoning ordinance. City and Developer agree that the conditions contained in this Agreement are reasonable and the result of extensive negotiations between the parties, and that the conditions and requirements =posed upon the parties herein are necessary to satisfy public needs that are directly caused by Developer's rezoning request. 3.2 Effective Date of Rezonin Ordinance, A. City and Developer agree that this Agreement is the binding obligation of Developer immediately upon Developer's execution and delivery of this Agreement to the City before the public hearing required under Iowa Code §414.5, subject to final passage of the Rezoning ordinance by the City Council in accordance with Iowa Code § 380.3. In addition to binding the Developer, the City desires that the effect of the Rezoning Ordinance shall be to make this Agreern.ent a covenant runn.iang with the land subjected to the Rezoning Ordinance at such time as Developer acquires fee simple title to that land, Because the Rezoning ordinance shall become effective under Iowa Code § 380,6 only when published in accordance with Iowa. Code § 3 80.7(3), it is agreed by Developer that the City Council may direct the City Clem to defer publication of the Rezoning Ordinance until Developer gives proof to the City by an opinion of title by an attorney at law who has examined the abstract of title of the land that is the subject of the Rezoning Ordinance that fee simple title to that land has been conveyed to Developer. At the time of such publication., the Agreement shall be a covenant valid and binding on the Developer and the land subjected to the Rezoning Ordinance. B. The City may enact the Rezonmg Ordinance for the Site. If the aforesaid oplMon of title with respect to the Site is not delivered to the City as aforesaid by the 1' day of December, 2007, the City may repeal or change the Rezoning Ordinance, and Developer shall have no cause of action against the City for or by reason of such repeal or change. 3.3 Effect of Agreement. Developer and City shall diligently and in good faith proceed to comply with all of the terms, conditions, and covenants contained in this Agreement, and all ordinances of the City of Ames, Iowa. The City shad have no obligation to issue any approvals with respect to any grading, excavation, construction, reoonstructior4 or remodeling on the North Site until the City Council determines that the Master Plan for the Site and Major Site Development Plan submitted by Developer for the North Site comply with the requirements of the ordinances and policies of the City of Ames and this Agreement. The City shall have no obligation to issue any approvals with respect to any grading, excavation, construction, reconstruction, or remodeling on the South Site until the City Council determines that the Master Plan for the Site and Major Site Development Plan submitted by the Developer for the South Site comply with the requirements of the ordinances and policies of the City of Ames and this Agreement. Consistent with Section 4 A hereof, the Master Plan and the Major Site Development Plan sha11 show the Bast Baarilla Site as property for future development. 3.4 CencmtualSite P The Conceptual Site Plan shall be supplanted by the Master flan when approved by the City pursuant to the O-GNE ordinance, which in turn sh&l be supplanted by the Major Site Development Plan when approved by the City foi` the respective portions of the Site. ARTICLE 4, IWRO EMM(NTS To BE CONSTRUCTED 41 Dtmw�evelor)er's -Obligation to nnstruct The Developer agrees to construct a regional commercial lifestyle center on the North Site, and may construct a regional commercial power center on the South Site, all in a manner that is consistent with the ordinances and polices of the City, and this Agreement. Developer shall also construct certain on -site and off` -site infrastructure improvements in support of the Pro j eon all as required by Article 7 of this Agreement. 4.2 rth Site r mr ents. Developer agrees to oon.stru.ct or cause to be constructed a minimum of four hundred ninety-eight thousand (498,000) square feet GBA of buildings and other regional commercial improvements on the North Site, exclusive of outparcels, as follows A. Two (2) Major Anchor Stores totaling at least one hundred sixty thousand (160,,000) square feet GB A; 1B. A combination of Major Anchor Stores, Minor Anchor Stores, and Specialty Stores totaling at least four hundred ninety-eight thousand (498,000) square feet BA; and C. Subject to the requirements of Sections 4.2.A and 4.2,B, above; -5- 1. At least one hundred sixty thousand (160,000) square feet GBA of such space must be Retail Stores that did not have a store open for business in the City as of December 3 1, 2004; and 2. At least eighty thousand (80,000) square feet GBA of the above. stated 160,000 square feet GBA shall be Minor Anchor Stores. 4.3 South Site ImDrovements. Developer agrees to construct or cause to be constructed, exercisable at Developer's option, a minimum of three hundred thousand (300,000) square feet GBA of buildings and other regional commercial improvements on the South Site, exclusive of Outpaarcels, that shall include at least one (1) Major Anchor Store of not less than eighty thousand (80,000) square feet GBA. The balance of the said three hundred thousand (300,,000) square feet GBA of buildings shall be comprised of either Major Anchor Stores, Minor Anchor Stores, and/or Specialty Stores, 4.4 No East Barifia. Site Im rovements Re aired. Developer and City agree that Developer shall not be required to construct any regional commercial improvements on the East Barilla Site pursuant to the terms of this Agreement. Developer acknowledges that it shalt submit a Master Plan for the Bast Barilla Site as property for future development at the time that Developer seeks Master Plan approval for the North Site or the South Site, but that it may be required to submit a new Master flan for the East Barilla Site in the future if the development plans of Developer or its successors and assigns for the East Barilla Site vary materially from the approved Master Plan for the Fast Barilla Site. 4.5 Forge Ma,�eure.rr riure. With respect to the requirements of this Article 4, it is understood that delays could result from causes that may reasonably be presumed to be beyond the control of either party. Those causes are agreed to be: governmental war measures, wind storms, or labor strikes. Both parties shall, in good faith, use such effort as is reasonable under all the circumstances known at the time to mitigate delays caused by such events and make reasonable allowances of additional time for performance of the requirements of this Article when any event as aforesaid causes an unavoidable delay. Any party desiring an allowance of additional time for performance shall give written notice thereof to the other party within 20 days of the occurrence of the event that caused or will cause delay. ARTICLE 5. TDHNG AND BUELD-OUT of T19E PROJECT 5.1 5ingle-Phase.Constm ti n. Developer agrees to construct, or cause to be constructed, the improvements described in Sections 4.1, 4.2 and 4.3 for both the forth Site and, when applicable, the South Site, concurrently and not in phases. 501 .2 Drl} truction Period. A. N2 a h i , Developer agrees to complete the construction of the exteriors of buildings having not less than 498,000 square feet GBA as described in Section 41, and the site and off -site improvements relating thereto within three (3) years from the date of issuance to Developer or its assigns of the f rst building permit related to any portion of the North Site. B. Souk bite. Developer agrees, exercisable at its option, to complete the construction of the exteriors of buildings having not less than 300,000 square feet of GBA described in Section 4.3, and the site and off -site improvements relating thereto, within three (3) years from the date of issuance to Developer, or its assigns, of the first building permit related to any portion of the South Site, 5.3 Conditions Pre edent to Ci 's Obli a ion to Issue Permits a.nd AnDrovals ---- North Site. The City shall have no obligation to issue any permits or approvals in connection with the North Site until the Developer has satisfied each and every one of the following conditions precedent: A. -Submi i n of B id n e of -Egpily CaDital-andFinn ` Developer shall submit to the City evidence of equity capital and written commitments for funding and financing necessary for completion of the North Site. The commitments for financing shall be unconditional commitments to provide construction mortgage financing and shall provide for a loan -to --value ratio as determined. by Developer's lender, subject to customary conditions based on the Developer's performance of certain obligations prior to receiving funding including, but not limited to, pre -leasing requirements, covenants pertaining to title, provision of mechanic's lien waivers, inspection duties, approval of the construction budget of Developer's general contractor for the North Site, and other commercially reasonable due diligence requirements. The level of equity capital shall be deemed acceptable hereunder if provided in the amounts required by Developer's lenders. 13. mi i n of s. Developer shall submit to the City evidence of binding lease or sale commitments (which may be in the form of so. -called short. form leases or memoranda of sales contmets) from purchasers or tenants for the North Site, as follows; I. Developer shall submit to the City fully executed binding leue or sale transaction instruments as referenced in Section 5.3,B above with at least three hundred twenty-nine thousand (329,000) square feet GBA. of Major Anchors, Minor Anchors, and Specialty Shops, of which there must be: (a) at least two Mao o r Anchor Stores having an aggregate area of not less than one hundred sixty thousand (160,000) square feet GBA; (b) at least eighty thousand (80,000) square feet GBA of Retail Stores that did not have a store open for business in the City as of December 31, 2004; AND (c) not less than forty thousand (40,000) square feet GBA of Minor Anchor Stores. Z. Rental or purchase price information may be redacted 5.4 conditions Precedent_to v's h�ienflon to Issue Perm it,s_.aad_Annrova s — South Sit The City shall have no obligation to issue any perm11 its or approvals in connection with the South Site until the Developer has satisfied each and every one of the following conditions precedent : A. Submission MEvidence of F4u"ILCavital and Financm" . If Developer elects to construct power center improvements on the South Site, Developer shall submit to the City evidence of equity capital and written commitments for funding and financing necessary for completion of the South Site. The commitments for financing shall be unconditional commitments to provide construction mortgage financing and shall provide for a loan -to --value ratio as determined by Developer's lender, subject to customary conditions based on the Developer's performance of certain obligations prior to receiving funding i.n.cluding, but not limited to, pre -leasing requirements, covenants pertaining to title, provision of mechanic's lien waivers, inspection duties, approval of the construction budget of Developer's general contractor for the South Site, and other commercially reasonable due diligence requirements. The level of equity capital shall be deemed acceptable hereunder if provided in the amounts required by Developer's lenders. B. Sjybrniion PL.E'&nce f L . Developer shall submit to the City evidence of binding lease or sale commitments (which may be in the form of so-called short - form leases or memoranda of sales contracts) from purchasers or tenants for the South Site, as follows: 1. Developer shall submit to the City fully executed binding sale or lease transaction instmments as referenced in Section 5AB above with at least one Major Anchor Store and with additional Major Anchor Stores, Minor Anchor Stores, and Specialty Stores having an aggregate area of not less than fifty percent (50%) of the number determined by subtracting the actual total square feet GBA of such Major Anchor Store from three hundred thousand (300,000) square feet GBA required under Section 4.3 hereof 2. Rental or purchase price information may be redacted. 5.5 Procedur for R9Yivw...pf--1n-fotM1Cion1 Decisions by the City as to whether information submitted by the Developers satisfies the requirements of Sections 5.3.A, 5.335AA, and S.4.B above shall be made by the, City Attorney. 5.6 lssuanLq of P1rmftLand..AP Lroylls. A. The City shall not be obligated to issue any permits or approvals for any portion of the Site until Developer has provided fire protection service, sanitary sewer service, and interior all-weather construction road service to the property lines of the North Site and the South Site as required to support Developer's construction activities. There shall be no obligation to provide interior construction road service for the South Site until the Developer takes out building pests for the South Site. M8*a B. The City shall not be obligated to issue any permits or approvals with respect to the South Site until the City issues to the Developer, or its assigns, all permits and approvals that YAN support the construction of at least 329,000 square feet GBA in accordance with Section 5.3.B. i . ARTICLE 6, OTHER RESTRICTIONS 6.1 waiver of Tax Abatement. In consideration of the City's execution of this Agreement, Developer hereby covenants that it shall not seek or obtain any farm of tax abatement with respect to the Site, whether authorized under the Iowa Code or the Municipal Code of the City, and Developer, acting on its own behalf and for its successors and assigns, hereby irrevocably and permanently waives any right that it may have under law to seek or obtain any farm of tax abatement with respect to the Site. 6.2 General An x� cability of tither Laws and Ordinances. The parties acknowledge and agree that this Agreement is being executed in contemplation of the Conceptual Site Plan, but without further review or approval of specific plans for the Project. Therefore, the parties acknowledge and agree that it is not possible to anticipate all of the infrastructure requirements of Developer that may be required to properly develop the Site. Therefore, the parties agree that all work done by or on behalf of the Developer with respect to public streets, sidewalks, bike paths, building design and construction, and utilities (both on -site and off -site) shall be made in compliance with the Iowa Cade, the Ames MUM,cipa.l Code, SUDA.S, and all other. federal, state, and local laws and policies of general application, whether or not such requirements are specifically stated in this Agreement, ARTICLE 7, PUBLIC INFRASTRUCTURE 7,1 Compliance With Ordinanrs and other Rules of _General _Anv! 1 xon. All work performed pursuant to this Article 7 shall be done in good and workmanlike fashion, in compliance with SUDAS, City ordinances, rules, regulations, and standards that are generally applicable to all development prof Bets regulated by the City, and all such work shall be approved in advance by the City in accordance with standard practices of the City. 7.2 Rater, A. Eag UAL Stmol E= tp...57 A n Developer shall pay City a connection fee of Forty-one thousand Dollars ($41,000.00) for the right to wnnect to the existing City water main along Last 13th Street west of its intersection with 570th Avenue. B. 3 h Developer, at its cost shall, in conjunction with Developer's construction activities and prior to the issuance of any City permits 52 or approvals, extend a twelve -inch (12") water main from East 13th Strut north along 570th Avenue to the northern boundary of the North Site. . E ALt 1 31h., StLt Egst of 5 loth A An . While Developer shall be obligated at its cost to extend a twelve -inch (12") water main along East 13 th Street through and east of its intersection with 570th Avenue to the eastern boundary of the East Bar 11a Site, such obligation for the extension east of 570th Avenue shall arise only at such time that Developer files a final plat affecting the East Barilla Site, and Developer shall not be obligated to construct such water main until the City approves a final plat covering all or part of the Lust E arilla . Site. However, the Developer and the City a ee that if development by anyone occurs on land in the vicinity of the Site, and Fast of 570 Avenue, the Developer shall proceed immediately with the construction of the said water main upon receipt of written notice from the City to do so. D, Early I]eyelopment Eastof the _%Ig, The City and Developer acknowledge that one of the inducements to the City for enactment of the Rezoning Ordinance is the extension of a water main eastward from 570th Avenue to the eastern boundary of the Site, and north of Fast 13th Street along 570th Avenue to the northern boundary of the Site, for purposes of facilitating the economic development of the land lying east of the Site. If such development begins before December 1, 2007, the City may construct the aforesaid water main and the Developer shall reimburse the City for each progress payment and final payment made by the City for that work, within ten days of the City's notice to .Developer of a payment having been made. The Developer shall have no obligation to reimburse the City as aforesaid until such time as the Developer has acquired title to the Site. If the Developer acquires title to the Site while such work is in progress or after it is completed, the Developer shall then reimburse the City for all payments made by the City for such work not later than ten days following a request for payment by the City. 7.3 5Lar_v..SgVeran' A. ' i l Cbli ati n ofDev I r. In conjunction with Developer's construction activities and prior to the issuance of any City permits or approvals with respect to the North Site or the South Site, Developer at its sole cost will extend a trunk eighteen inch (18") sanitary sewer line within existing City right -of -gray along East 13th Street from Dayton Avenue to 570th Avenue; and, a twelve inch (12"') sanitary sewer line along 57e Avenue from Fast 13t` Street to the north line of the North Site. While Developer shall be obligated, at its cost, to extend. , a helve inch (12") sanitary sewer main along Bast 1391 Street through and east of its intersection with 57e Avenue to the eastern boundary of the Bast Barilla Site, such obligation for the extension east of 57& Avenue shall arise only at such time that Developer or its successors and assigns file a final plat affecting the Eag Barilla Site, and Developer shall not be obligated to construct such sanitary sewer east of 57CP Avenue until the City approves a final plat covering all or part of the East Barilla site. However, the Develo ier and City agree that if development occurs on the land n the vicinity of the Site, east of 57 Avenue, the Developer shall proceed immediately with the construction of the said sanitary sewer upon receipt of written notice from the City to do so. _10.. B. Devela is ObligaLion at Time of Subdivisi n. In connection with the final platting proceedings for any portion of the Site, Developer shall extend sewer mains to service each portion of the Site that is so platted. C, Earl D velo m nt E st of the Site The City and Developer acknowledge that one of the inducements to the City for enactment of the Rezoning ordinance is the extension of sanitary sewer service eastward from Dayton Avenue to the eastern boundary of the Site, and north of East 13th Street along 570th Avenue to the northern boundary of the Site, for purposes o facilitating the economic development of the land lying east of the Site. If such development begins before December 1, 2007, the City may construct the aforesaid sanitary sewer extensions and the Developer shall reimburse the City for each progress payment and final payment made by the City for that work, within ten days of the City's notice to Developer of a payment having been made. The Developer shall have no obligation to reimburse the City as aforesaid until such time as the Developer has acquired title to the Site. If the Developer acquires title to the Site while such work is in progress or after it is completed, the Developer shall then reimburse the City for all payments made by the City for such work not later than ten days following a request for payment by. the City. 7.4 Water, a n S&nitary. Sewer Extension Benefits Aoj ustment For the purpose of assessing the costs of water and sanitary sewer utility extensions on the basis of benefit to land areas, it is recognized that the City has the authority, and shall take all necessary action, to* establish water and sanitary sewer utility connection fee districts pursuant to the procedures provided for by Iowa Code § 384.38(3). The City shall, subject to its govemmental discretion, establish such districts with respect to the areas of land that are not a part of the Site, but which will be served and benehtted by the extension of water and sanitary sewer utilities pursuant to this Agreement; and the money collected by the City by virtue of such districts shall be disbursed to the Developer to such extent and in such amounts as the City shall determine to be an equitable adjustment for the benefit provided to the areas within such districts by virtue of the Developer's construction of water and sanitary sewer utility facilities as required by this Agreement. 7.5 5torm W ter Developer, at its cost, will construct all storm water "Best Management Practices" for water quality and quantity control facilities on the Site and off -site to the extent necessary to support the management of storm water drainage and disposal from the Site. Such construction shall be when and where it is deemed necessary by the City in consultation with the Developer to assure the proper function of the storm water management system for the Site, 7.6 Deetr* Developer, at its cost, shall install or relocate aH streetlights along public streets in the Site; and, along 13a` Street east from the east exit ramps for I-35; and, along 57e Avenue north of its intersection with I3'h Street; and, along 131' Street east of 57& Avenue to the eastern boundary of the East Baril1a Site at such time as when street improvements east of 57CP Avenue are required. 7.7 Bicycle/Pedestrian Paths, L Developer will extend a 10 foot wide hike path on the north side of East 13th Street from the eastern edge of the paving of the north entrance ramp for I-3 5 to the eastern edge of the North Site. 7.8 C -Ririe. Developer will contribute Fifty Thousand Dollars ($50,000) for the acquisition of a bus and will construct drop/off and turn -around facilities at bath the North Site and the South Site, if the South Site is developed, 7,9 Street . A. In terstate I-3 5 LEMU3th S rInter Developer, at its sole cost, shall complete all studies, designs, and construction of improvements required by the MOT and the FHwA with respect to the Interstate. I-3 5/East 13th Street interchange. B, East 13th Street and 57e Avenue Improve nts. . CiJy Rt�.s-pongibi . It is recognized that the existing two lanes of roadway on East 13th Street adjacent to the Site, extending from the easterly most paint of the I-35 interchange ramp to the east line of the Fast Barilla Site are deteriorated and in need of reconstruction; and, that the oasts of that reconstructing is the City's responsibility. It is also recognized that it will be more efficient for the Developer to do that reconstruction work in the contest of other improvements to East 13th Street for which Developer has agreed to be responsible. It has been determined by the estimates of the City's engineers that the cost for reconstruction of the said two lanes of East 13th Street is equivalent to the cost of the contemplated paving of 570th Avenue north of Fast 13th Street to the north boundary of the Site. Therefore, in consideration of the Developer causing the reconstruction of the said existing two lanes of Fast 13th Street roadway to the standards of the City, and to be compliant with the statutory requirements for public bidding of street improvements, the City shall, subject to its governmental discretion and in accordance with statutory procedures, award a contract for the construction of the 57e Avenue roadway to City standards for the full width of the roadway from the north line of Fast 13th Street to the north line of the Site. 2. Dgyel=r, ? espmi: il_ity. The Developer shall construct at its sole expense, to the standards of the City, all the improvements stated in the Traffic Study, plus the reconstruction to City standards of the full width of roadway on East 13th Street adjacent to the Site, extending from the easterly most paint on the I-3 5 interchange ramp to the east line of the Site. Notwithstanding the foregoing, Developer and City agree that Developer shall not be required to construct any East 13th Street improvements east from 570th Avenue to the east boundary of the Fast Barilla Site until a final plat is filed with respect to the Fast 139nMa Site. However, the Developer and City agree that if development by anyone occurs on M 1 2y land in the vicinity of the Site, and east of 57& Avenue, or if improvements are needed due to road condition or traffic volume, the Developer shall proceed immediately with the construction of the said East 13'h Street east from 570f Avenue to the east boundary of the East Barilla Site as an industrial street meeting City standards, plus the improvements for that street segment detailed in the above stated Traffic Study, upon receipt of written notice from the City to do so. C. Develo er Res onsibtii f r .. Tr r', By way of specification but not limitation It is agreed that Developer, at its sole cost, shall construct all of the roadway and right--of-way improvements specified in the Trafle Study, including, without limitation, lane wid.ening/reconstruction, turn lanes, and traffic signals, plus work required by the FHWA or 11DOT, but excluding warp to be performed by the City pursuant to Section 7. 9(B)(l) hereof: If the Traffic Study is modified and such modifications are approved by the City, Developer shall be bound by such modifications to the Traffic Study. D. East L2ft S r Acc s Points. The City acknowledges that the Developer shall be allowed access points for the Site as shown on Appendix E, conceptual Site Plan, subject to the requirements of the iDOT, the City, and the FHWA. 7.10 Permits and Apwrovakwfthheld It is understood and agreed that the City shall issue no permits or approvals with respect to any work or installations on the Site until Developer has performed or completed all of Developer's obligations under Article 7 or work is in progress to complete those obligations. If a permit or approval is issued by the City based on such work in progress, and such progress should cease for any reason, the City shall issue no further permits or approvals until progress on such work is resumed, 7,11 Le eaf Cregfift, To secure the completion of the public infrastructurerequirements of Article 7, except for *intercha.nge improvements and improvements east of 57COAvenue, Developer shall provide as a condition for approval of a final plat a letter of credit to the benefit of the City in such amount as shall be reasonably required by the City's engineers, in a form approved by the City's attorney. Said letter of credit shall be maintained in effect until the said inffastructure requirements are completed and accepted by the City, but the letter of Credit may be replaced in lower amounts to reflect work that has been completed and accepted by the City. ARTICLE 8,6 FEES, PERMITS, AND EASEMENTS 8.1 Righifimf Haya Developer, without receipt of additional consideration other than the City" s execution of this Agreement, but after it acquires title to the Site, shall grant and dedicate to the City all additional rights of way for East 13th Street and 570th Avenue required by the City in conneeflon with the Project, as a condition precedent to any pemits or approvals by the City. -13- 8.2 Easements. Developer, without receipt of additional consideration other than the City's execution of this Agreement, but after it acquires title to the Site, shall rant to the City all necessary easements and licenses that the City deems necessary to establish and support public infrastructure improvements and facilities on the Site, as a condition precedent to any permits or approvals by the City. ARTICLE 9, EFFECT OF COVENANTS UPON DEVELOPER AND THE SITE 9.1 Covenants! Binding Upon Successors in Interest Duration. It is intended that the agreements and covenants provided in this Agreement shall be covenants running with the land and that they shall, in any event, and without regard to technical classification or designation, legal or otherwise, and except only as otherwise specifically provided in this Agreement, be binding, to the fullest extent permitted by law and equity, for the benefit and in favor of, and enforceable by, the City, its successors and assigns, against the Developer, its successors and assigns and every successor in interest to the Site, and the Improvements erected or to be erected thereon, or any part thereof until this Agreement is terminated, in whole or in part, pursuant to Article 10 hereof. 9.2 QU.'s- Rights ghts To Enforce. With respect to an area of land on the Site constituting the "foot print"' or parcel of a Major Anchor Store for which the City has issued a "certificate of occupancy" pursuant to the City"s Building Code, the obligations of this Agreement shall be released with respect to that "foot print" or parcel. In amplification, and not in restriction of the provisions of the preceding Section, it is intended and agreed that the City and its successors and assigns shall be deemed beneficiaries of the agreements and covenants provided in this Agreement, both for and in its own right and also for the purposes of protecting the interests of the community and other parties, public or private, in whose favor or for whose benefit such agreements and covenants have been provided. Such agreements and covenants shall run in favor of the City until this Agreement is terminated, in whale or in part, pursuant to Article 10 hereof and such agreements and covenants shall be in force and effect, without regard to whether the City has at any time been, remains, or is an owner of any land or interest therein to or in favor of which such agreements and covenants relate. The City shall have the right, in the event of any breach of any such agreement or covenant, to exercise all the rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach of agreement or covenant. The City intends to preserve and extend the enforceability of the agreements and covenants provided in this Article by filing appropriate claims in accordance with rows Code Sections 614,24 and 614.25. w 4- ARTICLE 10, NATURE OF COVENANTS -- TERMINATION 10.1 C nstruction of Covenants. The covenants contained in this Agreement are entered into by the Developer for the benefit of the City for purposes of Inducing the City to enact the Rezoning ordinance, Nothing contained in this Agreement shall be construed as a covenant by Developer or its successors and assigns to conduct an active business operation, whether continuous or otherwise, on any portion of the Site. 10.2 Condition Precedent to Developer's Obligations — Termination f r Failure to obtain Tinancipy. „If by December 1, 2007 Developer fads to obtain, written commitments for equity capital and funding and financing for construction of the North Site improvements required by 4.2 hereof, and submit to the City the evidence of financing and leases required by 5.3A and 5.3 B hereof with respect to the North Site, the City may then, as its remedy for Developer's failure of performance, repeal or ohange the zoning designation of the Site as the City deems appropriate and Developer shall have no cause of action against the City for or by reason of such repeal or change in zoning regulations. ARTICLE 11, REMEDIES s 11.1 In Ge��er 1 A. Except as otherwise specifically provided in this Agreement, in the event of a default by either party under this Agreement, the aggrieved party may, by written Notice of Default to the party in default, demand that it proceed immediately to cure or remedy such default, and in any event, complete such cure or remedy within ninety (90) days after receipt of such notice. B . In the event that Notice of Default is given as provided above and action to cure or remedy the default is not promptly taken or not diligently pursued, or the default is not cured or remedied within the time allowed, then the party in default may be declared to be in breach of this Agreement by the aggrieved party. C. In the event of a breach of this Agreement, in addition to such other rights as the aggrieved party may have hereunder, the aggrieved party may institute such proceedings as may be necessary or desirable in its opinion to cure and remedy such default or breach, including„ but not limited to, proceedings to compel specific performance by the party in breach of its obligations, It is further agreed that as an additional remedy for a breach of this Agreement by Developer, the City may repeal or change the zoning designations of the Site as the City deems appropriate, and Developer shah have no cause of action against the City for or by reason of such repeal or change in zoning regulations. ..t5,. 11.2 Dther Rights, and Remedies, No 'w fiver b Vela . City and Developer sham have the right to institute such actions or proceedings, as each may deem desirable for effectuating the purposes of this Article. Provided, that any delay by City or Developer in instituting or prosecuting any such actions or proceedings or otherwise asserting its rights shall not operate as a waiver of such rights or to deprive either City or Developer of or liml.t such rights in any way; it being the intent of this provision that City and Developer should not be constrained to exercise such remedies at a time when such party may still hope otherwise to resolve the problems created by the default involved so as to avoid the risk of being deprived of or limited in the exercise of such remedies because of concepts of waiver, laches, or otherwise. No waiver in fact made by City or Developer with respect to any specific default by the other party shall be considered or treated as a waiver of the rights of City or Developer with respect to any other defaults by the other party or with respect to the particular default, as the case may be, except to the extent specifically waived in writing by City or Developer. 11.3 Ri h s and Remedies Cumulative. The rights and remedies of the parties to this Agreement, -whether provided by law or by this Agreement, shall be cumulative, and the exercise by either party of any one or more of such remedies shall not preclude the exercise by it, at the same or different times, of any other such remedies for the sane default or breach or of any of its remedies for any default or breach by the other party. No waiver made by either party shall be deemed a waiver in any respect m regard to any other rights of the patty making the waiver or of any other obligations of the other party. ARTICLE 12. MISCELLANEOUS, 12.1 RemuentatL Yn of Indivi u u .i bl A. No member, official, employee, or agent of City shall be personally liable to Developer in the event of any default or breach by City or for any amount that may become due to Developer or for any obligations under the terns of this Agreement. . B. No member, manager, employee, or agent of Developer shall be personally liable to City in the event of any default or breach by Developer or for any amount that may become due to the City or for any obligations of Developer under the terms of this Agreement. C. Notwithstanding anything contained in this Agreement to the contrary, the person or persons executing this Agreement on behalf of either party shall incur no personal liability with respect to either party' s performance hereunder, 12.2 Dire, Eateuded Coverage Insurance. Developer shall keep in force fire and extended coverage insurance upon the Site improvements with insurance underwriters authorized to do business in the State of Iowa. The farm and amounts of such insurance shall be approved by the City, which approval shall not be *16w unreasonably withheld. Such insurance shall be in amounts and form satisfactory to Developer's lender. 12.3 Indernnitg, -..Fees,, Expensea. nnrr�i-i.r.wrr rr. — _.. Following Developer's acquisition of legal title to the Site, the Developer shall assume, defend, indemnify, protect and hold harmless the City and its officers, employees and agents from any and all claims, demands, actions or causes of action of whatsoever kind occasioned wholly or in part by any negligent act or omission of Developer and its contractors, agents or assigns arising out of or in any way connected with its possession of the Site, the construction of the Site improvements and the development of the Site. The Developer's obligation to indemnify and hold harmless shall include the obligation to pay all reasonable expenses incurred by the City in defending itself with regard to any of the aforementioned claims, or in enforcing the provisions of this paragraph, including all out-of-pocket expenses such as attorney's fees. Notwithstanding the above, Developer shall have no obligation to indemnify the City for any claims or causes of action resulting from the acts or ornissions of the City in the exercise of the City's rights under the easements reserved by the City for landscaping, exterior fixtures and maintenance: The Developer agrees that with respect to those portions of the Project that it awns and develops to pay, or cause to be paid, all license fees, permit fees, and insurance prermurm related to its possession of the Site, the construction of the Site improvements and the development of the Site. It is the intention of the parties that the City shall not incur pecuniary liability by reason of Developer's failure to comply with applicable Federal, State and local laws, rules, ordinances, regulations, orders, licenses and permits and the Developer shall indemnify and hold harmless the City and its officers, employees, and agents against all such claims by or on behalf of any person firm, or corporation, and all costs and expenses incurred in connection with any such claim or in connection with any action or proceeding brought thereon. Nothing contained in this Section 123 shall be construed to constitute any form of agreement by Developer to indemnify the City in connection with any third party chap enge s to the C ity' s power or authority to enter into this Agreement, the validity of the Rezoning ordinance, or any approvals required or otherwise granted in connection herewith by the City. 12.4 Qq.ffotj1fzu.ArjLntoro Surety br Partner. City is not a guarantor or surety for the completion of the Site improvements nor for any indebtedness incurred by Developer. It is mutually understood that nothing in this Agreement is intended or shall be construed as in any way creating or establishing; the relationship of copartners between the parties hereto, or as constituting Developer as a contractor, agent or representative of City for any purpose of in any manner whatsoever. 12.5 Time. Time is of the essence in the performance of this Agreement. 12.6 Titles of Articles and Sections. Titles of the several sections, subsections, and paragraphs of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of the provisions of this Agreement. 12.7 ALYreement -Binding on Successors in Interest. This Agreement shall inure to the benefit of and shall be binding upon successors and assigns of the parties. 12.8 Extensions for Non -WorWn.Z DaLs. In the event the last date for performing any act required by this Agreement falls upon a weekend day or holiday, then the time for performing such act shall be extended to the next following working day' 12.9 Notices. A notice, demand, or other communication under this Agreement by either party to the other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested; delivered personally; or seat by overnight courier service, as follows: A. In the case of Developer, addressed to: wolford Development Options, L.L.C. Attention: President Four Squares Business Center 1200 Mountain Creek Road, Suite 102 Chattanooga, TILT 37405 B. In the case of City, addressed to: City of Ames Attention.: City Clerk R o. Box 811 515 Clark Sheet Ames, Iowa 50010 or to such other address as dither may, from time to time, designate in writing and forward to the other as provided in this Article. 12*10 &ec2Wation, Following the effectiveness of the Zoning ordinance, the City Clerk shall cause this Agreement to be recorded at Developer's expense "n the land records of the Story County recorder's Office. A duplicate original of this Agreement and all the Appendices shall be maintained in the office of the City Clerk, City Hall, 515 Clark Street, Ames, Iowa, 50010, All expense of recording this Agreement and any of the documents contemplated by this Agreement to be recorded by City shall be paid by Developer within fifteen (15) days of notice from City of the amount thereof 12.11 Counterparts. This Agreement is executed M" two (2) counterparts, each of which shall constitute one and the same instrument. A copy of this Agreement, including all the Appendices shall be maintained in the office of the City Clerk of City, IN 'WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its name and behalf by its Mayor and its seal to be hereunto duly affixed and attested by its City Clerk, and the Developer has caused this Agreement to be duly executed in its name and behalf on or as of the day first above written. CITY' of AMES, IOWA, an Iowa municipal corporation By, Ted Tedesco, Mayor By( lane R Voss, City Clerk STATE of IOWA*, STORY COUNTY, ss: This *instrument was acknowledged before me on � the day of km�vv� - -.1 2005 by Ted Tedesco and Diane R. 'Voss, as Mayor and City Clerk, respectively, of the City of Ames, Iowa on behalf of whom this instrument was executed. Notary Public in afid forbe State of Iowa [Page 1 of 2 signature pages] JILL L. RIPPERGER COMMISSION # 146549 MY C04,'r'v- IS S10N EXPIRES ji- 0W �a 77 ZAU=W &40601\031agr-ames developmert-wdb,dao .19. WOLFORD DEVELOPMENT OPTIONS, L.L,C., a Nevada limited liability company By: �. - mes L. Wolford, Chi e ' anager STATE OFTP h, n COUNTY, ss: , This instrument was acknowledged before me on the day of C?J2,mbI,(-, 2005 by James L. Wolford, as Chief Manager of Wolford Development Options, L.L.C. on behalf of whom this instrument was executed. y��tt!ltflliltlll�'f�izz .-�. �rrrR�rfr 1/- 4'' `04STATE '�• :* t� , Notary Public in and for said State r O NNE 11[Page 2 of 2 signature pages] ._ Y � f OTPR P 044 k z dAw060110311gr-xmes dovelopnwnt•wdb.duo -20- APPENDIX A LEGAL DESCRIPTION OF THE SITE THAT PART OF THE WEST 1 /2 OF THE S OUTBEAS T 114 OF SECTION 31, TOWN S HYP 84 NORTH, RANGE 23 WEST OF THE 5TH RK, STORY COUNTY, IOWA, LYING EAST AND NORTH OF THE INTERSTATE HIGHWAY 3 5 RIGHT-OF-WAY AND CONTABQNG 59.72 ACRES, MORE OR LESS; AND THE INTERSTATE HIGHWAY 35 RIGHT-OF-WAY, CONTAINING 21.12 ACRES MORE OR LESS AND THAT PART OF THE SOUTHEAST 1 /4 OF THE SOUTHEAST 1/4 OF SECTION 31, TOWNSHIP 84 NORTH, RANGE 23 WEST OF THE 5TH RK, STORY COUNTY, IOWA, LYING NORTH OF THE INTERSTATE HIGHWAY 3 5 RIGHT-OF-WAY AND CONTA 4ING 39.90 ACRES, MORE OR LESS; AND THE INTERSTATE HIGHWAY 35 RIGHT-OF-WAY, CONTAD41NG 0.29 ACRES MORE OR LESS; AND THE NORTHEAST 1/4 OF THE SOUTHEAST 1l4 OF SECTION 31, TOWNSH P 84 NORTTI, RANGE 23 'VEST OF THE 5TH P. M. , STORY COUNTY, IOWA AND CONTAINING 40.02 ACRES, MORE OR. LESS. AND PARCEL "A" IN THE NORTHWEST FRACTIONAL QUARTER OF SECTION S, TOWNSHIP 93 NORTH, RANGE 23 WEST OF THE 5TH P.M., STORY COUNTY, IOWA, AS SHOWN ON THE "PLAT OF SURVEY (AMENDED)" FILED IN THE OFFICE OF THE RECORDER OF STORY COUNTY, IOWA, ON THE 12TH DAY OF DECEMBER, 1997, AND RECORDED IN BOOK 15, PAGE 90-91 AND CONTAMING 55.18 ACRES MORE OR LESS. .AND PARCEL "C" IN THE EAST FRACTIONAL HALF (E. FRL. 1/2) OF SECTION SIX (6), TOWNSH P EIGHTY-THREE (83) NORTH, RANGE Y- (23) 'LAST OF THE 5TH P.M., STORY COUNTY, IOWA, AS SHOWN ON THE '`PLAT OF SURVEY" FILED IN THE OFFICE OF THE RECORDER OF STORY" COUNTY, IOWA ON THE 22ND DAY OF DULY, 1997, AND RECORDED IN BOOR 15, PAGE 16 AND CONTARSUNG 96.61 ACRES, MORE OR. LESS. AND PART OF TBE EAST FRACTIONAL 1/2 OF SECTION 6, TOWNSHIP 83 NORTH, RANGE 23 WEST OF TIDE STH P.M,, STORY COUNTY, IOWA, LYING IN THE INTERSTATE MGHWA.Y RIGHT-OF-WAY, CONTAINING 10.09 ACRES MORE OR LESS. -21- APPENDIX B LEGAL DESCRIPTION OF THE NORTH SITE THAT PART OF THE WEST 112 OF THE SOUTBEAST 1/4 OF SECTION 31, TOWNSHIP 84 NORTH, RANGE 23 WEST OF THE 5TH P.M., STORY COUNTY, IOWA, LYING EAST AND NORTH OF THE INTERSTATE 1-UGHWAY 3 5 RIGHT-OF-WAY AND CONTARZNG 59.72 ACRES, MORE OR LESS; AND THE INTERSTATE HIGHWAY 35 RIGHT-OF-WAY, CONTAE%nNG 21.12 ACRES MORE OR LESS; THAT PART OF THE SOUTHEAST I/4 OF THE SOUTHEAST 1/4 OF SECTION 31, TOWNSHIP 84 NORTH, RANGE 23 WEST OF THE 5TH P.M., STORY COUNTY, IOWA, LYING NORTH OF THE INTERSTATE HIGHWAY 3 5 RIGHT-OF-WAY" AND CONTARONG 39.90 ACRES, MORE OR. LESS; AND THE =RS TATE FUGHWAY" 35 RIGHT-OF-WAY, CONTAINrNG 0.29 ACRES MORE OR LESS; THE NORTBEAST 1I4 OF THE SOUTHEAST 1/4 OF SECTION 3 I, TOWNSHIP 84 NORTH, RANGE 23 WEST OF THE 5TH P.M., STORY COUNTY, IOWA AND CONTAINING 40.02 ACRES, MORE OR LESS; PART OF THE EAST FRACTIONAL 1/2 OF SECTION 6, TOWNSHIP 83 NORTH, RANGE 23 NEST OF THE 5TH P.M., STORY COUNTY, IOWA, LYING IN THE INTEMTATE HIGHWAY RIGHT-OF-WAY, CONTAEqNG 10.09 ACRES MORE OR LESS. 50*0 APPENDIX C LEGAL DESCRIPTION OF SOUTH SITE PARCEL "C" IN THE EAST FRACTIONAL HALF (E. FRL. Vz) OF SECTION SIX (6), TOW NSHW EIGHTY-THREE (83) NORTH, RANUE TWENTY-TBREE (23) WEST OF THE 5TH P.M,, STORY COUNTY, IOWA, AS SHOWN ON THE "PLAT OF SURVEY" FILED IN THE OFFICE OF THE RECORDER OF STORY COUNTY, IOWA ON TIE 22ND DAY OF JULY, 1997, AND RECORDED YN BOOK 15, PAGE 16 AND CONTAINING 96.61 ACRES, MORE OR LESS. -23 APPENDIX D LEGAL DESCRIPTION OF THE EASY` BARILLA SITE PARCEL ",A," IN THE NORTHWEST FRACTIONAL QUARTER. OF SECTION 5, TOWNSHIP 83 NORTH, RANGE 23 WEST OF THE 5TH P.M., STORY COUNTY, IOWA, AS SHOWN ON THE "PLAT OF SURVEY (AMENDED)" FILED IN THE OFFICE OF THE RECORDER OF STORE" COUNTY, IOWA, ON THE 12TH DAY OF DECEMBER, 1997, AND RECORDED IN BOOK 15, PAGE 90-91 AND CONTARANG 55.18 ACRES MORE OR LESS. -24- dAw060lI03\W-arneg dovalopinan ..wdb.doo APPENDIX E CONCEPTUAL SITE PLAN .25. w L&W up* tift—Lowetyw t3sr w twevivin CMrier W Acres ou4m,em *ftt a" Acre* Fs twu OW"4 POWW* t#.Ai etas trawr~IAf111ibiI Awl 3AAaw Krbriwtn VON Ati guff4w Or a nrsw t"T" C D s KNOW AetdWM CZ) lumimm iw lAAt M *P. M. e, xmw* WWvi' +fnimum %rt►AW sty. Beer Miner Ate Bets M**W RR *OAW AP. i A"* tii - Land Ll" IMS& — Paws C~ We rawwrCw %w#ran*w 62ZI Aerm Outporew Trw t tigoAem Faft" Dowlsaptswrft ifaQ Acres it.tdopen>. 141AV asroliRmw � S"Aam i"Mcm,Awn.g. U wAwnea%w-V JAl at W41 Mk*ivx 0 iii VAr" 'JWAM ". WOLFORD DEVELOPMENT [OPTIONS, L.L.C., a Nevada limited liability company 7nes L. Wolford, Chief M alter STATE OF�� mo�C�.mm� " COUNTY, ss: , This instrument was acknowledged before me on the day of �,Iem 2005 by James L. Wolford, as Chief Manager of Wolford Development Options, G.L.C. on behalf of whom this instrument was executed. &WO Of se so - I ,a Notary Public in id for said State �, NO TARY �.pUBLIC Z of 2 signature es z, �4 r6 dA01\03\ gr-arncz dava1opnwrd-Wdb.dac w20w PO Box 771 • 35 4th Street West........... .... _................ . Kalispell, Montana 59903 www fl ath eadc itizen s. org Dwane K.ailey, District Administrator Montana Department of Transportation 2100 W Broadway PO Box 7039 Missoula, MT 59807-7039 Bear Mr. Kailey, t: 406-756.8993 ■ f: 406.756.8991 citizens@flatheadcitizens.org January 2, 2008 Citizens for a Better Flathead is deeply concerned that the relationship between the rapid growth occurring in Flathead County and the transportation infrastructure needed to sustain this growth and keep our local economy thriving is breaking down. This problem is well documented in the recently completed Kalispell Transportation Study. This study concludes that over $200 million dollars are needed over the next twenty years to address Kalispell's growth and transportation needs. These costs include $76 million for the Kalispell Bypass, $24 million for two additional ramped interchanges to make this bypass function properly once built, continued investments of federal dollars in the expansion of US Highways 93 and 2, and an estimated $112 million in other needed transportation improvements in the .Kalispell area to catch up with growth. The study also makes clear that these costs far exceed the funds estimated to be available to finance these improvements. At the same time, it points out that the completion of the Kalispell Bypass is fundamental to the success of other improvements identified. The study then concludes that many future projects will need to be financed by the private sector during the development process to assist with the construction and expansion of the transportation infrastructure. Given this background, the purpose of this letter is to further document for you our concerns over the letter you issued November 28Ih, 2007, (attached). Your letter endorsing the Glacier Town Center/ Mall developer's request for multiple -accesses with stoplights to US Hwy 93 north of Kalispell is not in keeping with the findings of the new Kalispell Transportation Plan. Furthermore, it is apparent, given MDT's failure to date to substantiate the position taken in this letter, that it was a premature conclusion, not based in documented findings. As such, the decision to approve this developer's request as set forth in this letter appears to be beyond your legal authority, and in direct conflict with MDT policy and state and federal laws. (See attached rationale.) Most importantly MDT's decision, encased in this -November 28'h letter, to allow a new series of p y _ stoplights at the northern terminus of the' Kalispell Bypass, blacks., the intended free --flow of traffic from this bypass north to Whitefish. By blocking this free flow of traffic north, your decision undermines the pledged $76 million federal dollar investment in the Kalispell Bypass. A-fterall, why build the bypass around downtown if you are just going to stop traffic again once it re --enters US Hwy 93 north? Even your letter of November 28 acknowledges that MDT believes a junior interchange could provide increased safety and mobility over stoplights. Your letter, however, concludes that you do not believe that you have the authority to "require" the developer to install this interchange. our letter lays out why state and federal law (see attached rationale) do not allow you to simply endorse this developer's request for new accesses to US Hwy 93. we also lay out a proposal for an independent professional review to provide peer review of this access request with the goal of finding a better solution for this and future development proposals in this corridor. MDT's own regulations require that any modification to a controlled access resolution, as is in place for US Hwy 93 from Kalispell north of reserve Street to whitefish, be based on findings considered and approved by the Montana Transportation Commission. In response to my phone request on November 20 you acknowledged that you had no data available to justify your November 20' letter. In addition, you have failed to respond to subsequent requests to provide me any findings and supporting data upon which you based your letter. we are forced to conclude that this information did not exist when you issued your letter on November 28th as is required by state lave MCA 2-4-103. A decision of this significance must now be subject to both the additional review and consideration of alternatives under NEPA, the National Environmental Policy Act, and MEPA, the Montana Environmental Policy Act before any recommendation is made to the Transportation Commission. Finally, we are deeply concerned regarding the timing of this letter. This coupled with the fact that your letter was the product of a closed door, non-public meeting with the developer just the day before the Planning Board public hearing on the Glacier Mall is suspicious. This timing prevented reasonable public review and comment on this letter. It also allowed your letter to be used by the developer at the public hearing to argue that the city had no authority to deny his proposed transportation access plan for this mall despite its conflict with local planing documents and grave concerns expressed by this board. We urge you to withdraw your letter of November 28 h and comply with MDT policy and state and federal law in further consideration of this access request. we fully realize the political and economic pressures that MDT and the City are under to reach a decision on this developer's request for the largest commercial expansion in the County's history. Yet, if this commercial expansion is warranted and viable then the public needs to be assured that the developer will provide the extensive transportation infrastructure needed to make it a success without undermining the public investment in the US Hwy 93 Bypass. A city council member recently responded to the developer's traffic consultant's assertion that MDT had given their mall project its "blessing." He pointed out that the MDT had also given its blessing to highway accesses south of this project that have required subsequent and costly modifications and still have left us with failing intersections and traffic gridlock. we can and must do better. The most constructive course of action at this point would be for the developer, the city, and the MDT to place this development application on hold. Next MDT should immediately hire an independent consultant with the expertise needed for a peer review of this transportation proposal to help identify and understand potential effective solutions. 2 CMZENS FOR A BETTER FLA We recommend retaining the services of Dan Burden, a nationally recognized specialist in transportation and land use planning. In 2001, "Time" magazine cited Mr. Burden as one of six international "civic innovators." He was selected as the "Distinguished Lecturer" for the 2001 Transportation Research Board (National Academy of Sciences). with over 25 years of experience and work in over 200 communities across the country, he is considered a national expert on traffic calming, street corridor and intersection design, walkability and bicycling and is recognized for his communications expertise in charrettes, visioning, and other citizen participation techniques. Since 2005, he has served as Senior Urban Designer and now Principal with the engineering firm of Glatting Jackson Kercher Anglin, Inc, as well as the founder and executive director of Walkable Communities, Inc., a nonprofit corporation that helps develop walkable communities, since 1996. MDT is well acquainted with Mr. Burden's expertise having retained him as a trainer for MDT staff and for consultation on transportation projects in the state. Locally, Mr. Burden was retained a few years ago by the MDT to assist the community of Bigfork with developing a corridor plan for the section of Hwy 3 5 through Bigfork. This successful planning process united diverse parties in endorsing and adopting a "community friendly" redesign of this highway corridor. The stakes are high. Highway 93 will continue to be a critical thoroughfare for tourists, businesses and residents. It is crucial that this stretch of road be developed in compliance with the law and in a manner that enhances the community into the future. We only have one opportunity to get this right. An investment in such professional and impartial expertise at this critical juncture can help avoid costly and divisive delay of this land use decision. We recognize that the city has identified this project area north of the city as appropriate for additional commercial and residential development and believe that sound solutions are possible to allow development proposals to move forward and are committed to working to find such solutions. Sincerely, Mayre Flowers Executive Director, Citizens for a Better Flathead Attachments: ➢ Rationale and Basis for Argument that the MDT Letter of November 28`h is Premature and Not Compliant with MDT Policy and Mate and Federal Laver. MDT's letter of November 28, 2007 MDT's letter of November 27, 2007 cc Governor Brian D . Schweitzer Hal Harper, Chief Policy Advisor Office of the Governor Director Jim Lynch, MDT Senator Max Baucus Senator Jon Tester Kalispell City Council Kalispell City Planning Board Whitefish City Council Flathead County Commissioners W olWoldford Development Jim Skinner, MDT Mike Tierney, MDT Federal Highway Administration Flathead Legislators Tim Davis, Montana Smart Growth Coalition P.O. Box 771 KALISPELL, MT 59"3 406.756.8993 FAx: 406.756.8991 EMAIL*' CITIZENS@FLATHPADCITIZENS.ORG ❑NUNE! WWW.1FL4T11EA.DC1nZENS.0RG Rationale and :basis for Argument that the MDT Letter of November 281h is Premature and Not Compliant with MDT Policy and State and Federal Law. The intent and goals for the committed $76 million federal and state investment in the Kalispell Bypass is not being upheld. If your decision stands, allowing this major traffic increase from the Glacier Mall on to US Hwy 93 (rather than other local streets that serve this property) through a series of stoplights, it will now prevent the intended continued free flow of traffic north to whitefish from this bypass. Furthermore, it will establish some of the worse traffic gridlock in the state created by these new proposed Stoplights for the Glacier Mall to the north coupled with three intersections to the south including the bypass terminus intersection of Reserve and US Hwy 93, all of which are currently operating at a failing level of service of D or F at peak hours. It will also set a problematic precedent for additional access requests in this Kalispell to whitefish corridor. The position taken by MDT in its November 2$1h letter endorsing signalized accesses to US Hwy 93 is contradictory to the department's position that seven overpasses were needed to conserve the capacity of the Kalispell Bypass and associated road networks. It is also contradictory of MDT's own extraordinary, and without precedent, recent investment in a US Hwy 93 junior interchange just north of the proposed Glacier Mall to serve new development at the intersection of Church Drive and US Hwy 93. Analysis of the traffic impacts from the proposed Glacier Mali, a 485 acre largely commercial project with some residential uses, were not part of the final 2006 EIS for the Kalispell Bypass. These impacts and the proposed stoplights must now be reviewed under NLPA for their effects on the bypass and on the capacity of US Hwy 93. This is particularly important given the fact that the three intersections to the south including the bypass terminus intersection of Reserve and US Hwy 93 arc currently at a level of service D or F at peak hours. MDOT regulations require that any modification to a controlled access resolution, as is in place for US Hwy 93 from Kalispell north of Reserve Street to whitefish, is based on findings considered and approved by the Montana Transportation Commission. You have not only acknowledged that you had no data or findings available in response to my phone request for it on 11129, but have repeatedly failed to respond to subsequent requests to _provide me any findings and supporting data upon which you based your letter to the Glacier Mall Developer. This information apparently did not exist when you issued your letter on November 28th as is required by state law MCA 2-4- 103. Your letter, absent these findings and review by the Transportation Commission, exceeded your authority to issue a definitive position on the transportation plan for the Glacier Mall. • The Glacier Mall Transportation Impact Study (TIS) provided by the developer was based on false assumptions including assumptions that infrastructure improvements to Reserve and whitefish Stage Road are already in place, yet no funding is expected to be allocated for -such improvements for many years. The public pointed this out and your staff requested at the November 26"' meeting with the developer- that their Transportation Impact Study be revised to reflect accurate assumptions. The developer agreed at that meeting to provide these revisions later that day, yet your staff confirmed on 112108 that these revised figures or responses to Mike Tierney's letter of 11/27/07 have never been provided. Thus MDT's 11/28/07 approving proposed accesses to US Hwy 93 was based on an inaccurate TIS. • MDOT regulations require that a decision of this significance should be subject to additional review under NEPA, the National Environmental Policy Act, and MEPA, the Montana Environmental Policy Act before any recommendation is made. ARM 1.8.2.261, • MDT's Montana Right of way Manual, Chapter 8 on Access Management adopted in March 2007. This MDT policy establishes that access to US Hwy 93, which is part of the National Highway System, should be denied when accesses to other local roads is available unless it is proven that there will be a `f.significant benefit to the highway network." Access to at least two other local roads is available and no data has been provided to show any benefit from three main accesses on to US Hwy 93. ■ The Kalispell Growth Policy, the Kalispell Subdivision Regulation, and the new draft Kalispell Transportation Study. These planning documents provide findings that call for the use of a Junior Interchange at the proposed mall location to provide- access to Hwy 93 so as to preserve its safety and capacity. MDT's access management policies require the department to give- local planning regulations due consideration. • MDT's TransPlan 212002 Update: Access Management and Land Use Planning Policy Paper and state law. This policy and state law (see below), including the afore mentioned controlled access resolution passed by the Montana Highway Commission in 1989 for this highway corridor, empowers you and local governments with the "authority to require developers to mitigate transportation impacts" and to deny additional access, despite your letter assertion that you have no such ability. * Local planning authority and State laws including MCA 61r-8-331-332 , MCA 60-5- 101-111 and. MCA 61-12-101 empower MDOT and local governments to adopt regulations to regulate highway use to preserve safe movement of traffic. Your letter and decision fails to honor and support local planning documents that seep to conserve limited federal highway capacity and to ensure traffic safety. • MDT's federally required "Five Percent Report" identified this highway corridor as one of the top ten deadliest in the state. This fmcling emphasizes the need for greater access control and review under NEPA.. and MEPA of alternatives before any decision is reached. • MDT has the authority to eliminate at grade intersections on controlled -access highways as provided for in MCA 60-5-106. MCA 60-5-106 states that "Elimination of grade crossings. (1) Each highway authority may provide for elimination of intersections at grade of controlled -access highways or controlled -access facilities with existing federal -aid and state highways, county roads, and city or town streets. Elimination shall be accomplished at the boundary of the controlled -access right-of-way. (2) After the establishment of any controlled -access highway, or facility, no private or public highway or street which is not a part of the highway or facility shall intersect it at grade, except as may be provided in the resolution designating it a controlled -access highway or facility. No street, road, highway, or other public or private way shall be opened into or connected with any controlled -access highway or facility without the prior consent and approval of the appropriate highway authority which adopted the controlled - access resolution. (3) The commission may, whenever it determines that the public safety is not thereby impaired, authorize the continued intersection at grade of lightly traveled farm entrances and minor public roads as ways of access to controlled -access highways in sparsely populated rural areas. The commission shall have sole jurisdiction to determine the existence and location of any intersection with interstate highways, throughways, and other federal --aid and state highways. The deeded easements recorded for the Glacier Mau Property under the access control resolution passed in 1989 are not adequate or consistent with the proposed accesses for the Glacier Mall. These existing easements are limited to 30-40 feet in width and do not allow for the proposed uses, necessary easements, or locations of these uses in the Glacier Mall transportation plan. • The Glacier Null developer does not even own the property for which he is requesting his southern access. It is owned by another private land owner who has not made application for this access. Access permits for city owned public roads must be made by that local government body and these requests have not been made. • Allowing stoplights temporarily has not been documented as a sound alternative. Secondary. access to the property exist that could be developed for initial access until such time as construction of a junior interchange or similar solution can be put in place. • Under SAFETEA- LU, new federal transportation funding legislation, the statewide plan should include measures to ensure the preservation and most efficient use of the existing system. This has not been demonstrated for the Kalispell to whitefish US Hwy 93 corridor. • According to the Federal Highway Administration, which bears ultimate responsibility for decisions impacting national Highway System of which US Hwy 93 is a part, "NEPA requires and FHWA is committed to the examination and avoidance of potential impacts to the social and natural environment when considering approval of proposed transportation projects. In addition to evaluating the potential environmental effects, we must also take into account the transportation needs of the public in reaching a decision that is in the best overall public interest. The FHwA NEPA project development process is an approach to balanced transportation decisionmaking that takes into account the potential impacts on the human and natural environment and the public's need for safe and efficient transportation." The FHwA is also committed to review and analysis of the potential cumulative environmental impacts or effects (ecological, aesthetic, historic, cultural, economic, social, or health) of its projects and actions. Fa =L7 0 1p I,�. . . ........ 1 ram. r- r ii • • Stillwater River • West Reserve Drive Legend Dedicated Roads I Private Easement-Adj. Property Owner Private Easement-AdJ, . Property Owner Owns To Center Line of Alley Sri acier Town Center ■Roadway Ownership ■ August 6, 2007 A NORTH KahspeU, Montana WOLFORD DEVELOPMEM, INC. ! onean t W /YyeR LU r 1 i _ < E - m LU F— n, M7 t Ix y Uj lo- cc w - � Z •.'; � � i,,.-tom lx LRESERVE DR -+ WRESE Lr Uj ow 0 - Y" • sJ �_ ( • _ - 4 III / � "co -MILE -DR - THREE MILE OR w "woo - !T OIL h i FOYS NtE RQ �N1 ` Ilk- 3 R � i P d ROCKY CLIFF EAR I # *^ * � 4 0.59 Well Under Capacity) (LDS A, 8) [Ell � �-- > 0.60 - 0.79 Under Capacity (LC35 C) i Ir ..■ > 0.80 - 0.99 At Or Nearing Capacity (LOS a, E) > 1. 00 Over Capacity (LOS F) ry . TRANSPORTATION PLAN euN©R Figure 5-3 �n.•� FUTURE HWY 93 BYPASS _ Existing (2 • ► T • s � s ar � : r 4.o� � V/C Ratios scabs in roe LU X , T• Y Y iN r RESERVE DR +r L?R " EVERGREEN 0 � �•�`' ;, THREE .All , E go Li *� CEMETERq RD ROCKY CLIFF p +i i t 0.59 Well Under Capacity (LOS A, g) 1 i U ru �- .so - Q° 79 Urbdr Capacity (LQS C) � wc+ � � ► > D.80 - 0.9� At Or Nearang. Capaaty (tC)S D) Future V/C Ratios 1,D Over +Capacity (LC3S F) TRANSPORTATION PLAN BOUNDARY Tr n s a d Travel FUTURE 'HWY 93 BYPASS Demand Model = 1' 0 W V a r 0 0 011, 0 4,000 8,000 E + C Network (Year 2030) i So* in Feet